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TMI Blog2001 (9) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... ct before the Court of a Judicial Magistrate of Ist Class, Ludhiana. The substance of the allegation against him was that he was found in possession of 4.5 kg. Of opium wrapped in glazed papers on 11.10.1984. The police version was this: while some of the police personnel were returning after patrol duty they came across the respondent near the railway crossing at Kanod village (Sanhewal in Ludhiana district). On seeing the police he tried to run away from the scene and then the police felt suspicious about him and intercepted him. When a search was conducted the police could seize the contraband article (Opium) from him. The police officials separated ten grams of Opium as a sample and put it in a matchbox and sealed it. The sample was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The following is what the learned Single Judge said: There is no need at all to go into the details of this case in as much as it has been undisputed during the course of arguments before this court that affidavits of police officials, who had handled the opium and taken the same to the Chemical Examiner, even though filed in court, no opportunity was given to the petitioner to cross examine those, who had filed their affidavits. In other words, they were not tendered for cross-examination. Further, it has remained undisputed that affidavits of these witnesses were not even put to petitioner in his statement under Section 313 Cr.P.C. We feel that the view adopted by the learned Single judge was too stilted for approval. At any rate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieving the witness of his troubles, when all that the said witness has to say in court relates only to some formal points. What is meant by an evidence of a formal character? It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law. Evidence, if necessary on those formalities, should normally be tendered by affidavits and not by examining all such policemen in court. If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the Court that he requires the deponent to be examined or cross-examined in Court. This is provided in sub-section (2) of Section 296 of the Code. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery item of evidence, even of a formal nature, should also form part of the questions under Section 313 of the Code. That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge was held to be a sufficient substitute for the answers given by the accused himself. If such objection was not raised at the appellate stage the revisional court should not normally bother about it. At any rate, the omission to put the question concerning evidence which is purely of a formal nature, is too insufficient for holding that the proceedings were vitiated. The evidence sought to be advanced through the affidavits in this case is, no doubt, only of a formal nature. For aforesaid reasons we allow this appeal and set aside the impugned judgment of the High Court. We remit the revision filed by the respondent before the High Court to be disposed of afresh after affording a reasonable opportunity to both sides for hearing. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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