Rameshwar vs State of Madhya Pradesh

The present appeal is arising out of the judgment dated 24.01.1997 passed in Session Trial No.141/96 by the First Additional Sessions Judge,

Ratlam. The appellant has been convicted for the offence under Section 8/18 of the NDPS Act and has been sentenced to undergo 19 years RI

with a fine of Rs.1,00,000/- and in default of payment of fine, further 3 months'' RI has been inflicted upon the appellant.

Facts of the case reveal that on 10.04.1996, Station House Officer namely Shri K.K. Upadhyaya received an information from the informant

that one Rameshwar has kept opium in the first floor of his house situated in village- Bodina, Distt.-Ratlam and on the basis of the aforesaid

information received from informant, the Station House Officer prepared a Panchnama (Ex.P-1) in presence of Panch witnesses namely Niranjan

S/o Bherulal and Lalu S/o Kodar.

As per prosecution case, a copy of the information was forwarded to the Sub Divisional Officer (Police), Sailana thereafter, the Station House

Officer, Shri K.K. Upadhyaya along with Sub-Inspector, Rohila; Head Constable -Jailal (No.88), Constable-Mewaram (No.300), Constable-

Hemant Singh (139) and Constable-Mukut Singh, No.410 in a private vehicle bearing registration No.MP-14B-9339 went to Sialana Police

Station and then along with Station House Officer -Mahendra Singh and Shivgarh as well as other police force reached village-Bodina.

The police party after reaching the house of the accused-Rameshwar called Rameshwar in front of Panch witnesses ''Bagdiram S/o Bherawi and

the accused- appellant ''Rameshwar'' by a notice (Ex.P-2) was informed that police is having information about the presence of opium in his house

and an option was given to Rameshwar whether he wants his house to be searched by a gazetted officer or by the Station House Officer present.

The accused-appellant gave his consent for search vide Panchnama Ex.P-4 to the Station House Officer, Namli and (Panchnama) was prepared

and thereafter, the police force entered the house of Rameshwar and Panchnama was prepared.

During search, two plastic bags were found and a Panchnama was prepared vide Ex.P-5 and the plastic bags were containing opium and

Panchnama Ex.P-6 was prepared. Constable- Hemant (139) brought a weighing scale with weights from the house of Nandlal Rathore and the

opium was weighed. The weight of the opium with plastic bags was 8 Kgs. and 850 grams and without the weight of the bags, in one bag, the

weight of opium was 4 Kg. and 850 grams and in another bag, the weight was 3 kg. and 850 gram. The total weight was 8 kg. and 700 grams.

Two samples of 50 gram each were prepared and they were preserved and sent for forensic examination. The opium seized and Japti

Panchnama was prepared Ex.P-9. A criminal case was registered against the present appellant as well as his father. An FIR was lodged for

offence under Section 8/18 of the NDPS Act, Ex.P-24.

A spot map was prepared vide Ex.P-25 in respect of the house from where the opium was recovered and the Gram Panchayat-Bodina issued

certificate Ex.P-12 that the house in question is in the name of Bherulal S/o Nanuram and Rameshwar S/o Bherulal and the other members of the

family of Rameshwar, Bherulal and Chairam are residing in it.

A sample of seized contraband prepared as Ex.P-27 (memo) was sent to Forensic Science Laboratory, Indore through constable No.662

(Durgaprasad) and the Forensic Science Laboratory submitted a report along with the letter Ex.P-18 and the report is Ex. P-17. As per the FSL

report, the seizure was in respect of opium and FSL has confirmed that it was opium only.

Thereafter, a charge-sheet was filed in the matter and a trial took place in the matter. The accused-appellant has denied the charges and stated

that his father was residing in his house and when he came his house, he saw that from the house of his father, the police personnel took his mother

along with them and then he went to the police station and asked the police party as to why they have brought his mother to the police station and

then he was told to bring his father to the police station. The police authorities, later on, let his mother go and a case has been registered against

him for offence under Section 8/18 of the NDPS Act.

The trial court has considered the evidence on record. Niranjan Kumar, who is panch witnes; in respect of Mukhbir panchnama; search

panchnama in respect of house; consent panchnama and seizure panchnama relating to identification of the contraband. Niranjak Kumar has

supported the prosecution case and he has accepted the signature on the mukhbid panchnama, however, he has stated that he has not given any

information to the police. He has also stated that he cannot tell to which house, he was taken by the police and at last, he has stated that he is no

aware about the proceedings, which has taken place though he has signed the Panchnama.

