REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     447           OF 2009 (Arising out of SLP (Crl.) No.4662 of 2003)

Inspector of Customs, Akhnoor J & K ...Appellant

Vs.

Yash Pal and Anr. ... Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Jammu and Kashmir High Court directing acquittal of the respondents who

were found guilty of offences punishable under Sections 8 and 21 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ‘Act’).  

3. Background facts in a nutshell are as follows:

On 1st July, 1995 at about 4.15 a.m. Army Patrolling Party, on the

other  side  of  Village,  Hamirpur  Sidhar  near  DCB  end  point,  noticed

suspicious  movement  of  some  infiltrators  who  on  being  challenged

abandoned  some  suspicious  materials  and  escaped  under  the  cover  of

darkness. On receipt of this information, Customs Staff camping at the other

side of the village rushed to the spot. Both the army authorities and Custom

staff, found some suspicious materials on spot in two salwars and a plastic

bag left abandoned in the field near DCB end point. They called two panchs

from the area and the three packages found lying abandoned in the field

were  opened  in  their  presence  from  which  56  packets  of  light  brown

powder, each weighing one kg. were recovered and seized by the Custom

staff under Section 110 of the Customs Act, 1962 (in short ‘Customs Act’).

Apart  from that,  one  pair  of  Chappal  and two pairs  of  shoes  total  three

footwear were also recovered from the spot. Recovered material appeared to

be some Narcotic Drug in  packets  and in yellow brownish paper kept  in

polythene  bags  wrapped  in  cotton  cloth  bearing  stamp marking  in  Urdu

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Khadi No.1, No.858 and 223. It was subjected to drug test by the Custom

Staff with U.N. Drug test  kit  and it  was confirmed that  the material  was

contraband Morphine Heroin or its derivative. Recovery-cum-seizure memo

of the Heroin was prepared and panchnama was drawn on spot. The samples

were taken out of the seized material and sent for chemical analysis to FSL,

Jammu who in its report revealed that Diactyl  Morphine ‘Heroin was found

present in the samples taken out of the recovered light brown powder. The

identity of infiltrators was established through the secret information report

recorded  prior  to  the  seizure.   It  was  disclosed  that  the  names  of  two

suspects were Hakikat Singh and Yashpal. Recovery of three packages and

three pairs of foot wearings were made from the spot. The recovery of three

packages and three pairs of foot wearing indicated that third person was also

accompanying the two infiltrators.

Yash Pal was summoned by Superintendent, Customs under Section

108 of the Customs Act. He appeared before him and made confessional

statement on 27.7.1995 involving himself in smuggling of Heroin and was

thereupon arrested. In his voluntary statement of confession, he disclosed

the names of two accomplices, namely, Hakikat Singh and Paramjeet Singh

and narrated the sequence of events of fetching fifty six Kg. Heroin at Indo

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Pak  border  and  its  carriage  upto  village  Hamirpur  Sidhar  and  on  its

detection  by  the  Army Patrol,  it  led  to  his  escape  from the  scene  after

abandoning the material and three pairs of foot wear. He also confessed that

he was being paid Ra.2000/- by Hakikat Singh @ Kiti and Paramjit Singh

alias Pamma for carriage of contraband articles. Similarly, on 23rd August,

1995 accused Hakikat  Singh also  came to  be intercepted by the  Custom

staff,  Jammu  and  he  made  voluntary  statement  to  the  same  effect.  He

confessed that he was being paid Rs.10,000/-  for carriage of the material.

Paramjit Singh did not appear before the Custom authorities. Evidence was

collected  and  complaint  was  presented  before  Sessions  Judge  (Special

Judge)  by  the  Inspector  of  Customs.  Accused  pleaded  not  guilty  to  the

charge  and  were  put  to  trial.   The  third  accused  was  proceeded  against

separately. The learned trial Court after appreciating the evidence led by the

parties  came to the conclusion that  accused have committed the offences

punishable under Sections 8 and 21 of the Act and recorded conviction and

sentence.  

