Balwant Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioneraccused has assailed the judgment passed by Mr. J.S. Korey, Additional Sessions Judge, Ludhiana, allowing appeal No. 34 of 1993 but at the same time remanding the case to the Trial Court to record the statement of the accusedpetitioner under Section 313 of the Code of Criminal Procedure (in short, the Code) afresh.

Brief facts of the case are that on October 11, 1984, accused was nabbed for keeping in his possession 2 Kgs and 250 gms of opium. Challan was filed on October 11, 1985. Trial Court delivered its judgment on September 11, 1993, holding him guilty under Section 9(1) of the Opium Act and sentenced him to undergo rigorous imprisonment for one year with a fine of Rs. 1,000/ in default to further undergo rigorous imprisonment for three months. The accusedpetitioner filed the aforesaid appeal in the court of the Additional Sessions Judge, Ludhiana.

During the course of arguments, the petitioner''s learned counsel contended that the link evidence adduced in the form of affidavits Exhibits PF and PG of HC Dilawar Singh and HC Gurmail Singh respectively was not put to the accused when he was examined under section 313 of the Code. Hence this link evidence cannot be taken into consideration against the accused petitioner for holding him guilty of the said offence. In view of this fact even the report of the Chemical Examiner cannot be used against the accused and thus he is entitled to acquittal.

The learned Additional Sessions Judge found that this link evidence, which was adduced in the form of affidavits, was not put to the accused when he was examined under section 313 of the Code. Relying on Sham Lal v. State of Haryana, 1993(2) CLR 242 the learned Additional Sessions Judge allowed the appeal, set aside the conviction and sentence recorded by the trial Magistrate and remanded the case to the Judicial Magistrate Ist Class, Ludhiana, for a fresh decision after properly examining the accused under section 313 of the Code and allowing him to adduce the evidence in defence.

The petitioner''s learned counsel contended that after 13 years the petitioner is again directed to appear before the trial Magistrate for his examination under section 313 of the Code and for a decision afresh. Learned counsel scathingly remarked that the learned Additional Sessions Judge has not properly followed the judgment in Sham Lal''s case (supra). Relying on Machhander v. The State of Hyderabad, AIR 1955 SC 792; Ajit Singh v. State of Punjab, 1992(1) CLR 638; Makhan Singh v. State of Punjab, 1992(2) RCR 109 and Darshan Singh v. State of Punjab, 1997(1) CLR 129 learned counsel contended that since this link evidence was not put to the accused under section 313 of the Code, the report of the Chemical Examiner could not have been used against the accused for holding him guilty of the said offence. The learned Additional Sessions Judge failed to consider this aspect of the case that the petitioner is facing the trauma of this criminal case since October 1984. Thirteen years have elapsed. Despite this fact he remanded the case and played with the liberty of the accusedpetitioner. Thus, according to him, the impugned order is liable to be set aside and the accusedpetitioner be acquitted of the said offence.

The learned Deputy AdvocateGeneral, Punjab, supported the impugned order and contended that the accused is rightly held guilty of the offence under section 9(1) of the Opium Act as he was found in possession of 2 Kgs and 250 grams of opium. While examining the accused under section 313 of the Code, the learned Magistrate failed to put questions to him with regard to the link evidence which was adduced by the prosecution. This defect has come in the trial because of the mistake of the learned Magistrate. The prosecution is not to be blamed for it. Therefore, the learned Additional Sessions Judge has rightly remanded the case, so that the accused may be examined under section 313 of the Code with regard to the said link evidence and then after giving him an opportunity to adduce evidence in defence, the case may be decided afresh. Considering the above facts of the case, for this technical defect alone, the accused should not be given benefit of acquittal.

In this case admittedly the accusedpetitioner is facing this criminal trial since 1984.

In Machhander''s case (supra) the facts were that the fact of confession was not put to the accused while he was examined under section 342 Cr.P.C. (old). The High Court excluded the evidence of confession from consideration. On these facts the Apex Court observed :

"We were asked to reopen to question and, if necessary, to remand the case. But we decline to do that. Judges and magistrates must realise the importance of the examination under Section 342, Criminal P.C. and this Court has repeatedly warned them of the consequences that might ensue in certain cases. The appellant was arrested in December 1950 and has been on his trial one way and another ever since, that is to say, for over 41/2 years.

We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not onesided. It has many facets 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 more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections 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 ss 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 repairs gaps in his defence which he could and ought to have made good in the lower courts. The scales of justice must be kept on 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.

(21) The error here is not a mere technicality. The appellant appears to have been ready to disclose all on the 29th and make a clean breast of everything and yet the police waited six days before getting a confession judicially recorded. That may be capable of explanation but the difficulty of asking an accused person to establish facts of this kind in his favour four and a half years later is obvious. Without therefore attempting to lay down any general rule, we are not prepared to order a retrial in this case because of the facts that appear here."

In this case, as the petitioner''s counsel has rightly argued, the link evidence produced in the form of affidavits Exhibits PF and PG of HC Dilawar Singh and HC Gurmail Singh respectively was not put to the accused when he was examined under section 313 of the Code. Without adducing this evidence and without proving the fact that after the seizure till the sample of the contraband opium reached the hands of the Chemical Examiner, the sample remained in safe custody of the Police Malkhana duly sealed and no body tampered with the seals, the report of the Chemical Examiner cannot be considered against the accused because the prosecution has to prove the above facts first before it can use the expert''s opinion against the accused. Hence in this case it cannot be said that the nonexamination of the accused with regard to this link evidence is a mere technicality. It goes to the root of the case. Unless this link evidence is put to the accused under section 313 of the Code, it cannot be used by the prosecution and resultantly even the report of the Chemical Examiner cannot be used by the prosecution to prove the guilt of the accused. On that premise, it becomes obvious that the accused is entitled to acquittal.

The petitioner''s learned counsel''s reliance on Ajit Singh''s Makhan Singh''s and Darshan Singh''s case (supra) is apposite.

Further, it is also obvious that the accused is facing the trauma of this criminal trial since 1984. After 13 years if he is made to appear before the Criminal Court for a retrial, it will impinge his right of personal liberty. The petitioner cannot be put on trial for decades.

Consequently, this revision is allowed, the impugned judgment of the Additional Sessions Judge, Ludhiana, is set aside and the accused is acquitted of the said charge.

Revision allowed.