Inspector
of Customs, Akhnoor J & K V. Yash Pal & ANR. [2009] INSC 499 (6 March
2009)
Judgment
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 Yash Pal and Anr. ...
Respondents
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 2 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 3 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.
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.
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.
6 (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)."
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 8 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 9 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) 10 "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 11 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:
12
"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 13
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? 14
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 15 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? 16
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:
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