4. The trial Court as noted above found the accused respondents guilty

and recorded the conviction and imposed sentence.  

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5. In appeal two stands were taken. First related to non-compliance of

Section 41(2)  of  the Act and the other  related to  not  putting the  alleged

incriminating  materials  to  the  accused  while  the  statement  was  recorded

under Section 342 of the old Code of Criminal Procedure (in short ‘the Old

Code’) or Section 313 of the new Code of Criminal Procedure (in short ‘the

New  Code’).  The  High  Court  found  substance  in  the  second  plea  and

directed acquittal.  

6. In support of the appeal learned counsel for the appellant submitted

that  though  minor  errors  and  omissions  in  bringing  to  the  notice  of  the

accused the incriminating materials are not vulnerable, in this case a very

specific  plea  relating  to  the  foundation  of  the  prosecution  case  and  the

evidence on which the reliance was placed was put to the accused.  That

being so, the High Court is in error by directing acquittal.

7. Stand  of  the  learned  counsel  for  the  appellant  further  that  the

approach was hyper-technical  and was not  in line with  the true intent  of

Section 342 or Section 313 of the Code.  

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8. Learned counsel for the respondents on the other hand supported the

judgment.   

9. It is to be noted that the High Court did not accept the stand relating

to non compliance of  Section 41(2)  of the Act.  It  only interfered on the

ground that the relevant incriminatory materials were not put to the accused

when they were being examined.  

10. Section 313 Cr.P.C. reads as follows:

“313.  Power to examine the accused.—(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—

(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary; (b)  shall,  after  the  witnesses  for  the  prosecution  have  been examined and before he is called on 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.

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(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.”

11. The forerunner of the said provision in the Old Code was Section 342

therein. It was worded thus:

“342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court  may,  at  any  stage  of  any  inquiry  or  trial,  without previously warning the accused, put such questions to him as the  court  considers  necessary,  and  shall,  for  the  purpose aforesaid,  question  him  generally  on  the  case  after  the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by  refusing  to  answer  such  questions,  or  by  giving  false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3)  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.

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

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12. Dealing with the position as the section remained in the original form

under  the  Old  Code,  a  three-Judge  Bench  of  this  Court  in  Hate  Singh

Bhagat Singh v. State of Madhya Bharat (AIR 1953 SC 468)  that:

“The  statements  of  the  accused  recorded  by  the Committing  Magistrate  and  the  Sessions  Judge  are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated  as  evidence  and be  duly considered  at  the trial.”

13. Parliament,  thereafter,  introduced  Section  342-A in  the  Old  Code

(which  corresponds  to  Section  315  of  the  present  Code)  by  which

permission  is  given  to  an  accused  to  offer  himself  to  be  examined as  a

witness if he so chose.

14. In  Bibhuti  Bhusan  Das  Gupta’s case  (supra) another  three-Judge

Bench dealing with the combined operation of Sections 342 and 342-A of

the Old Code made the following observations:

“Under  Section  342-A  only  the  accused  can  give evidence in person and his pleader’s evidence cannot be treated as his. The answers of the accused under Section 342 is intended to be a substitute for the evidence which

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he  can  give  as  a  witness  under  Section  342-A.  The privilege  and  the  duty  of  answering  questions  under Section 342 cannot be delegated to a pleader. No doubt the  form of  the  summons  show  that  the  pleader  may answer  the  charges  against  the  accused,  but  in  so answering  the  charges,  he  cannot  do  what  only  the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is  being  taken.  But  at  the  close  of  the  prosecution evidence the accused must be questioned and his pleader cannot be examined in his place.”

15. The  Law Commission  in  its  41st  Report  considered  the  aforesaid

decisions and also various other points of view highlighted by legal men

and then made the report after reaching the conclusion that:

(i) in summons cases where the personal  attendance of the  accused  has  been  dispensed  with,  either  under Section  205  or  under  Section  540-A,  the  court  should have a power to dispense with his examination; and (ii)  in other  cases,  even where  his  personal  attendance has  been  dispensed  with,  the  accused  should  be examined personally.  

