Mahan Singh vs The State of Punjab

Gurnam Singh, J.—Mahan Singh son of Mal Singh, resident of village Burj Hari Singh, police station Raikot, district Ludhiana, was convicted u/s 9 of the Opium Act by the learned Judicial Magistrate 1st Class, Jagraon, by his judgment dated February 16, 1970, for having been found in possession of 20 kgs. of poppy husk in the area of village Nurpura, and sentenced to suffer rigorous imprisonment for six months. He was also convicted and sentenced to suffer rigorous imprisonment for one year in the second case u/s 9 of the Opium Act by the same Magistrate, by his judgment of the same date The appeals filed by Mahan Singh, in both the cases, against his convictions, were heard by Shri O. P. Saini, Additional Sessions Judge, Ludhiana, and dismissed on 25th August, 1970. Being aggrieved with the judgments of the learned Additional Sessions Judge, Ludhiana, Mahan Singh has filed Criminal Revision Applications Nos. 732 and 731 of 1970 in this Court. Since the facts of both the cases are similar and recoveries were effected in the same transaction and the witnesses are the same, they will be disposed of by this single judgment.

The prosecution story, briefly stated, is that on 27th June. 1969. Sub-Inspector Baldev Singh of police station Raikot accompanied by Shri Narain Dass, Excise Inspector, and Assistant Sub-Inspector Sadhu Singh of police post Sudhar, left Raikot at about 3.45 A.M. for conducting excise raids and when they were near village Nurpura, they saw Mahan Singh, the petitioner, coming carrying a bag on his head. He was apprehended by the police party and the bag was found to contain 20 kgs. of poppy husk. He was also having a scale and two weights. A sample was taken out of the bag and then both the sample and the remaining poppy husk in the bag were sealed. Ruqa was sent to the police station for the registration of the case on the basis of which first information report No. 93 was recorded.

On further interrogation, Mahan Singh disclosed that he had kept concealed two bags of poppy husk under the wheat chaff at his well in a hutment and could get the same recovered. His disclosure statement was recorded which was thumb marked by him and attested by the aforesaid witnesses. The police party then went to the village from where Har Sikandar Singh, Sarpanch, and Partap Singh, chaukidar, were joined. Mahan Singh then led the party to his well from where he got recovered two bags of poppy husk, each containing 40 kgs. Samples were taken from the two bags and the same as well as the bags were sealed. Ruqa was sent to the police station for the registration of the case, on the basis of which first information report No. 94 was recorded.

On receipt of the reports of the Chemical Examiner, in both the cases, that the samples were of poppy husk, two separate chalans in respect of both the recoveries, were submitted against Mahan Singh in the Court.

Sub-Inspector Baldev Singh, Assistant Sub-Inspector Sadha Singh and Excise Inspector Narain Dass were examined as prosecution witnesses in both the cases and they corroborated the prosecution stories in all details.

The petitioner, in his statements, recorded u/s 342, Criminal Procedure Code, in both the cases, denied the allegations made against him and stated that on the day of occurrence he was present in the Panchayat, which had been convened in front of the house of one Gareebu in connection with a dispute between Gareebu and Bachan Singh, that a police constable came there and took him to his house, where the police was already having 2� bags of poppy husk with them and that the same were planted on him. In both the cases, he examined Budh Singh and Har Sikandar Singh in his defence and they both corroborated the statements made by him while Narain Singh and Partap Singh were simply tendered for cross-examination.

Shri Ajmer Singh, Advocate, who argued both the cases for the petitioner vehemently urged that although evidence in respect of the taking of the samples from out of the poppy husk recovered and their being sent to the Chemical Examiner and the examination conducted by the Chemical Examiner along with his reports, was produced in the trial Court, in both the cases, yet the same was not put to Mahan Singh at the time of his examination recorded u/s 342, Criminal Procedure Code, and, therefore, the same could not be used against him for holding that he was found in possession of poppy husk.

