{"id":235349,"date":"2005-07-25T00:00:00","date_gmt":"2005-07-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-sawaran-singh-on-25-july-2005"},"modified":"2017-09-14T23:54:24","modified_gmt":"2017-09-14T18:24:24","slug":"state-of-punjab-vs-sawaran-singh-on-25-july-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-sawaran-singh-on-25-july-2005","title":{"rendered":"State Of Punjab vs Sawaran Singh on 25 July, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Punjab vs Sawaran Singh on 25 July, 2005<\/div>\n
Author: K Balakrishnan<\/div>\n
Bench: K.G. Balakrishnan, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (crl.)  763 of 1997\n\nPETITIONER:\nState of Punjab\t\t\t\t\t\t\t\n\nRESPONDENT:\nSawaran Singh\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 25\/07\/2005\n\nBENCH:\nK.G. Balakrishnan & B.N. Srikrishna\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
K.G. BALAKRISHNAN, J.\n<\/p>\n
\tThis is an appeal preferred by the State of Punjab against the decision
\nof the Division Bench of the Punjab & Haryana High Court in Criminal Appeal
\nNo. 282-SB of 1995.  By the impugned Judgment, the learned Single Judge
\nacquitted the respondent for the offence under Section 18 of the NDPS Act,
\n1985.\n<\/p>\n
\tThe prosecution case was that on 17.5.1992, the Station House Officer
\nof Police Station, Voltoha,  accompanied by ASI Nirmal Singh and LC
\nBalwinder Singh were proceeding from Amarkot to Mehmoodpura on patrol
\nduty.  When they reached Mehmoodpura, they saw accused Swaran Singh
\ncoming from the  opposite side.    On seeing the police party, the  accused
\nsat down  by the side of the  road as if to answer the call of the nature.
\nAccused  Swaran Singh was apprehended and he was told that he was to be
\nsearched and if he so desired  the search would be conducted in the presence
\nof a Gazetted Officer or a Magistrate.  The accused did not desire to be
\nsearched in the presence of a Gazatted Officer or Magistrate.\n<\/p>\n
\tOn being searched, the accused was found carrying a plastic bag and
\non further search it was revealed that  the bag contained a packet wrapped
\nin a glazed paper.  The contents of the bag were suspected to be opium.  The
\nsubstance weighed about 5 kg.  out of which a quantity of 10 grams was
\ntaken for the purpose of sampling.  The sample as well as the remaining
\nquantity of  the recovered substance were sealed and taken into possession
\nby the Investigating Officer.  This sample was entrusted to the Police Station
\nValtoha where the formal First Information Report was registered.  The
\nproperty recovered from the accused along with the samples was kept in the
\nMalkhana.  Subsequently the sample was sent for analysis to the Forensic
\nScience Laboratory and the  Exhibit PF certificate    confirmed  the sample  to
\nbe opium.\n<\/p>\n
On the side of the prosecution, PW1 to PW 5 were examined.  Before
\nthe Sessions Court, the accused raised several pleas including the violation of
\nSection 50 of NDPS Act.  The Sessions Judge held that the  recovery of
\nopium was  fully proved and the defence version that it was a false case was
\nnot correct and that the accused had thus committed the offence punishable
\nunder Section 18 of the NDPS Act.\n<\/p>\n
\tChallenging his conviction, the respondent accused preferred an
\nappeal before the High Court.  The learned Counsel for the accused raised a
\nplea that the evidence of PW 1 ASI Harbhajan Singh and the evidence of PW
\n4 MHC Gulzar Singh and the contents of the affidavit of Constable Anup
\nSingh Exh. PB  were not put to the accused while he was examined under
\nSection 313 Cr. PC.  Therefore, these items of evidence could not have been
\nused against the accused and based on the decision of the Punjab & Haryana
\nHigh Court in Darshan Singh vs. State of Punjab 1995(3) Recent C.R. 365,
\nthe accused was acquitted of all the charges.  This is challenged before us.\n<\/p>\n
\tWe heard the learned  counsel for the appellant-State and the  learned
\ncounsel for the respondent.\n<\/p>\n
\tThe evidence of PW 1 was to the effect that on 17.5.1992, Inspector
\nSuba Singh handed over to him two sealed parcels pertaining to this case
\nbearing  the  impression ‘SS’  along with   one bag and that the property was
\nkept in Malkhana by him.  On 9.6.1992, he handed over the property to PW 4
\nMHC Gulzar Singh.  During this period, there was no tampering with the seal
\nof the packets.  PW 4 MHC Gulzar Singh deposed that he had taken charge of
\nthe property of this case on 9.6.1992 and the property consisted of two
\nparcels bearing the  seals ‘SS’ and  that the samples were sealed and he had
\nsent the same for chemical examination on 23.6.1992 through Constable
\nAnup Singh.  During this   period, the   case property remained in his
\npossession and it was not   tampered.  The accused-respondent was
\nexamined under Section 313 Cr. PC and he was put the following questions:-\n<\/p>\n
Q.\tIt is in evidence against you that on your personal search
\nby Inspector Suba Singh, a plastic bag, Exh. P.2
\ncontaining opium wrapped in a glazed paper was
\nrecovered, from which 10 gms. opium was taken out as
\nsample and made into a parcel and the remaining opium
\n4 kgs. 990 gms. was put in a separate dibba parcel, Ex.