PW-10, K.K. Upadhyaya, Station House Officer, Namli has stated that Panchnama (Ex.P-1) was prepared in presence of Panch witnesses

namely Niranjan S/o Bherulal and Lalu S/o Kodar. He has entered the information regarding opium in the house on 10.04.1996 in Rojnamcha

Sana No.364 to that effect (Ex.P-20). He has also stated that he has unsuccessfully tried to inform about the opium to the SDOP, Sailana but

could not contact him and later on, Superintendent of Police, Sailana was informed about the information and the same has been entered in

Rajnamcha Sana No.365 dated 10.04.1996 (Ex.P-21).

The report of the informant was also recorded in the Panchnama and sent through constable Ramalal (constable No.264) through dispatch

No.849/96 to SDOP, Sailana. The relevant entry finds place in Rojnamchasana No.366 dated 10.04.1996 (Ex.P-22). The same witness, PW-10

states that later on, he along with Assistant Sub-Inspector ''Rohila; Head Constable- Jailal and Constable-Hemant, Constable- Mewaram,

Constable-Mukutsingh along with witness- Niranjan in a private vehicle went to the spot. The entry to that effect is entered in Rojnamachasana

No.367 (Ex.P23). The witness has further stated that thereafter, they reached the police station- Sailana and SDOP, Sailana was informed about

the information of Mukhbir and on telephone, T.I., Sailana informed, SO-Shivgarh that they are reaching the house of Rameshwar Patidar. After

reaching the spot, he has informed Rameshwar about the information of opium in his house and an option was given to him for getting the search

done by the Gazetted Officer or Magistrate or SHO, who was present, for which the accused consented for search. Notice given to Rameshwar is

Ex.P-2 and consent panchnama is Ex.P-4.

In such circumstances, the trial court has held compliance of Section 42 of the NDPS Act. Search panchnama was prepared vide Ex.P-5 and

in two fertilizer bags, the contraband like opium was found and the seizure panchnama Ex.P-6 was prepared and it has been signed by the

witnesses. After smelling the contraband, Panchnama Ex.P-7 was prepared and it was weighed also. After measuring the weight of the opium,

Panchnama Ex.P-8 was prepared. All this has been supported by the witness- K.K. Upadhyaya, SHO.

ASI, Omprakash Rohila and SHO, K.K. Upadhyaya have also stated that small bag of 50 gms each were prepared as samples and the seals

were affixed on them and the seized contraband was kept in proper custody and it was sent to the Forensic Science Laboratory and the certificate

issued by the Gram Pachayat, Ex.P-12 was brought on record in respect of the ownership of the house Ex.P-19 and the electricity bill of the house

establishes that the house belongs to Rameshwar.

As per the FSL report, it is established that the contraband seized is opium and the trial court has placed heavy reliance upon Ex.P-12 to

establish that Rameshwar was the owner of the house in question. The certificate of gram panchayat which was produced during the trial Ex.P-12

states as under:-

A. The house from which the opium has been seized is entered in the record of the Gram Panchayat in the name of Bherulal S/o Nanuram and

Rameshwar S/o Bherulal.

B. As per the record, adjoining house belongs to Ramesh S/o Bagdiram and Tarachand S/o Shobharam.

C. In the house of Rameshwar S/o Bherulal as well as Bherulal S/o Nanuram and Chenuram S/o Bherulal were residing, meaning thereby, the

house in question was in the exclusive ownership of Bherulal, meaning thereby, father of the present appellant. The prosecution has also obtained

certificate from M.P. Electricity Board Ex.P-19 and the Electricity Board has certified that the electric connection of the house is in the name of

Bherural S/o Nanuram Patidar.

