2009 (3) TMI 12 - SC - Customs

Appeal against decision of HC directing acquittal of the respondents who were found guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 - relevant incriminatory materials were not put to the accused when they were being examined - while the statement was recorded u/s 342 of the old Code of Criminal Procedure or Section 313 of the new Code - there is no infirmity in the impugned judgment directing acquittal to respondent

Summary

Issues Involved:
1. Non-compliance with Section 41(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Failure to put incriminating materials to the accused during examination under Section 342 of the old Code of Criminal Procedure or Section 313 of the new Code.

Issue-wise Detailed Analysis:

1. Non-compliance with Section 41(2) of the Act:
The High Court did not accept the argument regarding the non-compliance with Section 41(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This section pertains to the authorization for search and seizure operations under the Act. The High Court found no substance in this plea and did not base its judgment on this ground.

2. Failure to Put Incriminating Materials to the Accused:
The primary issue on which the High Court based its judgment was the failure to put incriminating materials to the accused during their examination under Section 342 of the old Code of Criminal Procedure or Section 313 of the new Code. The High Court found that the accused were not given an opportunity to explain the incriminating evidence against them, which is a crucial requirement under these sections. Section 313 of the Code is designed to enable the accused to personally explain any circumstances appearing in the evidence against him. The court must question the accused generally on the case after the prosecution witnesses have been examined and before the accused is called on for his defense.

The Supreme Court elaborated on the significance of this provision, stating that it is intended to benefit the accused and ensure a fair trial. The court emphasized that any failure to put incriminating evidence to the accused can result in a serious infirmity in the trial, potentially leading to a miscarriage of justice. The Supreme Court referred to several precedents, including the decisions in Hate Singh Bhagat Singh v. State of Madhya Bharat and Shivaji Sahabrao Bobade v. State of Maharashtra, to underline the importance of this procedural safeguard.

The Supreme Court also discussed the evolution of this provision, noting that it has been retained to ensure that the accused has a fair opportunity to respond to the evidence against him. The court acknowledged that while technological advancements and improved legal aid facilities might allow for some flexibility, the fundamental principle remains that the accused must be given a chance to explain the evidence personally.

In the present case, the Supreme Court observed that the foundation of the prosecution's case, which was the alleged confession before the Customs Authorities, was not brought to the notice of the accused. This omission was a significant procedural lapse. Consequently, the Supreme Court found no infirmity in the High Court's judgment directing the acquittal of the accused on this ground.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision to acquit the respondents due to the failure to comply with the procedural requirement of putting incriminating materials to the accused during their examination under Section 313 of the Code. This judgment underscores the importance of adhering to procedural safeguards to ensure a fair trial.