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2005 DIGILAW 102 (JK)

Mohd. Bilal Alias Biloo v. State

2005-04-07

NIRMAL SINGH, Y.P.NARGOTRA

body2005
NIRMAL SINGH, J. :- This appeal is directed against the judgment dated 30-1-2002 and order of sentence dated 1-2-2002 passed by the learned sessions Judge, Jammu. The appellant was prosecuted on the allegation that on 12-6-1997 at about 4 a.m. he was apprehended by a joint party of the Narcotics Control Board New Delhi and BSF near Nallah at milestone 33 in the area of Samba. The search of the accused was conducted after giving a notice to him under Section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter called the Act) From his search two packets of brown sugar (heroin) were recovered, each packet was containing 1 kg. heroin. To prove the case, the prosecution has examined the witnesses namely, Akhleshwar Singh, Deputy Commandant, BSF, Rattan Chand, Intelligence Inspector, Preetam Singh HC, Jaspal Singh Havaldar, Kamal Kant, Intelligence Officer, Kuldeep Raj, Joginder Kumar, Mukesh Khullar Collector and Dr. Y. K. Singh Rathore Chemical Examiner CRCL. When the appellant was examined under Section 342 Cr. P.C., he denied his complicity in the offence and pleaded false implication. He was called to lead defence evidence, but he has not examined any witness in his defence. The learned sessions Judge, Jammu accepted the case of the prosecution holding him guilty under Sections 21 and 23 of the Act sentenced him to undergo Rigorous Imprisonment for 15 years and to pay a fine of Rs. 1.50 lakhs under Section 21 of the Act. In default of payment of fine, he will further undergo Rigorous Imprisonment for three years. The appellant was also sentenced u/S. 23 of the Act to undergo 15 years Rigorous Imprisonment and to pay a fine of Rs. 1.50 lakh. In default, he shall further undergo rigorous imprisonment for three years. However, it was ordered that both the sentences shall run concurrently. The appellant being aggrieved by the order of conviction and sentence has preferred this appeal. The appellant has assailed the judgment of the learned Sessions Judge on number of grounds by alleging that there is no compliance of Section 52-A of the Act. No recovery has been effected from the appellant. The witnesses examined by the prosecution have made contradictory statements. The appellant has assailed the judgment of the learned Sessions Judge on number of grounds by alleging that there is no compliance of Section 52-A of the Act. No recovery has been effected from the appellant. The witnesses examined by the prosecution have made contradictory statements. The confessional statement recorded u/S. 67 of the Act cannot be read against the appellant as the said statement was written by one Pritam Singh, Head Constable of BSF, Samba, whereas the Investigating Officer of the Narcotics Control Bureau did not know Urdu at all and Pritam Singh Head Constable was not competent to record the statement of the appellant under Section 67 of the Act. The appellant also took the grounds that the statement recorded u/S. 342 Cr. P.C. is no statement in the eyes of law. He contended that when the statement has not been recorded in consonance with the provision of Section 342 Cr. P.C. the trial vitiates on that account. We have considered the submissions of the learned counsel for the appellant and perused the record. Before considering the other submissions, we examined the statement of the appellant recorded under Section 342 Cr. P.C. The learned sessions Judge has recorded the statement of the appellant under Section 342 Cr. P.C. on 21-12-2002 without oath : "Question : Have you heard the contents of the notice exhibited as EXPW-KK, Panchnama EXPW-KK1, Notice u/S. 67 of the Act EXPW KK2, EXPW-PS, EXPW RC 1, EXPW RC arrest memo, forwarding letter EXPW-MK, Test memo EXPW-KKIII, Sample EXPW YK-I BB Dev, Test report EXPW YK 2 and EXPW-YK and what you want to say ? Answer : I am innocent. I have no knowledge with regard to the documents mentioned above. Actually I was arrested on 12-6-1997 by BSF personnel and was given beating and under pressure they obtained my signature on blank papers. No recovery of heroin was effected from me. Question : Do you want to say anything more ? Answer : I am innocent. I have not committed any offence. I want justice." We have perused the statement recorded under Section 342 Cr. P.C. After perusing the statement, we are of the considered opinion that it is no statement in the eyes of law as this statement has not been recorded in consonance with the provision of Section 342 Cr. I have not committed any offence. I want justice." We have perused the statement recorded under Section 342 Cr. P.C. After perusing the statement, we are of the considered opinion that it is no statement in