\nP.1.  The sample and the parcel, Ex. P. 1,were separately
\nsealed with seal ‘SS’.  The case property was taken into
\npossession vide recovery memo, Ex. PC, attested by the
\nPWs.  What you have to say?\n<\/p>\n
A.\tIt is incorrect.\n<\/p>\n
He was also asked:\n<\/p>\n
Q.\tIt is in evidence against you that the sample of the opium
\nrecovered from you was sent to the Chemical Examiner,
\nwho vide his report, Ex. PF, opined that it contained
\nhaving 1% morphine.  What you have to say?\n<\/p>\n
A.\tIt is incorrect.\n<\/p>\n
He was also asked as to why this case was charged against him, why
\nthe PWs had deposed against him and to a specific question as to whether he
\nwanted to say anything else, he answered that he was innocent and he had
\nbeen falsely implicated in this case.\n<\/p>\n
\tThe only reason given by the learned Single Judge of the High Court
\nfor acquitting the accused is that the evidence of PW 1 and PW 4 was not
\nspecifically put to the accused under Section 313 Cr. PC and it was held that
\nin the absence of these facts in the form of questions to the accused, the
\nevidence could not have been used against him.  It is also pertinent to note
\nin this regard that when PW 1 and PW 4 were examined as witnesses, the
\naccused did not seriously dispute the evidence of PW 1 or PW 4. The only
\ncross examination was that it was incorrect to suggest that the case property
\nwas not deposited with him and he had deposed falsely.   So also, the
\nevidence of PW 4  was not challenged in the cross-examination except for a
\ngeneral suggestion that he had been deposing falsely and that no case
\nproperty was handed over to him by PW 1 Harbhajan Singh.    Accused had
\nno case that the seal was ever tampered with by any person and that there
\nwas any case of  mistaken identity as regards the sample and that the report
\nof the Chemical Analyst was not of the same sample taken from the accused.
\nExcept making  a general suggestion, the accused had completely admitted
\nthe evidence of PW 1 and PW 4 as regards the receipt of the sample, sealing
\nof the same and sending it to the Chemical Analyst.  This was pointed out
\nonly to show that the accused was not in any way prejudiced by the fact of
\nnot having been questioned  by making a specific reference to the evidence
\nof PW 1 and PW 4.  As regards the questioning of the accused under Section
\n313 Cr. PC, the relevant provision is as follows:-\n<\/p>\n
“313. Power to examine the accused. (1) In every inquiry
\nor trial, for the purpose of enabling the accused personally to
\nexplain any circumstances appearing in the evidence against
\nhim, the court<\/p>\n
(a)\tmay at any stage, without previously warning the accused,
\nput such question to him as the court considers necessary;\n<\/p>\n
(b)\tshall, after the witnesses for the prosecution have been
\nexamined and before he is called on the for his defence,
\nquestion him generally on the case:\n<\/p>\n
Provided that in a summons case, where the court has
\ndispensed with the personal attendance of the accused, it may
\nalso dispense with his examination under clause (b)<\/p>\n
(2) No oath shall be administered to the accused when he is
\nexamined under sub-section (1)<\/p>\n
(3) The accused shall not render himself liable to punishment by
\nrefusing to answer such questions, or by giving false answers to
\nthem.\n<\/p>\n
(4) The answers given by the accused may be taken into
\nconsideration in such inquiry or trial, and put in evidence for or
\nagainst him in any other inquiry into, or trial for, any other
\noffence which such answers may tend to show he has
\ncommitted.\n<\/p>\n
\t     The questioning of the accused is done to enable him to give an
\nopportunity to explain any circumstances which have come out in the
\nevidence against him.  It may be noticed that the entire evidence is
\nrecorded in his presence and he is given full opportunity to cross examine
\neach and every witness examined on the prosecution side.  He is given
\ncopies of all documents which are sought to be relied on  by the
\nprosecution.  Apart from all these,  as part of fair trial the accused is
\ngiven opportunity to give his explanation regarding the evidence adduced
\nby the prosecution.   However, it is not necessary that the entire
\nprosecution evidence need be put to him and answers elicited from the
\naccused.  If there were circumstances in the evidence which are adverse
\nto the accused and his explanation would help the court evaluating the
\nevidence properly, the court should bring the same  to the notice of the
\naccused to enable him  to give any explanation or answers for such
\nadverse circumstance in the evidence.  Generally. composite   questions
\nshall not be asked to accused bundling so many facts together.  Questions
\nmust be  such that any reasonable person in the position of the accused
\nmay be in a position to give rational explanation to the questions as had
\nbeen asked.  There shall not be failure of justice on account of an unfair
\ntrial.\n<\/p>\n
