Holding

An omission to put specific inculpatory material to the accused under Section 313 CrPC does not per se invalidate the trial; if the accused is not prejudiced, the evidence remains admissible.

Summary

The appellant State of Punjab proved that the accused, Swaran Singh, was apprehended on 17 May 1992 with a plastic bag containing approximately 5 kg of opium; a 10‑gram sample was taken, sealed and sent for forensic analysis, and the chain of custody was testified to by PW‑1 and PW‑4. The accused was examined under Section 313 of the CrPC, denied the allegations, and was not specifically asked about the testimony of PW‑1 and PW‑4. The Punjab & Haryana High Court acquitted him on the ground that the evidence of those witnesses had not been put to him, deeming it inadmissible. The Supreme Court held that an omission to put particular inculpatory material to the accused does not automatically vitiate the trial if the accused was not prejudiced, especially when the evidence was recorded in his presence and he had the opportunity to cross‑examine. Consequently, the Court set aside the High Court judgment, restored the conviction under Section 18 of the NDPS Act, and ordered the respondent to serve the remaining sentence.

Issues considered

Whether the failure to specifically put the testimony of prosecution witnesses PW‑1 and PW‑4 to the accused under Section 313 CrPC renders that evidence inadmissible.
Whether such omission, if not causing prejudice to the accused, vitiates the trial proceedings.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 50

Subjects

Section 313 CrPCNDPS Actevidence admissibilitychain of custodyfair trialomissioncross‑examinationconviction

Judgment

A STATE OF PUNJAB
v.
SA WARAN SINGH

/
JUL y 25, 2005

B [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

Code. of Criminal Procedure, I 973-Section 3 I J~Purpose of-Held:
The provision is meant to give opportunity to accused to explain the evidence
C against him-But when during trial, he r,Joes not seriously deny the allegations,
then any omission during statement under Section 3 I 3 is not fatal to the
prosecution's case.

According to the Prosecution, on 17.5.1992 the accused was
apprehended and on his search a bag was found suspected to contain opium
D and a sample was taken. The sample and remaining content of the recovered
substance was sealed and taken into possession by the IO. The two sealed
packets were handed over to PW-1 and kept by him in Malkhana. On 9.6.1992,
PW-1 handed over the property to PW-4. Durin'g this period, there was no
tampering with the seal of the packets.

E The Sessions Judge found him guilty for offence punishable under
Section 18 of the NDPS Act. The High Court acquitted hi"1 on.the ground
that the evidence of PW-1 and PW-4 were not put to the accused while he was
examined.
under Section JU CrPC and as such these
/
items could not be used
against the accused. Hence the present appeal.

F Dispc)sing of the appeal, the Court

HELD: 1. When PW-1 and PW-4 were examined as witnesses, the.
accused did not seriously dispute .their evidence. The evidence of PW 1 and
PW 4 was not challenged in the cross-examination except for a general
suggestion that they had been deposing falsely. The accused had no case that
G the seal was ever tamP4!red with by any person nor thatthere was any case of
mistaken identity as regards the sample and that the report of the Chemical
Analyst was not of the same sample taken from the accused. li.xcept making
a general suggestion, the accused had completely admitted the evidence of
PW-1 and PW-4 as regards the receipt of the sample, sealing of the same
H 786
STATE OF PUNJAB v. SAWARAN SINGH 787
. and sending it to the Chemical Analyst. This was pointed out only to show A
that the accused was not in any way prejudiced by the factof not ha".ing been
questioned by making a specific reference-to the evidence of PW-I and .
PW-4. (790-~ F, G)
2. The questioning of the .accused,under Section-313 is done to enable_
him to give an opportunity to explain any circumstances which· ha~e ~ome out B
in the ~vidence agai~st him. The entire evidence is recorded iii his presence
and he i.s given a full opportunity to cross-examine each and every witness
examined on the prosecution side. He is giv-en copies of.al,Aocuments which
are sought to be relied on by the prosecution. Apart from all these, as part of
fair trial the accused is given the opportunity to give his explanation regarding .
the e~idence adduced by the prosecution~. Ho~ever? it is not necessary that. the . C
entire prosecution evidence need be put to him and answes:s elfoited fJOm the
accused. If there were circumstances in the.evidence .which are adverse to
the accused and tiis explanation would help the court evaluating the evidence
projlerJy, the court should bring: th.e same to the nc.~tice of the accused to enable
him tO give any explanation or answers for such adverse circumstance in the D
evidence. Generally composite questions shall not be asked to the accused
bundling many facts together. Questions must be such that any reasonable
person in the position of the accused should be in a position to give a rational .
explanation to the questions as asked: There shall no(be failure· of justice on
account.ofan unfair trial. (791-E, F, G,.H;c792-A) -·
'
.E
State (Delhi Admn.) v. Dharampal, J2001) 10 SCC 372; Jai Dev v. State
ofPunjab, AIR (19~3) SC 612; Bakhshish Singh v. State ofPunjab, AIR (1967)
SC 752 and Shivaji Sahabrao Bobade v. State ofMaharashtra, (1973] 2 SCC
793, referred to. . ·
3. In the instant case, the accused was not in any way prejudiced by not F
giving him an opportunity to answer specifically regarding the evidence of
PW-1 and PW 4. I(at all, the ~vidence of PW-1 and PW-4 was recorded in
his presence, he had the opportunity to,cross-examine the witnesses but
despite this ·he did not specifically cro~s~examine these two witnesses in
respect of the facts.deposed by them .. The Single J°'Jge seriously erred. in
holding that the evidence of PW-1 and PW-4 could not have been used· against .G
the acciJSed. The acquittal of the accused was improper a·s the_evidence in
this case clearly established that the accused was in possession of 5 Kg of
opium arid thereby committed the offence under Section 18 of the NDPS Act.
, . , . - . (793-D, E, FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 763 of H
, 788 SUPREME COURT REPORTS [2005) SUPP, 1 S,C.R.

