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CASE NO.: Appeal (crl.)  763 of 1997

PETITIONER: State of Punjab                                                  

RESPONDENT: Sawaran Singh                                                    

DATE OF JUDGMENT: 25/07/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       This is an appeal preferred by the State of Punjab against the decision  of the Division Bench of the Punjab & Haryana High Court in Criminal Appeal  No. 282-SB of 1995.  By the impugned Judgment, the learned Single Judge  acquitted the respondent for the offence under Section 18 of the NDPS Act,  1985.

       The prosecution case was that on 17.5.1992, the Station House Officer  of Police Station, Voltoha,  accompanied by ASI Nirmal Singh and LC  Balwinder Singh were proceeding from Amarkot to Mehmoodpura on patrol  duty.  When they reached Mehmoodpura, they saw accused Swaran Singh  coming from the  opposite side.    On seeing the police party, the  accused  sat down  by the side of the  road as if to answer the call of the nature.     Accused  Swaran Singh was apprehended and he was told that he was to be  searched and if he so desired  the search would be conducted in the presence  of a Gazetted Officer or a Magistrate.  The accused did not desire to be  searched in the presence of a Gazatted Officer or Magistrate.

       On being searched, the accused was found carrying a plastic bag and  on further search it was revealed that  the bag contained a packet wrapped  in a glazed paper.  The contents of the bag were suspected to be opium.  The  substance weighed about 5 kg.  out of which a quantity of 10 grams was   taken for the purpose of sampling.  The sample as well as the remaining  quantity of  the recovered substance were sealed and taken into possession  by the Investigating Officer.  This sample was entrusted to the Police Station  Valtoha where the formal First Information Report was registered.  The  property recovered from the accused along with the samples was kept in the  Malkhana.  Subsequently the sample was sent for analysis to the Forensic  Science Laboratory and the  Exhibit PF certificate    confirmed  the sample  to  be opium.   

On the side of the prosecution, PW1 to PW 5 were examined.  Before  the Sessions Court, the accused raised several pleas including the violation of  Section 50 of NDPS Act.  The Sessions Judge held that the  recovery of  opium was  fully proved and the defence version that it was a false case was  not correct and that the accused had thus committed the offence punishable   under Section 18 of the NDPS Act.

       Challenging his conviction, the respondent accused preferred an  appeal before the High Court.  The learned Counsel for the accused raised a  plea that the evidence of PW 1 ASI Harbhajan Singh and the evidence of PW  4 MHC Gulzar Singh and the contents of the affidavit of Constable Anup  Singh Exh. PB  were not put to the accused while he was examined under  Section 313 Cr. PC.  Therefore, these items of evidence could not have been  used against the accused and based on the decision of the Punjab & Haryana

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High Court in Darshan Singh vs. State of Punjab 1995(3) Recent C.R. 365,  the accused was acquitted of all the charges.  This is challenged before us.

       We heard the learned  counsel for the appellant-State and the  learned  counsel for the respondent.

       The evidence of PW 1 was to the effect that on 17.5.1992, Inspector  Suba Singh handed over to him two sealed parcels pertaining to this case  bearing  the  impression ’SS’  along with   one bag and that the property was  kept in Malkhana by him.  On 9.6.1992, he handed over the property to PW 4  MHC Gulzar Singh.  During this period, there was no tampering with the seal  of the packets.  PW 4 MHC Gulzar Singh deposed that he had taken charge of  the property of this case on 9.6.1992 and the property consisted of two  parcels bearing the  seals ’SS’ and  that the samples were sealed and he had  sent the same for chemical examination on 23.6.1992 through Constable  Anup Singh.  During this   period, the   case property remained in his  possession and it was not   tampered.  The accused-respondent was  examined under Section 313 Cr. PC and he was put the following questions:-

Q.      It is in evidence against you that on your personal search  by Inspector Suba Singh, a plastic bag, Exh. P.2  containing opium wrapped in a glazed paper was  recovered, from which 10 gms. opium was taken out as   sample and made into a parcel and the remaining opium  4 kgs. 990 gms. was put in a separate dibba parcel, Ex.  P.1.  The sample and the parcel, Ex. P. 1,were separately  sealed with seal ’SS’.  The case property was taken into  possession vide recovery memo, Ex. PC, attested by the  PWs.  What you have to say?

A.      It is incorrect.

He was also asked:

Q.      It is in evidence against you that the sample of the opium  recovered from you was sent to the Chemical Examiner,  who vide his report, Ex. PF, opined that it contained  having 1% morphine.  What you have to say?

A.      It is incorrect.

He was also asked as to why this case was charged against him, why  the PWs had deposed against him and to a specific question as to whether he  wanted to say anything else, he answered that he was innocent and he had  been falsely implicated in this case.

       The only reason given by the learned Single Judge of the High Court  for acquitting the accused is that the evidence of PW 1 and PW 4 was not  specifically put to the accused under Section 313 Cr. PC and it was held that  in the absence of these facts in the form of questions to the accused, the  evidence could not have been used against him.  It is also pertinent to note  in this regard that when PW 1 and PW 4 were examined as witnesses, the  accused did not seriously dispute the evidence of PW 1 or PW 4. The only  cross examination was that it was incorrect to suggest that the case property  was not deposited with him and he had deposed falsely.   So also, the  evidence of PW 4  was not challenged in the cross-examination except for a  general suggestion that he had been deposing falsely and that no case  property was handed over to him by PW 1 Harbhajan Singh.    Accused had  no case that the seal was ever tampered with by any person and that there  was any case of  mistaken identity as regards the sample and that the report  of the Chemical Analyst was not of the same sample taken from the accused.   Except making  a general suggestion, the accused had completely admitted  the evidence of PW 1 and PW 4 as regards the receipt of the sample, sealing  of the same and sending it to the Chemical Analyst.  This was pointed out  only to show that the accused was not in any way prejudiced by the fact of