Shri Patne, learned counsel has vehementally argued before this Court that the contraband was not recovered from the exclusive possession of

the present appellant and the house was in joint names and large number of people were residing inside the house and merely because the appellant

is also residing in the house, it cannot be said that the opium recovered was in exclusive possession of the present appellant. Shri Patne, learned

counsel has placed reliance upon the judgment delivered in the case of Noor Aga Vs. State of Punjab and others, reported in 2008 (16) SCC,

Paragraph Nos. 56 to 59 of the aforesaid judgment read as under:-

The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a

heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling

provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of

guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts

on the prosecution, i.e., ''proof beyond all reasonable doubt'' would be more onerous. A heightened scrutiny test would be necessary

to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and

intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and

dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the

Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of ''wider civilization''. The

courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is

the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev

Singh, (1999) 3 SCC 977, it was stated:

It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a

statute are scrupulously followed.

It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the

conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a

substitute for legal evidence.

Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused

as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption

would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden

exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required

for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the

guilt of accused on the prosecution is ""beyond all reasonable doubt"" but it is ''preponderance of probability''on the accused. If the

prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is

possession of contraband by the accused cannot be said to have been established.

With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was

essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would

continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.

In light of the aforesaid judgment, it can safely be gathered that it is a well settled principle of criminal jurisprudence that more serious

the offence, the stricter is the degree of proof.

In the present case, prosecution has failed to establish that the contraband was in exclusive possession of the appellant.

In the case of Om Prakash @ Baba vs State Of Rajasthan, reported in 2009 (10) SCC, 632, the Hon''ble Supreme Court in Paragraph

Nos.11 and 12 has held as under:-

A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of

recovery is uncertain. As a matter of fact PW.3 has categorically stated that the house from where the recovery had been made

belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and

was in his possession, the prosecution was further required to show the appellant had exclusive possession of the contraband as a

very large number of persons including the appellant and five of his brothers, their children and their parents were living therein.

Admittedly, there is no evidence as to the appellants exclusive possession. In this situation we find that the judgment cited by the

learned counsel that is Mohd. A.Khan''s case fully supports the plea on behalf of the appellant, we observe that in addition to the

ocular evidence, the prosecution had also put on record a document pertaining to the ownership of the house, but despite this, the

Court held as under: (Mohd. Aslam Khan case, SCC P.465 para 9)

The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in

question by producing documents from concerned Registrar''s office or by examining the neighbours. No statement has been made by

the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove

the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the

panchnama. Only one of them was examined as P.W.5 who did not support the prosecution version and therefore was treated as

hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other

independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the

High Court.

To our mind the afore-quoted observations clearly support Mr. Bhatti''s argument. We find that there is no evidence on record to

prove the appellant''s ownership and possession of the premises and the contraband in question."" In the aforesaid case, there was

nothing on record to show that the appellant was in exclusive ownership and possession of the house from which the contraband was

seized. In the present case also, there is no evidence to establish that the contraband recovered from the house was of the appellant

and the appellant was in exclusive possession of the house.

Hon''ble the Supreme Court, in the case of Avtar Singh Vs. State of Punjab, reported in 2002 (7) SCC, 419, in paragraph No.6 has held as

under:-

Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under

Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of

S. 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need

not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in

Inder Sain Vs. State of Punjab (1973 (2) SCC 372) arising under the Opium Act, the learned trial Judge charged the accused of

having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question,

however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk.

Accepting the evidence of PW 4 the Head constable, it is seen that appellant No.3 (Accused No.4) was driving the vehicle loaded

with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the

vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of

the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the

accused and the offending goods. The word ''possession'' no doubt has different shades of meaning and it is quite elastic in its

connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is

custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of

whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such

conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One

of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the

police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods

whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more,

cannot be Cr.A. No.959/1997 (Rameshwar Vs. State of Madhya Pradesh) (-13-) presumed to be in possession of the goods. For

instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at

least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no

such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd

hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence

Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination

under Section 313 Cr.P.C, not even a question was asked that they were the persons in possession of poppy husk placed in the

vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk.

Strangely enough, even the driver was questioned on the same lines. The object of examination under S.313, it is well known, is to

afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no

question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit

their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption

under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the

appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption

under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the

presumption under S.54 of the Act without addressing itself to the question of possession. The approach of both the courts is

erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for

travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither

adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus

vitiated the judgment under appeal.

In the aforesaid case, the appellant No.3 was driving the truck and the appellant No.1 and 2 were sitting on the bags containing

poppy husk in the truck. The Apex Court holding that the appellants were not only the occupant of the truck, held that the persons

who were merely sitting on the bags, in the absence of proof of anything more could not be presumed to be in possession of the

goods.

