ORDER
M.M. Punchhi, J.
1. The petitioner is aggrieved against the appellate order of the Additional Sessions Judge (III), Sangrur, whereby on the acceptance of his appeal, the case was remanded to the Judicial Magistrate Ist Class, Dhuri, for a fresh decision after the prosecution could tender fresh affidavits of the two police functionaries by way of additional evidence.
2. The case of the prosecution was that on September 30, 1984, the petitioner was seen coming on a cycle when he was intercepted by the police party headed by Head Constable Sardara Singh. On the carrier of his cycle, there was tied a tin wrapped up, which on opening contained 151/2 KGs of opium. A sample of 10 grams was separated therefrom by H. C. Sardara Singh, which was duly sealed separately. The case property and the sample were deposited by H. C. Sardara Singh with the AMHC Karam Singh at the Police Station on return.
3. At the trial, the prosecution examined Constable Harvinder Singh PW-l and HC Sardara Singh PW-2 with regard to the occurrence. Avtar Singh PW-3 and AMHC Karam Singh PW-4 tendered their affidavits, Exhibits PG and PF respectively, with regard to the deposit of the case property in the Malkhana and the sample being sent to the Chemical Examiner. The prosecution then closed its case, whereafter the trial was con-eluded, as ordained by law. The petitioner was finally convicted and sentenced by the Judicial Magistrate Ist Class, Dhuri, on September 9, 1986. He preferred an appeal in the Court of Session, Sangrur. The Additional Sessions Judge (III), Sangrur, was impressed by the argument of the petitioner that the affidavits of Constable Avtar Singh and AMHC Karam Singh were defeative and thus could not be relied upon to prove that the substance recovered was opium. However, instead of giving the benefit thereof to the petitioner, he set aside the conviction and sectence of the petitioner and remanded the, case back for fresh decision in accordance with law after letting the prosecution tender fresh affidavits of the aforesaid two police functionaries. It is to challenge that view that the petitioner has come to this Court.
4. The effort of the prosecution to have the ease remanded back was even resisted by the petitioner before the Additional Sessions Judge, though unsuccessfully. The law in that regard is well settled. The Code of Criminal Procedure gives ample power to the appellate Court to deal appropriately with different cases, but the dixretion should not be exercised to fill up gaps or lacuna in the prosecution case, and the power is to be exercised sparingly and only in suitable cases. For reference, see Rajeswar Prasad Misra v. The Stale of West Bengal, AIR 1965 SC 1887 : (1965 (2) Cri LJ 817), and Bir Singh v. The State of U.P., AIR 1978 SC 59 : (1978 Cri LJ 1177). In the instant case, as is evident, the prosecution made no effort to file correct affidavits of the two functionaries. It was at the appellate stage when the conviction was found to be defective that the prosecution woke up to fill up its lacuna. The fact remains, that the conviction of the petitioner was recorded in the absence of legal link evidence to establish that the substance recovered was opium. The matter perhaps would have been different had the prosecution woke up to its mistake while the trial was pending. Here that stage was allowed to be crossed over by the prosecution. In the nature of things, the remand will have the effect of allowing the prosecution to fill up the lacuna in the case, which would not further the cause of justice. In three single Bench decisions of this Court reported in Santokh Singh v. The State of Haryana, 1975 Chand LR (Cri) 119, Amir Chand v. State of Haryana, 1976 Chand LR (Cri) 269 and Harjeet Singh v. The State of Haryana, 1988 (1) Chand LR (Cri) 81 the defects in the affidavits were held to be fatal, and in the former two cases, the remand orders were quashed. I am also in agreement with the views expressed there and I feel that in the instant case the prosecution cannot be allowed to improve its case on remand.
5. As a result of the above discussion, this petition succeeds, the order of the Additional Sessions Judge (III), Sangrur, is modified to the extent that there shall be no remand order and instead the petitioner shall be acquitted of the charge. Fine, if paid, be refunded to him.