the eyes of law as this statement has not been recorded in consonance with the provision of Section 342 Cr. P.C. Recording of the statement is not a mere formality, but it is the valuable right given to the accused that he should be made aware of each and every incriminating evidence which has to be used against him. Therefore, it is the duty of the Court to put all the incriminating evidence appearing in the prosecution evidence to the accused so that he may explain it, but in the case in hand, the learned Sessions Judge did not even care to ask the accused the routine question. In case titled Machander v. The State of Hyderabad, AIR 1955 SC 792 : (1955 Cri LJ 1644), the Apex Court has held as under :- "Judges and Magistrates must realize the importance of the examination under 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." The next question which erupts up in this appeal is whether the proceeding against the appellant has vitiated because the statement has not been recorded in consonance with the provisions of Section 342 Cr. P.C. or the case is to be remanded back for deciding it afresh. We have observed above that it is the duty of the Court to record the statement of the accused under Section 342 Cr. P.C. not of the prosecution. If the statement of the accused has not been recorded by the Court in consonance with the provisions of Section 342 Cr. P.C. this is an illegality committed by the Court not by the prosecution. On that account, the entire trial is not to be vitiated but this irregularity committed by the Court can be ratified so that accused may get an opportunity to explain incriminating evidence appearing against him in the prosecution evidence. P.C. this is an illegality committed by the Court not by the prosecution. On that account, the entire trial is not to be vitiated but this irregularity committed by the Court can be ratified so that accused may get an opportunity to explain incriminating evidence appearing against him in the prosecution evidence. In Janak Yadav v. State of Bihar, 1999 SCC (Cri) 558 the Apex Court has held as under :- "5. Section 313 Cr. P.C. prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecutions evidence. That opportunity is a valuable one and cannot be ignored. It is not a case of defective examination under Section 313 Cr. P.C. where the question of prejudice may be examined but a case of no examination at all under Section 313 Cr. P.C. and as such the question whether or not the appellants have been prejudiced on account of that omission is really of no relevance. It was open to the High Court to have either examined the accused, whose statements under Section 313 Cr. P.C. had not been recorded, itself under Section 313 Cr. P.C. and then proceeded with the hearing of the appeal or directed retrial of the case confined to the stage of recording of the statements of the appellants under Section 313 Cr. P.C. but it was not justified to order the retrial of the entire case by framing de novo charges and examining afresh prosecution evidence. The direction of the High Court to that extent cannot be sustained." Section 313 of Criminal Procedure Code of 1973 is pari materia to section 342 of Cr. P.C. which is applicable in the State of Jammu and Kashmir so the case is fully covered by the above said judgment. The trial in this case has been conducted by the Sessions Judge. The learned Sessions Judge is the Head of criminal justice system in the sessions Division and this assignment has been given to him taking into consideration his long experience in dealing with the sessions cases. From the conduct of the learned sessions Judge, it shows either he has not perused the provisions of Section 342 Cr. P.C. at any stage of his career or he has taken the provision lightly. By taking the provision lightly he has wasted time of the Courts. From the conduct of the learned sessions Judge, it shows either he has not perused the provisions of Section 342 Cr. P.C. at any stage of his career or he has taken the provision lightly. By taking the provision lightly he has wasted time of the Courts. If the learned sessions Judge has taken a little care, then case would have been decided expeditiously. In view of the above discussion, we have no other option except to set aside the judgment of the learned sessions Judge by accepting this appeal and we remit the case back to the learned sessions Judge with the direction to record the statement of the appellant under Section 342 Cr. P.C. and to proceeded further according to law. He is further directed to decide the case within two months on receipt of copy of the order. The parties are directed to appear before the learned sessions Judge, Jammu on April 15, 2005. Copy of the order be sent to sessions Judge concerned wherever he is posted. Order accordingly.