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1974 Supreme(P&H) 43
PUNJAB & HARYANA HIGH COURT
A.D.Koshal, J.
Ravel Singh
Versus
State Of Punjab
Criminal Revision No. 624 of 1972,
Decided On : MARCH 11, 1974
An affidavit contemplated by section 510A of the Code of Criminal Procedure has to be sworn as prescribed in section 539 or before a Magistrate. The manner in which it has to be sworn is specified in paragraphs 11 to 15 and the forms extracted above.
Headnote:
OPIUM ACT - SECTION 9 - AFFIDAVITS - REQUIREMENTS - ATTESTATION - SUFFICIENCY - EVIDENCE - ADMISSIBILITY - OATHS ACT, 1969, SECTION 7.
Fact of the Case:
Four petitioners were convicted under section 9 of the Opium Act for possession of opium. The prosecution sought to prove that the substance recovered from the petitioners was opium by means of affidavits. The affidavits were attested by Judicial Magistrates, but they did not contain any certificate that the deponents had declared the statements contained therein before the magistrate.
Finding of the Court:
The court held that the affidavits were not properly attested and could not be accepted as evidence. The court relied on the provisions of sections 510A, 539, 539AA, and 554 of the Code of Criminal Procedure, as well as paragraphs 11 to 15 of Part B of Chapter 12 of the Rules and Orders of the Punjab and Haryana High Court. The court held that the affidavits did not meet the minimum requirements of a proper attestation and that they had been improperly received in evidence.
Issues: Whether the affidavits were properly attested and could be accepted as evidence.
Ratio Decidendi: The court held that an affidavit contemplated by section 510A of the Code of Criminal Procedure has to be sworn as prescribed in section 539 or before a Magistrate. The manner in which it has to be sworn is specified in paragraphs 11 to 15 and the forms extracted above. The word "Attested" or the words "R-O. and attested" appearing on the various affidavits produce in the four cases under examination cannot be taken to mean that the deponent concerned who appeared before the attesting officer, was known to him or was identified by some body and declared that the statements made in the affidavit were his own.
Final Decision: The court set aside the convictions and sentences of the petitioners and acquitted them of the charges.
A.D.Koshal, J.
1. By this judgment, I shall dispose of four petitions under section 439 of the Code of Criminal Procedure, being Criminal Revisions Nos. 624, 626, 658 and 661 of 1972 in which a common question of law has been raised and in each one of which the petitioner seeks the revision of the judgment of an Additional Sessions Judge dismissing his appeal against his conviction of an offence under section 9 of the Opium Act and the sentence imposed upon him in consequence.
2. In Criminal Revision No. 624 of 1972, the petitioner is Rawel Singh, aged 45 years, a resident of Patiala. He was said to have been apprehended on the 16th December, 1970, by Head Constable Surjit Singh and to have been found in possession of 300 grams of opium. The fact that the substance recovered from him was opium was sought to be proved at the trial by means of affidavits, Exhibits PE and PF. The former purports to be a statement on oath by Baldev Krishan, Constable No. 856, and the later by Joginder Singh, Constable No. 262, of the C.I.A. Staff, Patiala. The contents of these affidavits, in a nutshell, were that a sample of the substance recovered from the petitioner remained in the custody of the deponents till it reached the Chemical Examiner who found it to be opium. Each of the affidavits bears the signature of the deponent. The signature of a Prosecuting Sub Inspector underneath the word "Identified" and the signature and designation of Shri baldev Singh, Judicial Magistrate II Class, Patiala, underneath the word "Attested".
The petitioner was tried by Shri Niranjan Singh Judicial Magistrate 1st Class, Patiala, was convicted as aforesaid and was sentenced to rigorous imprisonment for six months as well as a fine of Rs. 100/-, the sentence in default of payment of fine being rigorous imprisonment for two months. His appeal was dismissed on the 29th June, 1972 by Shri Dev Raj Saini, Additional Sessions Judge, Patiala.
3. The Petitioner in Criminal Revision No. 626 of 1972 is Jaga Ram, aged 22 years, a resident of Maur Mandi, from whose possession opium weighing 8 kilograms is alleged to have been recovered on 14th February, 1970, by Sub-Inspector Sarmukh Singh of Police Station, Maur. In this case also, two affidavits were produced in order to show that a sample of the commodity recovered from the possession of the petitioner reached the Chemical Examiner, who found the same to be opium, in fact. Those affidavits are Exhibits P.W. 3 and P.W.4 and each one of them bears the signature of a Judicial Magistrate 1st Class below the word "Attested".
The petitioner was tried by Shri Sarwan Singh Chahal, Judicial Magistrate 1st Class, Bhatinda, was convicted as mentioned earlier and was sentenced to rigorous imprisonment for two years and a fine of Rs. 2000/-, the sentence in default of payment of fine being rigorous imprisonment for four months. His appeal was dismissed by Shri Raj Kumar Sharma, Additional Sessions Judge, Bhatinda, on the 23rd June, 1972.
4. The petitioner in Criminal Revision No. 658 of 1972 is Surjit Singh aged 20 years, a resident of village Ghanpur Kale. In his case also, the sample analysed by the Chemical Examiner and found to be opium, was sought to be connected with the seized commodity by means of two affidavits which are Exhibits PE and PF. Each of them bears the certificate :-
"I identify the deponent and he had signed in my presence".
The certificate bears the signature of a Prosecuting Sub-Inspector. Each of the affidavits also bears another certificate in the following terms :-
"R.O. and attested".
This certificate purports to bear the signature of a magistrate of the First Class.
The trial of the petitioner ended in his conviction by Shri Hari Ram, Chief Judicial magistrate, Jind, who sentenced him to rigorous imprisonment for two years and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for six months. His appeal was dismissed on the 23rd May, 1972 by Shri R.L. Garg
