REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.                OF 2009 (Arising out of (SLP (Crl.) No. 1508 of 2006)

State of Punjab    ….Appellant

Versus

Hari Singh & Ors.   …. Respondents                

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The State of Punjab is in appeal against  the judgment of a learned

Single Judge of the High Court of Punjab and Haryana, allowing the appeal

filed by the present respondents, who were accused nos.1 to 4.  They faced

trial  for  offence  punishable  under  Section  15  of  the  Narcotic  Drugs  and

Psychotropic Substances Act, 1985 (in short the ‘Act’).  Each was sentenced

to  undergo  rigorous  imprisonment  for  ten  years  and  to  pay  a  fine  of

Rs.1,00,000/-  each  with  default  stipulations.  They were convicted  by the

learned Special Judge, Patiala, for having been found to be in possession of

16 bags of poppy husk, each containing 30 kgs.       

3. According to the prosecution case, on 9.7.1999, SI Krishan Kumar

along with other police officials and one PW Gurjail Singh was going from

village  Kadrabad to  Gajewas and when they were three kilometers  away

from the village, they noticed three men and two women sitting on the bags

lying  between  the  surgarcane  fields  and  a  heap  of  earth.  On seeing  the

police party, these persons tried to slip away.  Sub Inspector Krishan Kumar

stopped  the  vehicle  and  apprehended  accused  Puran  Singh,  Hari  Singh,

Jaswinder Kaur and Charanjit Kaur while 5th accused (who was identified as

Amrik  Singh  by Gurjail  Singh)  slipped  away.  The  Sub-Inspector  sent  a

wireless  message to the police station and called S.P.Os Rajwinder Kaur

and  Surinder  Kaur  to  the  spot  and  in  their  presence  apprised  the

apprehended persons that the police want to search the bags on which they

had  been  sitting  and  they  could  ask  for  search  being  conducted  in  the

presence  of  a  Gazetted  Officer  or  Magistrate.   In  response  to  this,  the

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persons opted for being searched by a Gazetted Officer.  Their statements

were  recorded and through wireless,  S.I.  Krishan Kumar requested  DSP,

Samana Shri Paramvir Gill to reach at the spot and in his presence the bags

were taken and grounds of arrest served upon the appellants and eventually

after receipt of adverse report from the Chemical Examiner a challan was

presented against them.

4. After considering the materials and evidence on record, the trial Court

came to the conclusion that prima facie a case under Section 15 of the Act

was  made  out  against  the  accused  and  as  they  pleaded  not  guilty,  the

prosecution  was called  upon to  lead  its  evidence.  It  examined SI Manjit

Singh (PW-1), HC Rakesh Kumar (PW-2), DSP P.S. Gill (PW-3), Inspector

Krishan  Kumar  (PW-4),  Gurtej  Singh  (PW-5)  and  SI  Gurcharan  Singh

(PW6).         

5. After  conclusion  of  the  evidence,  the  incriminating  circumstances

appearing in the prosecution case were put to the accused, who denied the

allegations  and  asserted  that  they  were  innocent  and  have  been  falsely

implicated in the case by the police due to enmity.  Puran Singh asserted

that  Inspector  Paramjit  Singh  who  was  posted  as  SHO,  Police  Station,

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Dirba,  District  Sangrur  and ASI Jarnail  Singh  are  inimical  towards  him.

The police officials had picked up his sons Amrik Singh, Baghel Singh and

his nephew Paramjit Singh on 16.4.1987.  Aggrieved by this, Puran Singh

had filed a writ petition of habeas corpus and when this petition came up for

hearing.   Mr.  M.L.  Bharara,  Superintendent  of  High  Court,  who  was

appointed as Warrant Officer had also been brought into Police Station by

ASI Jarnail  Singh and when the Warrant  Officer inquired about him, the

Police Officials replied that he had given him a thousand rupee as bribe for

making a false report.  Action under the Contempt of Courts Act had been

initiated against two officials and Inspector Paramjit Singh had been fined

with  Rs.1000/-  and  in  default  of  payment  of  fine  he  was  sentenced  to

undergo SI for a period of two months. Again, Gurusewak Singh, who was

DSP Railways had picked up his son and brother-in-law. His brother-in-law

was killed and in that case his son had appeared as a witness against the

police  officials  and writ  petition  had also  been filed against  them in  the