In State (Delhi Admn.) v. Dharampal<\/a> (2001) 10 SCC 372, it was
\nheld as under:\n<\/p>\n
“That it is to be seen that where an omission, to bring the
\nattention of the accused to an inculpatory material has occurred,
\nthat does not Ipso facto vitiate the proceedings. The accused
\nmust show that failure of justice was occasioned by such
\nomission. Further, in the event of an inculpatory material not
\nhaving been put to the accused, the appellant court can always
\nmake good that lapse by calling upon the counsel for the
\naccused to show what explanation the accused has as regards
\nthe circumstances established against the accused but not put
\nto him”.\n<\/p>\n
In Jai Dev v. State of Punjab, AIR<\/a> 1963 SC 612 it was observed
\nthus:\n<\/p>\n
“The Ultimate test in determining whether or not the accused
\nhas been fairly examined under Section 342 would be to inquire
\nwhether, having regard to all the questions put to him, he did
\nget an opportunity to say what he wanted to say in respect of
\nprosecution case against him. If it appears that the examination
\nof the accused person was defective and thereby a prejudice has
\nbeen caused to him, that would no doubt be a serious infirmity.”\n<\/p>\n
In Bakhshish Singh v. State of Punjab, AIR<\/a> 1967 SC 752, a three
\njudge bench of this Court held that:\n<\/p>\n
“. It was not all necessary that each separate piece of
\nevidence in support of a circumstance should be put to the
\naccused and he should be questioned in respect of it under that
\nsection”\n<\/p>\n
In Shivaji Sahabrao Bobade v. State of Maharashtra,<\/a> (1973) 2
\nSCC 793 a three judge bench of this Court considering the fallout of omission
\nto put to the accused a question on a vital circumstance appearing against
\nhim in the prosecution evidence, widening the sweep of the provision
\nconcerning examination of the accused after closing prosecution evidence
\nmade the following observations:\n<\/p>\n
“It is trite law, nevertheless fundamental, that the prisoner’s
\nattention should be drawn to ever inculpatory material so as to
\nenable him to explain it. This is the basic fairness of a criminal
\ntrial and failures in this area may gravely imperil the validity of
\nthe trial itself, if consequential miscarriage of justice has flowed.
\nHowever, where such an omission has occurred it does not ipso
\nfacto vitiate the proceedings and prejudice occasioned by such
\ndefect must be established by the accused. In the event of
\nevidentiary material not being put to the accused, the court
\nmust ordinarily eschew such material form consideration. It is
\nalso open to the appellate court to call upon the counsel for the
\naccused to show what explanation the accused has as regards
\nthe circumstance established against him not put to him if the
\naccused unable to offer the appellate court any plausible or
\nreasonable explanation of such circumstances, the court may
\nassume that no acceptable answer exists and that even if the
\naccused has been questioned at the proper time in the trial
\ncourt he would not have been able to furnish any good ground
\nto get out of the circumstances on which the trial court had
\nrelied for its conviction.”\n<\/p>\n
\tIn the instant case, the accused was not in any way prejudiced by not
\ngiving him an opportunity to answer specifically regarding the evidence of PW
\n1 and PW 4.  If at all, the evidence of PW 1 and PW 4 was recorded in his
\npresence, he had the opportunity to cross-examine the witnesses but he did
\nnot specifically cross-examine these two witnesses in respect of the facts
\ndeposed by them.  The learned Single Judge seriously erred in holding that
\nthe evidence of PW 1 and PW 4 could not have been used against the
\naccused.  The acquittal of the accused was improper as the evidence in this
\ncase clearly established that the accused was in possession of 5 Kg of opium
\nand thereby committed the offence under Section 18 of the NDPS Act.\n<\/p>\n
\tIn the result, we set aside the judgment of the learned Single Judge of
\nthe High Court of Punjab & Haryana and restore the judgment of the
\nAdditional Sessions Judge, Amritsar in Sessions Case No. 28 of 1993.  The
\nSessions Judge is directed to take appropriate action to apprehend the
\nrespondent to serve out the remaining period of sentence.  Fine, if deposited,
\nshall be refunded to the appellant.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Punjab vs Sawaran Singh on 25 July, 2005 Author: K Balakrishnan Bench: K.G. Balakrishnan, B.N. Srikrishna CASE NO.: Appeal (crl.) 763 of 1997 PETITIONER: State of Punjab RESPONDENT: Sawaran Singh DATE OF JUDGMENT: 25\/07\/2005 BENCH: K.G. Balakrishnan & B.N. Srikrishna JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-235349","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Punjab vs Sawaran Singh on 25 July, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-sawaran-singh-on-25-july-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Punjab vs Sawaran Singh on 25 July, 2005 - 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