A 1997.
From the Judgm¢nt and Order dated 13.2.97 of the Punjab and Haryana
High Court in Crl.A.No. 282-SB of 1995.

Arun K Sinha, Rakesh Singh and ~imal Roy Jad, for the Appellant.
B
Ms. Sudesh' Kumari and Dinesh Verma for R.D. Upadhyay for the
Respondent. ,

The Judgment of the Court was delivered by

~~
c PunjabK.G. BALAKRISHNAN, J. This is an appeal preferred by the State of
against the decision of the Division Bench' of the Punjab & Haryana
·~;.~~~-'-'
....... .'
~-~· High Court in Criminal Appeal No. 282-SB of 1995. By the impugned Judgment,
the learned Single Judge acquitted the ·respondent for the offence under
Section 18 of the NDPS Act, 1985. ·

D The prosecution case was ' tha,t on 175.1992, the Station House Officer
of Police Station, Voltoha, accompanied by ASI N~al Singh and LC Balwinder
Singh were proceeding fro~ A~arkot to Mehmoodpura on patrol duty. When
they ~eached Mehmo.odpura, they saw accused Swaran Singh coming from
the opposite side. On.seeing the police party, the accused sat down by ,the
side of the road as if to answer the call of the nature. Accused_ Swaran Singh
E was apprehended and he was told that he was to be searched and if he so
desired the search 'would, be conducted in the presence of a Gazetted Officer
or a Magistrate. The accused. did not desire to be searched in the presence
of a Gazatted Officer or Magistrate.

On being searched, the accused was found carrying a plastic bag and
F on further search it was revealed that the bag contained a packet wrapped
in a-glazed paper. The contents of the bag were suspected to be opium. The
substance weighed about 5 kg. out of which a quantity of 10 grams was taken
for the purpose of sampling. The sample as well as the remaining quantity of
the recovered substance were sealed and taken into possession by the
G Investigating Officer. This sample was entrusted to the Police Station Valtoha
where the formal First Information Report was registered. The property
recovered from the accused along with the samples was kept in the Malkhana.
Subsequently the sample was sent for analysis to the Forensic Science
Laboratory and the Exhibit PF certificate confirmed the_ sample to be opium.

H On the side of the prosecution, PW-I to PW-5 were examined. Before
STATE OF PUNJAB v. SAWARAN SINGH [BALAKRISHNAN, J.] 789

the Sessions Court, the accused raised several pleas including the violation A
of Section 50 of NDPS Act. The Sessions Judge held that the recoyery of
opium was fully proved and the defence version that it was a false case was
not correct -and that the accused had thus committed the offence punishable
under Section 18 of the NDPS Act.

Challenging his conviction, the respondent accused preferred an appeal B
before the High Court. The learned Counsel for the accused raised a plea that
the evidence of PW-1 ASI Harbhajan Singh and the evidence of PW-4 MHC
Guizar Singh and the contents of the affidavit of Constable Anup Singh Exh.
PB were not put to the accused while he was examined under Section 313 Cr.
PC. Therefore, these items of evidence could not have been used against the C
accused and based on the decision of the Punjab & Haryana High Court
in Darshan Singh v. State of Punjab, (1995) 3 Recent C.R. 365, the accused
was acquitted of all the charges. This is challenged before us.