In the case of State of Punjab Vs. Balkar Singh and another, reported in 2004(3) SCC, 583, again the appellant therein was sitting on the bags

of poppy husk recovered and failed to give any satisfactory explanation for being present and in those circumstance also, the conscious possession

of the appellant was not established as held by the Hon''ble Supreme Court. Paragraph No.3 of the aforesaid judgment reads as under:-

We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that, these

respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony

of PW- 1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy

husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different Villages. The respondent Balkar Singh is a

resident of village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any

investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show

the ownership of the poppy husk. The presence of respondents at the place from where the bags of poppy husk was recovered itself was taken as

possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in

possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that

they were in possession of these articles. Though the respondents raised a plea before the Session Court, the same was not considered by the

Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no

evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to

discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the

High Court.

The Apex court in the case of Ismailkhan Aiyubkhan Pathan Vs. State of Gujrat, reported in 2000 (10) SCC, 257 in paragraph No.4 to 10

has held as under:-

There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no

evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there

evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the

prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not

examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of he neighbours

supported the prosecution case that any one of the accused had a connection with the article in question.

Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room

which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance ""charas"".

It appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what

the High Court has observed :

In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as

to how and why and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their

unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the

relevant time and the substance found from that premises is possessed by them.

There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be

presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under

Section 114 of the Evidence Act merely because these persons were present when PW 7 went there.

Either those persons would have been casually present in the room or at least one of them would have been unaware of what was

going on inside the room. We are not told who among the many accused that one possible innocent person could have been.

In the light of the aforesaid imponderables it is difficult to sustain the conviction as against any one of the appellants. We,

therefore, allow these appeals and set aside the conviction and sentence passed on these appellants. We acquit them and direct them

to be set free unless they are required in any other case."" In the aforesaid case also, the conviction was set aside as the appellant was

convicted on the basis of his presence in the room which was in possession of another person (not an accused in the case) and from

the same room a gunny bag containing narcotic substance ""Charas"" was recovered. In the present case also, the house in question

was in possession of the father of the appellant and there were other persons residing in it and, therefore, the trial court has erred in

law in holding the present appellant guilty of having narcotic contraband even though his conscious possession was not established.

Our own High Court in the case of Remgul alias Remulal Vs. State of M.P. , reported in 2003 (1) MPLJ, 445 in paragraph No.7 and 8 has

held as under:-

PW-2 Amarsingh has stated that he had sold half portion of the house before two and a half years from the date of his

examination in the Court i.e. 30.8.1996 to the appellant No. 1 and for this purpose, he has sworn an affidavit. There was agreement

between them about execution of sale-deed in future and he had also received full amount of consideration. This witness has nowhere

stated as to how he was having title of the said house. The affidavit was neither seized nor filed in the Court and the sale-deed was

not executed. As mentioned above, the house was standing in the name of Nanuram Bheraji whereas the name of this witness in

Amarsingh s/o Shankarlal. PW-1 Banesingh and PW-2 Amarsing have been relied upon by the trial Court for establishing the

ownership and possession of the appellant, but the statements of both these witnesses are not sufficient to place reliance for this

purpose. The prosecution has not examined any witness of that locality to establish this fact. The prosecution witness No. 7 H.S.

Rana, Town Inspector and Investigating Officer alone also is not sufficient to rely that the house was owned and was in exclusive

possession of the appellant No. 1. He has also not given any concrete evidence in this regard. According to him, in para 11, at the

time of search and seizure 4/5 persons were present there, but he did not give the details of those persons. Therefore, mere presence

of the appellant No. 1 is not sufficient to hold that he was the owner and in exclusive possession of the house, from where the search

of contraband article i.e. smack was shown to be made.

Learned counsel placed reliance on the judgment passed by the Supreme Court in the case of Churan Yadav v. State of Bihar :

AIR 1971 SC 1641 and Mohammad Klam Khan v. Narcotics Control Bureau and Anr., E.F.R. (II) 213, Mst Phoolkunwarbai and

Anr. v. State of M.P. 1994 EFR (I) 600 and State of M.P. v. Faz Mohammad 1978 JLJ 2 (DB). All these authorities are

unequivocally say that the prosecution has to establish by adducing satisfactory evidence that the house belonged to and was in

possession of the appellant, and the contraband article was in his conscious possession. In the view of this Court, the learned Trial

Court has not appreciated the evidence in this regard in its proper perspective. There is no satisfactory evidence available on record

to hold that the house was owned and was in possession of the appellant No. 1 and the alleged contraband article (Smack) was

seized from his conscious possession.

