TaxTMI 
TaxTMI 
2009 (3) TMI 12
X X X X Extracts X X X X
X X X X Extracts X X X X
....salwars and a plastic bag left abandoned in the field near DCB end point. They called two panchs from the area and the three packages found lying abandoned in the field were opened in their presence from which 56 packets of light brown powder, each weighing one kg. were recovered and seized by the Custom staff under Section 110 of the Customs Act, 1962 (in short 'Customs Act'). Apart from that, one pair of Chappal and two pairs of shoes total three footwear were also recovered from the spot. Recovered material appeared to be some Narcotic Drug in packets and in yellow brownish paper kept in polythene bags wrapped in cotton cloth bearing stamp marking in Urdu Khadi No.1, No.858 and 223. It was subjected to drug test by the Custom Staff with U.N. Drug test kit and it was confirmed that the material was contraband Morphine Heroin or its derivative. Recovery-cum-seizure memo of the Heroin was prepared and panchnama was drawn on spot. The samples were taken out of the seized material and sent for chemical analysis to FSL, Jammu who in its report revealed that Diactyl Morphine 'Heroin was found present in the samples taken out of the recovered light brown powder. The identity of infiltra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort 'the New Code'). The High Court found substance in the second plea and directed acquittal. 6. In support of the appeal learned counsel for the appellant submitted that though minor errors and omissions in bringing to the notice of the accused the incriminating materials are not vulnerable, in this case a very specific plea relating to the foundation of the prosecution case and the evidence on which the reliance was placed was put to the accused. That being so, the High Court is in error by directing acquittal. 7. Stand of the learned counsel for the appellant further that the approach was hyper-technical and was not in line with the true intent of Section 342 or Section 313 of the Code. 8. Learned counsel for the respondents on the other hand supported the judgment. 9. It is to be noted that the High Court did not accept the stand relating to non compliance of Section 41(2) of the Act. It only interfered on the ground that the relevant incriminatory materials were not put to the accused when they were being examined. 10. Section 313 Cr.P.C. reads as follows: "313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "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." 13. 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. 14. 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: "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 agains....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ul of the fact that a two-Judge Bench in Usha K. Pillai (1993 (3) SCC 208) 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." 18. 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 evidenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omplied with. He observed thus: "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." 21. 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. 22. 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 han....