Important point
Evidence of witness which accused had not seriously disputed during trial except a suggestion of denial, if was not put to accused in his examination u/s 313 Cr.P.C., was not liable to be ignored from consideration.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 18—Recovery of 5 kg. of opium from possession of accused and Sessions Court convicted accused—High Court set aside the conviction holding that evidence of PW1 with whom two sealed parcels of this case were deposited and of PW4 to whom property was handed over and who in turn got it deposited with Chemical Analyst was not put to accused in his examination under Section 313 Cr.P.C.—Appeal—Accused had not seriously disputed evidence of those witnesses except a suggestion that they were giving false evidence—Accused was not prejudiced by not giving him an opportunity to answer that evidence—High Court seriously erred in holding that evidence of those witnesses could not be used against accused—Conviction was liable to be restored.
(ii) Criminal Procedure Code, 1973 —Section 313—Questioning of accused is done to enable him to explain circumstances which had come in evidence against him—It was not necessary that entire prosecution evidence need be put to him and answer elicited from accused.
Held : 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. (Para 10)

Judgment

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.

2. 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 Gazetted Officer or Magistrate.

3. 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.

4. On the side of the prosecution, PW1 to PW5 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.

5. 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 PW1 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.P.C. Therefore, these items of evidence could not have been used against the accused and based on the decision of the Punjab & Haryana 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.

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

7. The evidence of PW1 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.P.C. 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 wrappe

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2005 Supreme(SC) 932

Important pointEvidence of witness which accused had not seriously disputed during trial except a suggestion of denial, if was not put to ­accused in his examination u/s 313 Cr.P.C., was not liable to be ignored from consi­deration.

Cases Referred (4)

Important point
Evidence of witness which accused had not seriously disputed during trial except a suggestion of denial, if was not put to accused in his examination u/s 313 Cr.P.C., was not liable to be ignored from consideration.