Ajit Singh and another vs State of Punjab

S.S. Dewan, J.

Ajit Singh and Mohinder Singh petitioners, were convicted under section 61(1)(a) of the Punjab Excise Act by the Judicial Magistrate Ist Class, Rup Nagar, (Camp at Kharar) and each of them was sentenced to one. year''s rigorous imprisonment and to pay a fine of Rs. 500/ and in default of payment of fine to further undergo rigorous imprisonment for three months. On appeal, the learned Additional Sessions Judge, Rup Nagar, upheld their conviction but reduced their sentence of imprisonment to 8 months each while maintaining the sentence of fine with its default clause. They have now come up in revision.

On 24th of February, 1976, HeadConstable Daya Singh alongwith other police official and Excise Inspectors Birpal Singh and Sewa Singh was present at the Tax Barrier, Mohali, in connection with excise checking A car bearing No. PNY 683, driven by Ajit Singh accused came from the side of Chandigarh and it was stopped on suspicion. To gunny bags containing bottles of liquor were recovered from the front seat of the car. Mohinder Singh accused was sitting on the wind seat of the car and from near his seat two more gunny bags containing bottles of liquor were recovered. Four gunny bags containing bottles of liquor were recovered from the dickey of the car. In this way, the 8 gunny bags containing about 186 bottles of licit liquor were recovered. They were of Orange Colour manufactured at Yamuna Nagar Distillery. Samples were taken therefrom which on subsequent analysis was opined to be licit liquor.

The case against the accused rests on the testimony of Excise Inspector Birpal Singh, P.W. 1 and Headconstable Daya Singh, P.W. 2. The defence of accused was that they were coming from Chandigarh side on ChandigarhKharar road. The police party signalled their car at Mohali on Barrier and it was stopped at some distance ahead at the said barrier where Ajit Singh had on altercation with head HeadConstable Daya Singh and the liquor bottles were planted on them while the real culprits were let off. No witness was, however, examined in defence.

The only point pressed upon me on behalf of the petitioners is that although the evidence in respect of taking of samples from out of the bottles of liquor recovered and their being sent to the Chemical Examiner and the examination conducted by the Chemical Examiner alongwith his report was produced in the trial Court, yet the same was not put to the petitioners at the time of their examination under section 313, Criminal Procedure Code, and that they were prejudiced thereby, has in my opinion, considerable force. To repel this argument of the petitioners, the learned counsel for the State, however, contended that the petitioners knew the case against them and therefore they were not prejudiced by the absence of reference to the chemical Examiner''s report in their examination under section 313, Criminal Procedure Code. The accused might know what the case against him was but the object of section 313, Criminal Procedure Code, is to give an opportunity to the accused to answer each and every piece of evidence adduced and relied upon by the prosecution.

In Hathe Singh v. State of Madeya Bharat, A.I.R. 1953 S.C. 468, the Supreme Court observed as follows :

"We have a further comment to make. Both the Sessions Judge and the High Court have attached importance to the fact that both the accused absconded, but at no stage of the case have they been asked to explain this. We have stressed before the importance of putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it, if he can. We regret to find that this rule is so often ignored."

Again in Manchander v. Hyderabad State, A.I.R. 1955 S.C. 792, the

Supreme Court observed as follows :

"This is another of those cases in which Courts are compelled to acquit because Magistrates and Sessions Judges fail to appreciate the importance of Section 342, Criminal Procedure Code and fail to carry out the duty that is cast upon them of questioning the accused properly and fairly bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires. Had the Sessions Judge done that in this case, it is possible that we would not been obliged to acquit.

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We were asked to reopen the question and if necessary, to remand, the case. But we decline to do that. Judges and Magistrate must realise the importance of the examination under section 342, Criminal Procedure Code and this has repeatedly warned them of consequences that might ensue the certain cases. The appellant was arrested in December, 1950 and has been on trial one way and another ever since that is to say, for over 1/2 years. We are not prepared to keep person who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is no one sided. It has many facts and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape, it is even necessary to see that persons accused of crimes are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable attitude must be given to those concerned with the detention of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.

Except in clear cases of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower Courts. The scales of justice must be kept in an even balance whether for the accused or against him, whether in favour of the State or not and one broad rule must apply in all cases.

The circumstances appearing against the petitioners cannot be considered unless opportunity is given to them to explain the same in their examination recorded under section 313, Criminal Procedure Code. In the present case, the petitioners were afforded no opportunity to explain their position with regard to the report of the Chemical Examiner in respect of the contents of the bottles of liquor alleged to have been recovered from their possession.

For the above reasons I allow this revision petition, set aside the order of conviction and sentence passed against the petitioners and acquit them of the charge.