The right to legal representation is fundamental in criminal trials; decisions made without counsel for the accused violate Article 21 of the Constitution.

JUDGMENT :

Rakesh Kainthla, J.

The present revision petition is directed against the judgment dated 14.03.2013 passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. (learned Appellate Court) vide which judgment of conviction dated 31.12.2017 and order of sentence dated 17.01.2008, passed by learned Chief Judicial Magistrate, Sirmaur at Nahan (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the complainant Drug Inspector filed a complaint against the accused for the commission of an offence punishable under 18(c) and 18-A of the Drugs and Cosmetics Act, 1940 ( hereinafter called the Act) for possessing thirteen intact and six broken bottles of Corex syrup. The learned Trial Court held that the possession of the bottles was proved but it was not proved that possession was for sale. Hence, no case for the commission of an offence punishable under Section 18(c) of the Act was made out, however, the accused failed to disclose the name of the person from whom the bottles were purchased. Hence, the accused were convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1000/- each (total Rs.2000/-) and in default of payment of the fine to undergo further simple imprisonment for one month.

3. Being aggrieved from the judgment and order passed by learned Trial Court, the present petitioner and co-accused filed an appeal, which was decided by learned Appellate Court, who held that only the present petitioner Pawan Kumar was apprehended on the spot. The identity of the co-accused was not established, therefore, the appeal was partly allowed. The conviction and sentence of the present petitioner were upheld and accused Sachin Kumar was acquitted of the charges framed against him.

4. Being aggrieved from the judgment passed by the learned Appellate Court, the petitioner has approached this Court asserting that the learned Appellate Court erred in deciding the appeal in the absence of accused without appointing a counsel to represent him. The judgment is bad on this ground alone. Hence, it was prayed that the present revision be allowed and the judgment passed by the learned Appellate Court be set aside.

5. I have heard Ms Seema K.Guleria, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State.

6. Ms Seema K. Guleira, learned counsel for the petitioner submitted that the learned Appellate Court erred in convicting and sentencing accused-Pawan Kumar. The learned Trial Court had acquitted the accused of the commission of an offence punishable under Section 18(c) and convicted him for the commission of an offence punishable under Section 18A of the Act. These findings are contradictory because if the petitioner did not have any drugs, he was not bound to disclose the name of the person from whom bottles were purchased. Learned Appellate Court erred in deciding the appeal without hearing the learned counsel for the accused, therefore, she prayed that the present appeal be allowed and the judgment of the learned Appellate Court be set aside.

7. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State submitted that the learned Trial Court had categorically held that possession of the petitioner was proved. He was acquitted because the possession for sale was not proved, therefore, there is no error in the judgments of the learned Courts below. The present petitioner was bound to disclose the name of the person from whom he had purchased the drugs. He had failed to do so and he was rightly convicted by the learned Trial Court. Learned Trial Court had not dismissed the appeal in default but had decided the appeal on merits after going through the record. Learned Appellate Court was not bound to adjourn the hearing