In the aforesaid case, the exclusive ownership of the house by the accused has not been established. In the present case also, the

exclusive ownership of the house has not been established and therefore, in light of the aforesaid judgment of our own High Court, the

conviction deserves to be set aside.

Similar view has been taken by this Court in the case reported in ILR 2009 MP 3012 in paragraph No.16. The most important

aspect of the case is that based upon the same set of evidence, the father of the appellant has been acquitted. The father of appellant-

Bherulal was initially absconding and separate trial took place and he has been acquitted by the trial court. The judgment delivered in

the case of ""Police Station Namli Vs. Bherulal"" (S.T. No.141/96) reads as under:-

VERNACULAR MATTER OMITTED

This Court is of the opinion that the certificate issued by the Gram Panchayat categorically reveals that father of the appellant-

Bherulal was the owner of the house in question and the electricity bill was in the name of Bherulal and other persons were also

residing in the house and in those circumstances, Bherulal was acquitted and therefore, the appellant stands at a better footing as he

was not the sole owner of the house and house was in his father''s name and other persons were also residing in it and electricity bill

was in the name of father.

A reliance has also been placed upon the judgment delivered by the Hon''ble Supreme Court in the case of Rajinder Singh Vs. State of

Haryana, reported in 2011 (8) SCC, 130. It has been argued that search was carried out in absence of gazette officer. Paragraph No.11 and 12

of the aforesaid judgment read as under:-

It is therefore clear that the total non-compliance with the provisions sub-section (1) and (2) of Section 42 is impermissible but

delayed compliance with a satisfactory explanation for the delay can, however, be countenanced.. We have gone through the

evidence of PW-6 Kuldip Singh. He clearly admitted in his cross-examination that he had not prepared any record about the secret

information received by him in writing and had not sent any such information to the higher authorities. Likewise, PW-5 DSP Charanjit

Singh did not utter a single word about the receipt of any written information from his junior officer Inspector Kuldip Singh. It is,

therefore, clear that there has been complete noncompliance with the provisions of Section 42(2) of the Act which vitiates the

conviction.

Mr. Dalal, the learned counsel for the respondent- State has, however, referred to paragraph 34 of the judgment of the

Constitution Bench in which general observations have been made with regard to the provisions of Section 41 (1) and 42(2) with

respect to the latest electronic technology and the possibility that the said provisions may not be entirely applicable in such a situation.

Concededly the present case does not fall in this category. In any case the principles settled by the Constitution Bench are in

paragraph 35 and have already been re-produced by us hereinabove. Likewise, the dispatch of a wireless message to PW-6 does

not amount to compliance with Section 42(2) of the Act as held by this Court in State of Karnataka vs. Dondusa Namasa Baddi

(2010) 12 SCC 495.

It is true that search was carried out without informing the Gazetted Officer.

This Court has carefully gone through the aforesaid judgment, however, this Court is of the opinion that the appellant was not in conscious

possession of the contraband and, therefore, the aforesaid arguments canvassed by the appellant are not being considered as the appellant is being

acquitted on the ground of conscience possession.

Hon''ble the Supreme Court in the case of State of Karnataka Vs. Dondusa Namasa Baddi, reported in 2010 (12) SCC, 495 in paragraph

No.5 has held as under:-

Concededly in the present matter, no information was taken down in writing by the police officer or conveyed to the immediate

police officer. Shri A.K. Mishra, the learned State counsel has, however,

forcefully argued that there was evidence in the oral evidence of P.W. 10, the investigating officer, that he had complied the

formalities enjoined by Section 42(2). It is not the case of the prosecution that sufficient time was not available to record the

information in writing and send it to the superior officer and in the face of it, we are of the opinion that any oral evidence of the police

officer will not be in compliance with the provisions of Section 42(2) of the Act.

