Anbalagan vs State

M. Karpagavinayagam, J.—Anbalagan, the appellant herein was convicted for the offence u/s 8(c) r/w 2(b)(i) of the N.D.P.S.Act and

sentenced to undergo R.I. for four years and to pay a fine of Rs.20,000/- in default to undergo R.I. for one year. Challenging the same, this appeal

has been filed.

According to the prosecution, on 16.12.1997 at about ll.45 a.m., the appellant was in possession of Ganja weighing about 1.5 kgs in white

plastic gunny bag. The contraband was seized and he was arrested for the offence.

After the investigation was over, the charge sheet was filed for the offence u/s 8(c) r/w 20(b)(1) of the N.D.P.S.Act.

The charges were framed on 6.3.1998 for the said offence along with Section 31(1) of NDPS Act since he was previously convicted for the

similar offence. When the charge was explained to him on 6-3-1998, he pleaded ""not guilty"", though he admitted that he was previously convicted

for the similar offence. Therefore, the date 20.4.1998 was fixed for examination of witnesses. On 20.4.1998, he pleaded guilty and on the basis of

the said plea, he was convicted. This conviction is under challenge before this Court in this Appeal.

I heard the learned counsel for the appellant and the Additional Public Prosecutor appearing for the respondent.

On going through the judgment impugned, it is clear that the same is illegal in view of the decision rendered by this Court in KUPPUSAMY IN

RE. 1967 I LW 1 As per Section 240 Cr.P.C., when the charge is explained to the accused, the accused can either plead guilty or not guilty. If the

accused pleads guilty, he can be convicted u/s 241 of Cr.P.C. and if he does not plead guilty and claims to be tried, then the trial Court, under

Sec. 242 of Cr.P.C., shall fix a date for the examination of witnesses. Thereafter, on the date fixed, the trial Court shall proceed to take such

evidence as may be produced in support of the prosecution.

In this case, since the accused pleaded not guilty on 6.3.98, the trial Court fixed the date for examination of witnesses as 20-4-1998 as

contemplated u/s 242 Cr.P.C. It is seen from the judgment impugned that on 20.4.1998, the witnesses did not turn up even though summons were

served on them. It is also noticed that the counsel for the accused also was not present. At that juncture, the accused pleaded guilty and the same

was acted upon by the trial Court to convict the accused for the offences referred to above.

This procedure is clearly wrong, in view of the above judgment reported in 1967 LW (Crl.) 1. The trial Court ought to have posted the matter

on some other date to enable the prosecution to produce the witnesses and after examination of those witnesses, the accused must be questioned

u/s 313 Cr.P.C. with reference to the plea of guilty. Therefore, the trial Court has committed a grave illegality in entertaining the plea of guilty,

especially when the trial Court has proceeded to the stage of commencement of trial u/s 242 Cr.P.C. Consequently, the conviction is liable to be

set aside.

It is noticed from the decision cited above that when such an illegality is found, the case can be remanded for re-trial. In this case, though this

Court could remand the matter for trial, it is felt that the remand is unnecessary, in view of the long lapse of time and also on the fact that report u/s

57 is not available in the case records and as such, this may affect the search and seizure of the records during trial.

Under those circumstances, I am of the view that it is not worthwhile to remand the matter for re-trial. Therefore, this appeal is allowed.

Consequently, the conviction and sentence is set aside. Fine amount, if paid, shall be refunded to the appellant.