16. The said recommendation has been followed up by Parliament and

Section 313 of the Code, as is presently worded, is the result of it. It would

appear prima facie that the court has discretion to dispense with the physical

presence of an accused during such questioning only in summons cases and

in  all  other  cases  it  is  incumbent  on  the  court  to  question  the  accused

personally  after  closing  prosecution  evidence.  Nonetheless,  the  Law

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Commission was conscious that the rule may have to be relaxed eventually,

particularly when there is improvement in literacy and legal-aid facilities in

the country. This thinking can be discerned from the following suggestion

made by the Law Commission in the same report:

“We have,  after  considering the  various  aspects  of  the matter as summarised above, come to the conclusion that Section 342 should not  be deleted.  In our opinion,  the stage has  not  yet  come for  it  being  removed from the statute-book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.”

17. The position has to be considered in the present set-up, particularly

after the lapse of more than a quarter of a century through which period

revolutionary changes in the technology of communication and transmission

have taken place, thanks to the advent of computerisation. There is marked

improvement  in  the  facilities  for  legal  aid  in  the  country  during  the

preceding twenty-five years. Hence a fresh look can be made now. We are

mindful of the fact that a two-Judge Bench in Usha K. Pillai (1993 (3) SCC

208) has  found  that  the  examination  of  an  accused  personally  can  be

dispensed with only in summons case. Their Lordships were considering a

case  where  the  offence  involved  was  Section  363  IPC.  The  two-Judge

Bench held thus: (SCC pp.212-13, para 4)

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“A warrant case is defined as one relating to an offence punishable  with  death,  imprisonment  for  life  or imprisonment for a term exceeding two years. Since an offence  under  Section  363  IPC  is  punishable  with imprisonment  for  a  term  exceeding  two  years  it  is  a warrant case and not a summons case. Therefore, even in cases  where the court  has  dispensed  with  the  personal attendance  of  the  accused  under  Section  205(1)  or Section 317 of the Code, the court cannot dispense with the  examination  of  the  accused  under  clause  (b)  of Section  313  of  the  Code  because  such  examination  is mandatory.”

18. Contextually we cannot bypass the decision of a three-Judge Bench

of this Court in Shivaji Sahabrao Bobade v.   State of Maharashtra   (1973 (2)

SCC 793) as the Bench has widened the sweep of the provision concerning

examination  of  the  accused  after  closing  prosecution  evidence.  Learned

Judges in that case were considering the fallout of omission to put to the

accused a  question  on  a vital  circumstance  appearing  against  him in  the

prosecution  evidence.  The  three-Judge  Bench  made  the  following

observations therein: (SCC p. 806, para 16)

“It  is  trite  law,  nevertheless  fundamental,  that  the prisoner’s attention should be drawn to every 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

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material  from  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 circumstances established against him but not put to him and if the accused is 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  had  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.”

19. The above approach shows that  some dilution  of  the  rigour of  the

provision  can  be  made  even  in  the  light  of  a  contention  raised  by  the

accused that non-questioning him on a vital circumstance by the trial court

has caused prejudice to him. The explanation offered by the counsel of the

accused at the appellate stage was held to be a sufficient substitute for the

answers given by the accused himself.

20. What is the object of examination of an accused under Section 313 of

the Code? The section itself declares the object in explicit language that it is

“for  the  purpose  of  enabling  the  accused  personally  to  explain  any

circumstances appearing in the evidence against him”. In Jai Dev v. State of

Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for

a  three-Judge  Bench  has  focussed  on  the  ultimate  test  in  determining

whether the provision has been fairly complied with. He observed thus:

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“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.”

21. Thus it is well settled that the provision is mainly intended to benefit

the accused and as its corollary to benefit  the court in reaching the final

conclusion.

22. At the same time it should be borne in mind that the provision is not

intended to nail him to any position, but to comply with the most salutary

principle  of  natural  justice enshrined in the maxim  audi alteram partem.