In the aforesaid case, the police officer has not recorded information nor conveyed the same to immediate superior and the benefit

was given to the accused therein, however, it is reiterated that the conscious possession of the appellant has not been proved and,

therefore, this ground is not being looked into.

A reliance has also been placed upon the judgment delivered by the Hon''ble Supreme Court in the case of State of Punjab Vs Hari Singh and

others, reported in 2009 (4) SCC, 200. Paragraph Nos.16 to 18 of the aforesaid judgment read as under:-

In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to

possession, much less conscious possession was put to the accused under Section 313 Cr.P.C. The questioning under Section 313

Cr.P.C. is not an empty formality.

A few decisions of this Court need to be noticed in this context.

In Bibhuti Bhusan Das Gupta & Anr. v. State of West Bengal (AIR 1969 SC 381), this Court held that the pleader cannot

represent the accused for the purpose of Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ''Old

Code'') which is presently Section 313 Cr.P.C.

Section 313 Cr.P.C. reads as follows:

Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any

circumstances appearing in the evidence against him, the court--

(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally

on the case:

Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense

with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in

any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

The forerunner of the said provision in the Old Code was Section 342 therein. It was worded thus:

(1) 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 shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been

examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them;

but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in

any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(4) No oath shall be administered to the accused when he is examined under sub-section (1).

Dealing with the position as the section remained in the original form under the Old Code, a three-Judge Bench of this Court in

Hate Singh Bhagat Singh v. State of Madhya Bharat (AIR 1953 SC 468) that:

The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the

place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in

evidence and treated as evidence and be duly considered at the trial.

Parliament, thereafter, introduced Section 342-A in the Old Code (which corresponds to Section 315 of the present Code) by

which permission is given to an accused to offer himself to be examined as a witness if he so chose.

In Bibhuti Bhusan Das Gupta''s case (supra) another three- Judge Bench dealing with the combined operation of Sections 342

and 342-A of the Old Code made the following observations:

7....Under Section 342-A only the accused can give evidence in person and his pleader''s evidence cannot be treated as his. The

answers of the accused under Section 342 is intended to be a substitute for the evidence which he can give as a witness under

Section 342-A. The privilege and the duty of answering questions under Section 342 cannot be delegated to a pleader. No doubt the

form of the summons show that the pleader may answer the charges against the accused, but in so answering the charges, he cannot

do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence

is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his

place.

The Law Commission in its 41st Report considered the aforesaid decisions and also various other points of view highlighted by

legal men and then made the report after reaching the conclusion that:

(i) in summons cases where the personal attendance of the accused has been dispensed with, either under Section 205 or under

Section 540-A, the court should have a power to dispense with his examination; and

(ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.

The said recommendation has been followed up by Parliament and Section 313 of the Code, as is presently worded, is the result

of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such

questioning only in summons cases and in all other cases it is incumbent on the court to question the accused personally after closing

prosecution evidence. Nonetheless, the Law Commission was conscious that the rule may have to be relaxed eventually, particularly

when there is improvement in literacy and legal-aid facilities in the country. This thinking can be discerned from the following

suggestion made by the Law Commission in the same report:

24.45 We have, after considering the various aspects of the matter as summarised above, come to the conclusion that Section 342

should not be deleted. In our opinion, the stage has not yet come for it being removed from the statute-book. With further increase in

literacy and with better facilities for legal aid, it may be possible to take that step in the future.

The position has to be considered in the present set-up, particularly after the lapse of more than a quarter of a century through

which period revolutionary changes in the technology of communication and transmission have taken place, thanks to the advent of

computerisation. There is marked improvement in the facilities for legal aid in the country during the preceding twenty-five years.

Hence a fresh look can be made now. We are mindful of the fact that a two-Judge Bench in Usha K. Pillai has found that the

examination of an accused personally can be dispensed with only in summons case. Their Lordships were considering a case where

the offence involved was Section 363 IPC. The two-Judge Bench held thus: (SCC pp. 212-13, para 4)

A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term

exceeding two years. Since an offence under Section 363 IPC is punishable with imprisonment for a term exceeding two years it is a

warrant case and not a summons case. Therefore, even in cases where the court has dispensed with the personal attendance of the

accused under Section 205(1) or Section 317 of the Code, the court cannot dispense with the examination of the accused under

clause (b) of Section 313 of the Code because such examination is mandatory.

