PATNA HIGH COURT
A.M. Badar and Sunil Kumar Panwar, JJ.
Md. Khalik and Ors. —Appellants
versus
Union of India through Directorate
of Revenue Intelligence and Anr. —Respondents
Criminal Appeal (DB) No.1139 of 2016 with
Criminal Appeal (DB) No.1060 of 2016 with
Criminal Appeal (DB) No.1147 of 2016
Decided on 6.5.2022

IMPORTANT POINTS
(1) Confessional statement made under Section 67 of N.D.P.S. Act before an Intelligence Officer of the D.R.I. would not be admissible in law for recording conviction against accused persons.
(2) Examination of accused – Material which is not put to accused is required to be eschewed from consideration.
(3) Accused cannot be made to suffer for laches and omission on part of Trial Court.

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 21(c), 27A and 29 – Seizure of Heroin – Conviction and sentence – Without bringing confessional statements relied by prosecution to their notice, those were used against accused persons for convicting them of serious offences – Confessional statement of accused persons could not have been taken into consideration for holding that offences alleged against accused persons are proved – Not a single incriminating circumstance appearing in evidence adduced by prosecution was put to any of accused persons – Cryptic and misguiding questions seems to be put to accused – By framing proper intelligible short and simple questions they ought to have been given opportunity to explain their stand – They were not even specifically questioned about actually possessing Heroin by them in order to enable them to give their explanation in that regard during the course of their examination under Section 313 of Cr.P.C. – Trial Court had deprived accused persons of fair trial by abdicating its duty to put each and every incriminating circumstance separately to accused for giving him fair opportunity to tender their explanation regarding the same – Accused persons, as such, could not understood case of prosecution and oral evidence adduced by prosecution witnesses so also documentary evidence in form of report of chemical analysis which was to the effect that seized substance is Heroin – Accused as such cannot be said to be in a position to give rational and intelligent explanation to circumstances appearing in evidence adduced by prosecution – Complete go-bye was given to mandatory provision of Section 313 of Cr.P.C. by trial Court – In such circumstances, nothing more is required to demonstrate failure and miscarriage of justice due to failure of duty by trial Court – Accused persons/appellants are behind bars for more than eight years – They were deprived of fair trial – Even these appeals are of year 2016 – Accused cannot be made to suffer for laches and omission on part of trial Court, by remand of case for appropriate examination of accused persons under Section 313 of Cr.P.C. – Impugned judgment of conviction and resultant order of sentence quashed and set aside – Appellants/accused acquitted of charges levelled against them. (Paras 19, 20, 21, 22, 23, 25 and 28)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 – Indian Evidence Act, 1872 – Section 25 – Confession – Confessional statement made under Section 67 of N.D.P.S. Act before an Intelligence Officer of the D.R.I. would not be admissible in law for recording conviction against accused persons – Officers, who are invested with power under Section 53 of N.D.P.S. Act are “Police Officers” within meaning of Section 25 of Evidence Act and any confessional statement made before such Officers would attract bar of Section 25 of Evidence Act and cannot be taken into consideration for recording conviction against accused. (Para 23)

(C) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Legislative provision enshrined in Section 313 of Cr.P.C. is based on principle of natural justice described in maxim ‘audi alteram partem’ (Nobody should be condemned unheard) – Principle of fair trial requires that all incriminating circumstances appearing against accused must be put to him in order to afford him an opportunity of explaining those circumstance – Trial Court is duty bound to question accused on evidences and circumstances appearing against him in order to enable accused to understand exact case which he is required to meet and whether or not to adduce any evidence in his defence – Material which is not put to accused is required to be eschewed from consideration. (Paras 15 and 17)

(D) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Whenever a plea of non-compliance of Section 313 of Code of Criminal Procedure is raised, it is within powers of appellate court to examine and further examine convict or Counsel appearing for accused and said answers shall be taken into consideration for deciding the matter – If accused is unable to offer appellate Court any reasonable explanation of such circumstance, Court may assume that accused has no acceptable explanation to offer – In facts and circumstances of case, if appellate Court comes to condition that no prejudice was caused or no failure of justice was occasioned, appellate Court can hear and decide the matter upon merits – If appellate Court is of the opinion that non-compliance with provisions of Section 313 of Code of Criminal Procedure has occasioned or is likely to have occasioned prejudice to accused, appellate Court may direct retrial from stage of recording statements of accused from the point where irregularity occurred, that is, from stage of questioning accused under Section 313 of Code of Criminal Procedure and trial Judge can be directed to examine accused afresh and defence witness and dispose of matter afresh – Appellate Court may decline to remit the matter to trial Court for retrial on account of long time already spent in trial of case and period of sentence already undergone by convict and in facts and circumstances of case may decide appeal on its own merits, keeping in view prejudice caused to accused. (Para 24)

Result: Appeals allowed. Accused acquitted.