The examination of Mahan Singh, u/s 342, Criminal Procedure Code, in both the cases reveals that he was only asked about the raid and the recoveries of the poppy husk which he denied and gave his own plea. Section 342(1) Criminal Procedure Code, reads as under:

For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and stall, for the purpose aforesaid, question him generally on the case after the witnesses for (he prosecution have been examined and before be is called on for his defence.

The section is based on the principal involved in the maxim auatalteran, namely, that no person should be condemned unheard and the accused should be heard, not merely on what is prima facie proved against him but on every circumstance appearing in evidence against him. The purport of the evidence, with regard to the taking of the samples from out of the recovered poppy husk and sending them to the Chemical Examiner and his reports, was not put to the petitioner in his examination u/s 34 2, Criminal Procedure Code, in both the cases. The possession of the contents of the bags, which were recovered from the petitioner, could only be an offence, if it was proved that the same were poppy husk. No doubt the samples were taken from out of the recovered poppy husk and sent to the Chemical Examiner in sealed parcels and he was of the opinion that the contents of the samples were poppy husk, but that incriminating evidence was not put to Mahan Singh while he was examined u/s 342, Criminal Procedure Code. It shows that Mahan Singh had been examined in a perfunctory manner. Their Lordships held as under in Machander Vs. State of Hyderabad,

Judges and Magistrates must realise the importance of the examination u/s 342. It is their duty to question 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.

In holding Mahan Singh guilty for having been found in possession of poppy husk, without giving him any chance for explanation, cannot be held to be a curable irregularity and the error is patent on the record which causes prejudice to the petitioner. In this view I am supported by the observations made by his Lordship in Devi Ram v. State 1970 Cri. J 536, which read as under:

The object of Section 342 is to give opportunity to the accused to answer each and every piece of evidence adduced and relied upon by the prosecution. Therefore, it cannot be said that the accused is not prejudiced by the absence of a detailed reference to the prosecution evidence in the examination u/s 342, only because he knew the case against him. Thus, putting a question to the accused in examination u/s 342, as to whether he heard and understood the statements of the prosecution witnesses who had appeared against him and his answer in affirmative thereto, does not satisfy the requirement of Section 342.

There is always a presumption of innocence in favour of the culprit. So the version given by him, if reasonable, and accords with probabilities, is to be accepted, unless the prosecution can prove beyond reasonable doubt that it is false. It is the duty of the Magistrate to question the accused properly and fairly, bringing home to his mind in clear and simple manner the exact case he has to meet. All material points appearing in evidence that are sought to be made against him should be explained to him for affording him a chance to explain them, if he can and so desires. In the instant case, Mahan Singh was afforded no opportunity to explain his position with regard to the report of the Chemical Examiner in respect of the contents of the bags alleged to have been recovered from his possession. The circumstances appearing against the petitioner should not be considered unless opportunity is given to him to explain the same in his examination recorded u/s 342, Criminal Procedure Code. The finding of the Courts below is that the recovery effected from the petitioner was of poppy husk and that is based on the reports of the Chemical Examiner the reports of the Chemical Examiner were not put to the petitioner in his examination recorded u/s 342, Criminal Procedure Code and, therefore, it is proved that the petitioner has been prejudiced in this finding of the Courts below.

The two cases started on 27th June, 1969 and the petitioner was sentenced by the trial Magistrate on 16th February, 1970. His appeals were dismissed by the learned Additional Sessions Judge on 25th August, 1970 and against those orders he filed these two revision applications. This shows that since 27th June, 1969, the burden of prosecution is hanging on the petitioner. He has been in worry and suspense for all the time. He also has remained in jail for about 20 days. So taking all these facts into consideration, I do not find these cases fit for remand. Thus both the revisions are accepted and Mahan Singh, petitioner, is acquitted in both the cases. He is on bail and his bail-bonds are discharged.