Contextually we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of

Maharashtra (1973 (2) SCC 793) as the Bench has widened the sweep of the provision concerning examination of the accused after

closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on

a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations

therein: (SCC p. 806, para 16)

16....It is trite law, nevertheless fundamental, that the prisoner''s attention should be drawn to every inculpatory material so as to

enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial

itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate

the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not

being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to

call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him

but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such

circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper

time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court

had relied for its conviction.

The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised

by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation

offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused

himself.

What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit

language that it is ""for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against

him"". In Jai Dev v. State of Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has

focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

21.....The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire

whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of

prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been

caused to him, that would no doubt be a serious infirmity.

Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in

reaching the final conclusion.

At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the

most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word ""may"" in clause (a) of sub-section (1)

in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the

accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would

result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain,

can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used

against him.

But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission

and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by

personally remaining present in court. We clarify that this is the requirement and would be the general rule. However, if remaining

present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the

situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations

and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the

court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering

further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should

a criminal court be rendered helpless in such a situation?

The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is ""summons

cases"". It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding

two years is a ""summons case"". Thus, all other offences generally belong to a different category altogether among which are included

offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death

penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave

offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a

predicament deserving such a help?

Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in

any written statement. When any such statement is filed the court is obliged to make it part of the record of the case. Even if such

case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences

exclusively triable by the Court of Session can also exercise such a right to put in written statements (Section 233(2) of the Code). It

is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written

statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him

in the manner set out hereinafter, in special contingencies, be afforded the same worth.

We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word ""shall"" in clause

(b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the

benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the

accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to

travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time

adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?

If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he

may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can

pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing

the following matters:

(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.

(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such

questioning.

(c) An undertaking that he would not raise any grievance on that score at any stage of the case.

If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to

the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of

the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly

authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the

answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the

appropriate place in the questionnaire (as a matter of precaution the court may keep photocopy or carbon copy of the questionnaire

before it is supplied to the accused for an answer). If the accused fails to return the questionnaire duly answered as aforesaid within

the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such

questioning. The Court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for

taking statement of accused.

In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in

Section 313 of the Code.

The above position was indicated in Basav Raj R Patil v. State of Karnataka (2000 (8) SCC 740).

It is true that in Chandu Lal Chandraker''s case (supra) two Hon''ble Judges have taken a view supporting that of the appellant. It

appears that in said case no reference was made to Bibhuti Bhusan Das Gupta''s case (supra).

Judged in the background of principles set out in Basav Raj R. Patil''s case (supra) the inevitable conclusion is that the High

Court''s impugned order does not suffer from any infirmity to warrant interference.

When the accused was examined under Section 313 Cr.P.C., the essence of accusation was not brought to his notice, more

particularly, that possession aspect, as was observed by this Court in Avtar Singha and Ors. v. State of Punjab (2002 (7) SCC 419).

The effect of such omission vitally affects the prosecution case.

In the aforesaid case, it has been held that questioning under Section 313 is not an empty formality. Essence of accusation has to be

brought to the notice of accused while examining him under Section 313.

In the present case also, no such question of acquisition was asked to the accused while examining him under Section 313 of Cr.P.C.

Not only this, some of the listed witness and other witnesses were not examined. One Durgadas has not been examined, who was the

constable and who had deposited the contraband. There was no corresponding entries of depositing the contraband in the Malkhana Register.

Ratanlal was not examined though he was the witness. The glaring mistake committed by the trial court is that Durga Prasad was not examined

before the trial court, however, the trial court has stated in the judgment that Durga Prasad has been examined and the accused has been held

guilty.

This Court in light of the aforesaid is of the opinion that the conscious possession of the contraband was not established and one of the co-

accused residing in the same house who is the father of the present appellant has been given clean chit by the trial court and the case of the present

appellant, which has been proved against him on the basis of the same set of evidence, deserves consideration in light of the fact that father of the

appellant has been acquitted and in light of the fact that the appellant was not the exclusive owner, nor was in exclusive possession of the property

from which the contraband was recovered, the judgment deserves to be set aside and is accordingly set aside. The accused is acquitted by giving

him the benefit of doubt. The appeal stands allowed and the bail bonds stand discharged.