The word “may” in clause (a) of sub-section (1) in Section 313 of the Code

indicates, without any doubt, that even if the court does not put any question

under that clause the accused cannot raise any grievance for it. But if the

court fails to put the needed question under clause (b) of the sub-section it

would result in a handicap to the accused and he can legitimately claim that

no evidence, without affording him the opportunity to explain, can be used

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against  him.  It  is  now well  settled  that  a  circumstance  about  which  the

accused was not asked to explain cannot be used against him.

23. But  the  situation  to  be  considered  now  is  whether,  with  the

revolutionary change in technology of communication and transmission and

the  marked  improvement  in  facilities  for  legal  aid  in  the  country,  is  it

necessary that in all cases the accused must answer by personally remaining

present in court. We clarify that this is the requirement and would be the

general  rule.  However,  if  remaining present  involves  undue hardship and

large expense, could the court not alleviate the difficulties. If the court holds

the view that the situation in which he made such a plea is genuine, should

the court say that he has no escape but he must undergo all the tribulations

and hardships and answer such questions personally presenting himself in

court. If there are other accused in the same case, and the court has already

completed their questioning, should they too wait for long without their case

reaching finality, or without registering further progress of their trial until

their co-accused is able to attend the court personally and answer the court

questions?  Why should  a  criminal  court  be  rendered  helpless  in  such  a

situation?

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24. The one category of offences which is specifically exempted from the

rigour  of  Section  313(1)(b)  of the Code is  “summons cases”.  It  must  be

remembered that every case in which the offence triable is punishable with

imprisonment  for  a  term not  exceeding  two  years  is  a  “summons  case”.

Thus, all other offences generally belong to a different category altogether

among which are included offences punishable with varying sentences from

imprisonment for three years up to imprisonment for life and even right up

to death penalty. Hence there are several offences in that category which are

far  less  serious  in  gravity compared with  grave and very grave offences.

Even in cases involving less serious offences, can not the court  extend a

helping hand to an accused who is placed in a predicament deserving such a

help?

25. Section 243(1) of the Code enables the accused, who is involved in

the trial  of warrant  case instituted on police report,  to put  in any written

statement. When any such statement is filed the court is obliged to make it

part of the record of the case. Even if such case is not instituted on police

report the accused has the same right (vide Section 247). Even the accused

involved in offences exclusively triable by the Court  of Session can also

exercise  such a right  to  put  in  written  statements  (Section  233(2)  of  the

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Code). It is common knowledge that most of such written statements, if not

all, are prepared by the counsel of the accused. If such written statements

can be treated as statements directly emanating from the accused, hook, line

and  sinker,  why  not  the  answers  given  by  him  in  the  manner  set  out

hereinafter, in special contingencies, be afforded the same worth.

26. We think that a pragmatic and humanistic approach is warranted in

regard to such special exigencies. The word “shall” in clause (b) to Section

313(1)  of the Code is  to be interpreted as obligatory on the court  and it

should be complied with when it is for the benefit of the accused. But if it

works  to  his  great  prejudice  and  disadvantage  the  court  should,  in

appropriate cases, e.g., if the accused satisfies the court that he is unable to

reach the venue of the court, except by bearing huge expenditure or that he

is unable to travel the long journey due to physical incapacity or some such

other hardship, relieve him of such hardship and at the same time adopt a

measure to comply with the requirements in Section 313 of the Code in a

substantial manner. How could this be achieved?

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27. The above position was indicated in  Basav Raj R Patil v.  State of

Karnataka (2000 (8) SCC 740) and Keya Mukherjee v. Magma Leasing Ltd.

and Ors. (2008) 8 SCC 447.   

28. It is to be noted that in the instant case there was no reference to any

of the incriminating materials.  If the foundation of the prosecution case was

the alleged confession before the Customs Authorities, that material was not

brought to the notice of the accused persons.  

29. Above  being  the  position,  there  is  no  infirmity  in  the  impugned

judgment to warrant interference. The appeal is dismissed.  

……………………………..…..J. (Dr. ARIJIT PASAYAT)

………………..……….………..J. (D.K. JAIN)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: March 06, 2009  

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