N. S. Nehra, J. - Sham Lal petitioner, vide judgment order dated 28-1-1986 passed by the Judicial Magistrate 1st Class, Faridabad, was convicted under section 9 of the opium Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. The appeal filed by the petitioner was dismissed on 13.5.1986. Hence this revision petition.
2. The prosecutin story, in brief, is as follows :-
3. S. I. Ram Kishan accompanied by ASI Rohtas Singh, Head Constable Hardwari Lal and other Constable, as well as Girraj Singh, resident of village Badoli, was present in front of the Syndicate Bank, Faridabad on 12-7-1983. A secret information was received by Sub Inspector Ram Kishan that the petitioner and two other having one bag each on their shoulders were coming from the side of old Faridabad and they were having opium in their bags. Sub Inspector Ram Kishan arranged a nakabandi and the petitioner was apprehended. His person was searched and he was found carrying a bag containing opium which, on weighment, was found to be 2 kgs. A sample of 20 grams was separated, put into a match-box and sealed. The remaining part of the opium was separately sealed. The seal, after use, was handed over to Girraj Singh PW. The sample was sent to the Chemical Examiner, who vide report Exhibit PX, opined that it was opium.
4. The prosecution produced ASI Rohtas Singh PW-1 and Sub Inspector Ram Kishan PW-2.
5. Ram Kishan DW-1 and Constable Ram Kumar DW-2 were produced in defence.
6. The prosecution did not examine Girraj Singh PW and he was given up.
7. After tendering report Exhibit PX of the Chemical Examiner in evidence the Public Prosecutor closed the evidence of the prosecution on 2-12-1985.
8. The statement of petitioner under section 313 of the Code of Criminal Procedure was recorded on 5-12-1985. Written arguments were submitted by the learned counsel for the petitioner on 17.1.1980, which found mention in the interim order dated 27-1-1986 passed by the Judicial Magistrate 1st Class, Faridabad, which reads :
"Written arguments have been filed by the accused. No books, however, have been shown/cited. The accused has been asked to supply the books by the close of the day today. To come up on 28-1-86 for orders."
9. The petitioner's counsel in the trial Court submitted in the written arguments in subparagraph (6) that the link evidence is missing in this case; that the constable who deposited the recovered opium, the Moharrir Head Constable with whom the recovered opium was deposited and the constable who took the sample to the Chemical Examiner, have not been examined. He further submitted that the affidavits of the aforesaid persons have not been tendered in evidence by the prosecution and that, since the link evidence is missing, therefore, the accused is entitled to be acquitted. He further submitted that the affidavits of Constable Rajinder Singh and Moharir Head Constable Chattar Singh were exhibited only on 28-1-1986 by the Judicial Magistrate as Exhibits C- I and C-2 before pronouncing the judgment of conviction of the petitioner.
10. Mr. Amarjit Markan, Advocate, learned counsel for the petitioner, has argued that the link evidence is missing in this case and, as such, the Cheminal Examiner's report Exhibit PX cannot be read into evidence. He has further submitted that the Constable who deposited the alleged opium recovered from the petitioner, the Moharrir Head Constable with whom the opium was deposited and the Constable who had gone to hand over the same to the Chemical Examiner have not been examined and that, therefore, no reliance can be placed upon report Exhibit PX of the Chemical Examiner. It has been further contended by the learned counsel for the petitioner that, since the affidavits, Exhibits C-1 and C-2, of Constable Rajinder Singh and Moharrir Head Constable Chattar Singh were not tendered in evidence by the prosecution, therefore, these affidavits cannot be read into evidence; and that, since affidavits, Exhibits C-I and C-2 were not put to the petitioner when his statement under section 313 of the Code of Criminal Procedure was recorded by the Trial Magistrate, therefore, these affidavits must be completely excluded from consideration.
11. After hearing the learned counsel for the petitioner, I hold that any circumstance which was not put to the accused in his statement under section 313 of the Code of Criminal Procedure cannot be used against him. The affidavits, Exhibits C-1 and C-2, have to be excluded from consideration, because these affidavits were not put to the petitioner when his statement under section 313 of the Code of Criminal Procedure was recorded by the Trial Magistrate. The link evidence is missing. Therefore, report Exhibit PX of the Chemical Examiner cannot be read into evidence. Constable Rajinder Singh and Moharrir Head Constable Chattar Singh had not been examined by the prosecution and their affidavits were also not tendered into evidnece by the prosecution. The Trial Court has erred in law in accepting the affidavits (Exhibits C-1 and C-2) of Constables Rajinder Singh and Moharrir Head Constable Chattar Singh before pronouncing the judgment.
12. In view of the above-mentioned discussion, this revision petition is allowed the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.