Punjab and Haryana High Court. Due to this, Police Department is inimical

towards him and his family and had falsely implicated them in the case. The

accused had brought  on record certified copy of the judgment  passed by

Shri  G.S. Dhiman, Additional  Sessions  Judge,  Sangrur on 24.5.2003 and

photocopy of the Criminal Contempt Petition No.13 of 1987 marked D2 and

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closed the evidence.

6. The Trial Court  came to hold that the accusations were established

beyond  reasonable  doubt  and,  accordingly,  convicted  and  sentenced  the

accused.

7. Stand of the accused persons before the High Court was that there

was no evidence to show any conscious possession, which is a sine-qua-non

for recording conviction under Section 15 of the Act. Additionally, it was

submitted that no question regarding possession was put to any of them in

their  examination under Section 313 of  the Code of  Criminal  Procedure,

1973 (in short, ‘the Code’). It was also urged that the prosecution was the

outcome of personal vandata by some officials.  The High Court accepted

the stand of the appellants and directed acquittal holding that there was no

evidence of conscious possession and in any event, the requisite questions

under Section 313 Cr.P.C. were not put.

8. In support of the appeal, learned counsel for the appellant submitted

that the High Court was wrong in its view both with regard to the conscious

possession aspect as well as the questioning under Section 313 Cr.P.C.

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9. Learned counsel  for  the respondents,  on  the  other  hand,  submitted

that whether there was conscious possession is a question of fact and the

High Court’s judgment does not call for any interference.

10. Whether there was conscious possession had to be determined with

reference to the factual backdrop in each case.  The fact which can be culled

out from the evidence on record is that the accused persons were sitting atop

gunny bags containing the contraband articles.

11. Section  15  makes  possession  of  contraband  articles  an  offence.

Section 15 appears in chapter IV of the Act which relates to offence for

possession  of  such  articles.  It  is  submitted  that  in  order  to  make  the

possession illicit, there must be a conscious possession.  Section 15 deals

with punishment for contravention in relation to poppy straw.

12. It is highlighted that unless the possession was coupled with requisite

mental  element,  i.e.  conscious  possession  and  not  mere  custody  without

awareness of the nature of such possession, Section 15 is not attracted.

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13. The expression ‘possession’ is a polymorphous term which assumes

different colours in different contexts.  It may carry different meanings in

contextually  different  backgrounds.  It  is  impossible,  as  was  observed  in

Superintendent  & Remembrancer  of  Legal  Affairs,  West  Bengal v.  Anil

Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical

and  precise  definition  of  “possession”  uniformally  applicable  to  all

situations in the context of all statutes.

14. The word ‘conscious’ means awareness about a particular fact.  It is a

state of mind which is deliberate or intended.

15. As noted in  Gunwantlal  v.  The State of M.P. (AIR 1972 SC 1756)

possession  in  a  given  case  need  not  be  physical  possession  but  can  be

constructive,  having power and control over the article in case in question,

while the persons whom physical possession is given holds it subject to that

power or control.     

16. The  word  ‘possession’  means  the  legal  right  to  possession  (See

Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was

observed that where a person keeps his fire arm in his mother’s flat which is

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safer than his own home, he must be considered to be in possession of the

same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).

17. Once possession is established the person who claims that it was not a

conscious  possession  has  to  establish  it,  because  how he  came to  be  in

possession is within his special knowledge.  Section 35 of the Act gives a

statutory recognition of this  position because of presumption available in

law.  Similar is the position in terms of Section 54 where also presumption

is available to be drawn from possession of illicit articles.  This position was

highlighted in Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6)

SCALE 483).