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not having been questioned  by making a specific reference to the evidence  of PW 1 and PW 4.  As regards the questioning of the accused under Section  313 Cr. PC, the relevant provision is as follows:-

"313. Power to examine the accused.\027 (1) In every inquiry  or trial, for the purpose of enabling the accused personally to  explain any circumstances appearing in the evidence against  him, the court\027

(a)     may at any stage, without previously warning the accused,  put such question to him as the court considers necessary;

(b)     shall, after the witnesses for the prosecution have been  examined and before he is called on the for his defence,  question him generally on the case:

Provided that in a summons case, where the court has  dispensed with the personal attendance of the accused, it may  also dispense with his examination under clause (b)

(2) No oath shall be administered to the accused when he is  examined under sub-section (1)

(3) The accused shall not render himself liable to punishment by  refusing to answer such questions, or by giving false answers to  them.

(4) The answers given by the accused may be taken into  consideration in such inquiry or trial, and put in evidence for or  against him in any other inquiry into, or trial for, any other  offence which such answers may tend to show he has  committed.

            The questioning of the accused is done to enable him to give an  opportunity to explain any circumstances which have come out in the  evidence against him.  It may be noticed that the entire evidence is  recorded in his presence and he is given full opportunity to cross examine  each and every witness examined on the prosecution side.  He is given  copies of all documents which are sought to be relied on  by the  prosecution.  Apart from all these,  as part of fair trial the accused is  given opportunity to give his explanation regarding the evidence adduced  by the prosecution.   However, it is not necessary that the entire  prosecution evidence need be put to him and answers elicited from the  accused.  If there were circumstances in the evidence which are adverse  to the accused and his explanation would help the court evaluating the  evidence properly, the court should bring the same  to the notice of the  accused to enable him  to give any explanation or answers for such  adverse circumstance in the evidence.  Generally. composite   questions  shall not be asked to accused bundling so many facts together.  Questions   must be  such that any reasonable person in the position of the accused   may be in a position to give rational explanation to the questions as had  been asked.  There shall not be failure of justice on account of an unfair  trial.

In State (Delhi Admn.) v. Dharampal (2001) 10 SCC 372, it was  held as under:

"That it is to be seen that where an omission, to bring the  attention of the accused to an inculpatory material has occurred,  that does not Ipso facto vitiate the proceedings. The accused  must show that failure of justice was occasioned by such

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omission. Further, in the event of an inculpatory material not  having been put to the accused, the appellant court can always  make good that lapse by calling upon the counsel for the  accused to show what explanation the accused has as regards  the circumstances established against the accused but not put  to him".    

In Jai Dev v. State of Punjab, AIR 1963 SC 612 it was observed  thus:

"The Ultimate test in determining whether or not the accused  has been fairly examined under Section 342 would be to inquire  whether, having regard to all the questions put to him, he did  get an opportunity to say what he wanted to say in respect of  prosecution case against him. If it appears that the examination  of the accused person was defective and thereby a prejudice has  been caused to him, that would no doubt be a serious infirmity."

In Bakhshish Singh v. State of Punjab, AIR 1967 SC 752, a three  judge bench of this Court held that:  

"\005. It was not all necessary that each separate piece of  evidence in support of a circumstance should be put to the  accused and he should be questioned in respect of it under that  section\005"

In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2  SCC 793 a three judge bench of this Court considering the fallout of omission  to put to the accused a question on a vital circumstance appearing against  him in the prosecution evidence, widening the sweep of the provision  concerning examination of the accused after closing prosecution evidence  made the following observations:

"It is trite law, nevertheless fundamental, that the prisoner’s  attention should be drawn to ever inculpatory material so as to  enable him to explain it. This is the basic fairness of a criminal  trial and failures in this area may gravely imperil the validity of  the trial itself, if consequential miscarriage of justice has flowed.  However, where such an omission has occurred it does not ipso  facto vitiate the proceedings and prejudice occasioned by such  defect must be established by the accused. In the event of  evidentiary material not being put to the accused, the court  must ordinarily eschew such material form consideration. It is  also open to the appellate court to call upon the counsel for the  accused to show what explanation the accused has as regards  the circumstance established against him not put to him if the  accused unable to offer the appellate court any plausible or  reasonable explanation of such circumstances, the court may  assume that no acceptable answer exists and that even if the  accused has been questioned at the proper time in the trial  court he would not have been able to furnish any good ground  to get out of the circumstances on which the trial court had  relied for its conviction."

       In the instant case, the accused was not in any way prejudiced by not  giving him an opportunity to answer specifically regarding the evidence of PW  1 and PW 4.  If at all, the evidence of PW 1 and PW 4 was recorded in his  presence, he had the opportunity to cross-examine the witnesses but he did  not specifically cross-examine these two witnesses in respect of the facts  deposed by them.  The learned Single Judge seriously erred in holding that

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the evidence of PW 1 and PW 4 could not have been used against the  accused.  The acquittal of the accused was improper as the evidence in this  case clearly established that the accused was in possession of 5 Kg of opium  and thereby committed the offence under Section 18 of the NDPS Act.

       In the result, we set aside the judgment of the learned Single Judge of  the High Court of Punjab & Haryana and restore the judgment of the  Additional Sessions Judge, Amritsar in Sessions Case No. 28 of 1993.  The  Sessions Judge is directed to take appropriate action to apprehend the  respondent to serve out the remaining period of sentence.  Fine, if deposited,  shall be refunded to the appellant.