IMPORTANT POINT
In an evidence by way of affidavit u/s. 297(2), Cr. P.C. deponent is required to swear as to what facts are within his personal knowledge and what facts are based on his reasonable belief to be true.

JUDGMENT (ORAL)

Jai Singh Sekhon, J. – The appellant was tried and convicted by the learned Additional Sessions Judge Patiala, on a charge for offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of 20 kilograms of poppy husk. He was awarded sentence of rigorous imprisonment for ten years and fine of Rs. 1,00,000/- or in default of payment thereof to further undergo rigorous imprisonment for two and a half years. Feeling against his conviction and sentence, he has come up in appeal.

2. In brief, the facts of the prosecution case are that Assistant Sub-Inspector Gurlal Singh (P.W.3) alongwith Constable Ranjit Singh (P.W. 1) and other police officials, was proceeding from Village Jogewal to village Naiwala in the course of usual patrolling. When this party reached near the canal bridge on the Bhakra canal in the area of Village Naiwala, Gopi Ram accused happened to accost. He tried to slip away at the sight of the police party, which resulted in his apprehension. He was found carrying a gunny bag on his head. The gunny bag contained 20 kilograms of poppy husk. A sample of 200 grams of poppy husk was separated and sealed while the remaining poppy husk was also seized after putting in a sealed parcel. The sample of poppy husk was sent to the Chemical Examiner, who vide report (Exhibit P.D.) confirmed it to be of poppy husk due to the presence of morphine and meconic acid therein.

3. After completion of investigation, the accused was arraigned for trial on such, like allegations by submitting the charge, sheet before the trial Court.

4. Before the trial Court, in order to prove its above-referred case the, prosecution examined Constable Ranjit Singh (P.W. 1) and Assistant Sub-Inspector Gurlal Singh (P.W. 3) as witnesses to the actual occurrence while Assistant Moharrir Head Constable Mohinder Singh (P.W. 2) deposed about the registration of First Information Report. Formal evidence of Constable Balbir Singh (No. 1937) and Constable Balbir Singh (No. 906) was tendered on affidavits which were ordered to be read as statements of P.W. 4 and P.W. 5, respectively, as these witnesses were not required for cross-examination purpose- by the defence. The report (Exhibit P.D.) of the Chemical Examiner was also tendered in evidence.

5. The version of the accused-appellant before the trial Court was that of innocence and false implication. In defence, he examined Lakhi Ram (D.W. 1), a co-villager, who simply deposed that the accused was apprehended by the police from his village Gulahar at about 2/2½ A.M. as per information supplied to him by his father and thereafter he accompanied the father of the accused to Police Post Shatrana at 617 A.M.

6. The trial Court, however, believing the prosecution evidence coupled with the report of the Chemical Examiner, convicted and sentenced the appellant, as referred above. The defence version did not find favor with the trial Court.

7. Mr. Sanjay Majithia, learned counsel for the appellant, inter alia contends that the affidavits of P.W. 4 and P.W. 5 of the Constable Balbir Singh (No. 1937), who was at that time working as Moharrir Constable, and Constable Balbir Singh (No. 906) cannot be read in evidence as these are not properly sworn in accordance with the provisions of sub-section (2) of Section 297 of the Code of Criminal Procedure. Mr. G.S. Nahar, learned Assistant Advocate General, Punjab, on the other hand, maintains that the legal defect in the affidavits could at the most call for remanding the case for fresh trial; and in view of the gravity of the offence involved, the appellant should not be acquired on technical defect.

The provisions of sub-section (2) of Section 297, Criminal Procedure Code, read as under:

"297. (1) xx xx xx xx

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has