18. In the present case, though, there was evidence regarding conscious

possession, but, unfortunately, no question relating to possession, much less

conscious possession was put to the accused under Section 313 Cr.P.C. The

questioning under Section 313 Cr.P.C. is not an empty formality.

19. A few decisions of this Court need to be noticed in this context.

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20. In Bibhuti Bhusan Das Gupta & Anr. v.  State of West Bengal (AIR

1969 SC 381), this Court held that the pleader cannot represent the accused

for the purpose of Section 342 of the Code of Criminal  Procedure, 1898

(hereinafter  referred  to  as  ‘Old  Code’)   which  is  presently  Section  313

Cr.P.C.

21. 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.

(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.”

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22. 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).”

23. 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

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received  in  evidence  and  treated  as  evidence  and  be  duly considered at the trial.”

24. 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.

25. 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  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.”

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26. 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.  

27. 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

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

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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.”

28. 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)

“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.”

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29. 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 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.”

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30. 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.

31. 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:

“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.”

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32. 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.

33. 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

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

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

34. 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

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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?

35. 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

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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?

36. 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

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.

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37. 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?

38. If the accused (who is already exempted from personally appearing in

the court) makes an application to the court praying that he may be allowed

to answer the questions without making his physical presence in court on

account of justifying exigency the court can pass appropriate orders thereon,

provided such application is accompanied by an affidavit sworn to by the

accused himself containing the following matters:

(a)  A  narration  of  facts  to  satisfy  the  court  of  his  real difficulties  to  be  physically  present  in  court  for  giving  such answers.

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(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that  he would not  raise any grievance on that score at any stage of the case.

39. If the court is satisfied of the genuineness of the statements made by

the accused in the said application and affidavit it is open to the court to

supply the questionnaire to his advocate (containing the questions which the

court  might  put  to him under Section 313 of the Code) and fix the time

within which the  same has to be returned duly answered by the accused

together  with  a  properly  authenticated  affidavit  that  those  answers  were

given by the accused himself. He should affix his signature on all the sheets

of the answered questionnaire. However, if he does not  wish to give any

answer  to  any  of  the  questions  he  is  free  to  indicate  that  fact  at  the

appropriate place in the questionnaire (as a matter of precaution the court

may  keep  photocopy  or  carbon  copy  of  the  questionnaire  before  it  is

supplied to the accused for an answer).  If the accused fails  to return the

questionnaire duly answered as aforesaid within the time or extended time

granted by the court, he shall forfeit his right to seek personal exemption

from court during such questioning. The Court has also to ensure that the

imaginative  response  of  the  counsel  is  intended  to  be  availed  to  be  a

substitute for taking statement of accused.  

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40. In our opinion, if the above course is adopted in exceptional exigency

it would not violate the legislative intent envisaged in Section 313 of the

Code.

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

Karnataka (2000 (8) SCC 740).  

42. It is true that in  Chandu Lal Chandraker’s case (supra) two Hon’ble

Judges have taken a view supporting that of the appellant.  It appears that in

said  case  no  reference  was  made  to  Bibhuti  Bhusan  Das  Gupta’s case

(supra).

43. Judged in the background of principles set out in Basav Raj R. Patil’s

case (supra)  the inevitable conclusion is  that the High Court’s  impugned

order does not suffer from any infirmity to warrant interference.

44. When  the  accused  was  examined  under  Section  313  Cr.P.C.,  the

essence of accusation was not brought to his notice, more particularly, that

possession aspect, as was observed by this Court in Avtar Singha and Ors.

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v. State of Punjab (2002 (7) SCC 419). The effect of such omission vitally

affects the prosecution case.         

45. Above being the position, we find no merit in this appeal which is,

accordingly,  dismissed.   However,  certain  directions  given  by  the  High

Court  for  initiation  of  action  against  some officials  could not  have  been

given while dealing with an appeal  and,  therefore,  stand expunged.   The

appeal is dismissed except for a direction for expulsion of the direction for

initiation of departmental action.        

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

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

New Delhi, February 16, 2009

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