We heard the learned counsel for the appellant-State and the learned
counsel for the respondent. D
The evidence of PW-1 was to the effect that on 17.5.1992, Inspector
Suba Singh handed over to him two sealed parcels pertaining to this case
bearing the impression 'SS' along with one bag and that the property was
kept in Malkhana by him. On 9.6.1992; he handed over the property to
PW-4 MHC Guizar Singh. During this period, there was no.tampering with the E
seal of the packets. PW-4 MHC Guizar Singh deposed that he had taken
charge of the property of this case on 9 .6.1992 and the property consisted
of two parcels bearing the seals :ss• and that the samples were sealed and
he had sentthe same for chemicai examination on 23.6.1992 thro~gh Constable
Anup Singh. During this period, the case property remained in his possession F
and it was not tampered. The accused-respondent was examined under Section
313 Cr. PC and he was put the following questions:-

Q. It is in evidence ~gainst you that on your personal search by
Inspector Suba Singh, a plastic bag, Exh. P.2 containing opium
wrapped in a glazed paper was recovered, from which I 0 gms. G
opium WCiS taken out as sample and made into a parcel and the
remaining opium 4 kgs. 990 gms. was put 'in a separate dibba
parcel, Ex. P.1. The sample and the parcel, Ex. P. 1, were separately
sealed with seal 'SS'. The case property was taken into possession
vide recovery memo, Ex. PC, attested by the PWs. What you
H
790 , SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A have to say?
A. It is incorrect.

He was also asked:

Q. It is in evidence against you that the sample of the opium
B recovered from you was sent to the Chemical Examiner, who vide
his report, Ex. PF, opined that it conta~ed having I% ~o.ri>hine.
What you have to say?
A. It is incorrect

He was also asked as to why this case was charged against him; why
C.
the PWs had deposed against him and to a. specific question as to whether
he w~ted to say anythin_g else, he answered that he was innocent and he
had been falsely implicated in this case .

. ·. The only reason given by :the learned Single Judge of the High Court
D for acquittlrig the accused is that the evidence of PW I and P,W 4 was not .
speCifically put to.· the accused under Section 3 I 3 Cr. }>C and it was .held that
in the absence of these facts iii the form of questions to. the a~cused, the ·
evidence could not have beeh used against him. It i~ also pertinent to note
in this.regard that when PW-I and PW•4 were examined as·witjie~ses, the
accused did not seriously dispute the evidence of PW-I or PW-4. Th~ only-
E cross examination was that it was incorrect to suggest that the case property
· was not deposited with him and he had deposed falsely. So also, the evidence
of 'PW-4 was not challenged in the cross•exaniination except for a general
suggestion that he had been deposing falsely ~nd that no case property was
handed over to him by PW-I Harbhajan Singh. Accused had no case that the
F seal was ever tampered with by any person and that there was any case of
mistaken identity as regards the sample and that the report of the Chemical
An~lyst was not of the same sample taken from the accused. Except making
a general suggestion, the accused had completely admitted the evidence of
PW-1 and PW-4 as regards the receipt of the sample, sealing of the same and
sending it to the Chemical Analyst. This was pointed out only to show that
.G the accused was not in any way prejudiced by the fact of not having been
questioned by making a specific reference to the evidence of PW-1 and
PW-4. As regards the questioning of the accused under Section 313 Cr. PC,
the relevant provision is as follows:-

"313. Power to examine the accused. (I) In every inquiry or trial, for
H
STATEOFPUNJABv. SAWARANSINGH [BALAKRISHNAN,J.] 791
the purpose of enabling the accused personally to explain an~ A
circumstances· appearing in the evidence against him, the court,

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

(b} shall, after the witnesses for the prosecution have been examined B
and before he is called on the 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) C
(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.· D
(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.
E
The questioning of the accused is done .
to . enable him to give
.
an ·'
opportunity to explain any circumstances which have come out in the evidence
against him. It may be noticed that the entire evidence is recorded in his
presence and he is given full opportunity to cross examine each and every
witness examined on the prosecution side. He is given copies of all'do!uments F
which are sought to be relied on by the prosecution. Apart from all these, as
part of fair trial the accused is given opportunity to &ive his explanation
regarding the evidence adduced by the. prosecution. Howfver, it is not
necessary that the entire prosecution evidence need be · put .to him and
answers elicited from the accused. l.f there were circumstance~ in the evidence
which are adverse to the accused and. his explanation wo,uld help the court G
eval~~ting the evidence properly, the court should bring the same to the
notice of the accused to enable.him to give any explanation or answers for
such adverse circumstance in the evidence. Generally. Composite questions
shall not be asked to accused bundling so many facts together. Questions
must be such that any reasonable person in the position of the accused may H
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A be in a position to give rational explanation to the questions as had been
asked. There shall not be failure of justice on account of an unfair trial.

In State (Delhi Admn.) v. Dharampal, (2001] 10 SCC 372, it was held
as under:

B "That it is to be seen that where an omission, to bring the attention
of the accused to an inculpatory material has occurred, that does not
ipso facto vitiate the proceedings. The accused must show that failure
of justice was occasioned by such omission. Further, in the event of
an inculpatory material not having been put to the accused, the
appellant court can always make good that lapse by calling upon the
c counsel for the accused to show what explanation the accused has
as regards the circumstances established against the accused but not
put to him".

In Jai Dev v. Stqte of Punjab, AIR (1963) SC 612 it was observed thus:

D "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 ~anted 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
E nci doubt be a serious infirmity."
.

In Bakhshish Singh v. State ofPunjab, AIR ( 1967) SC 752, a three judge
bench of this Court held that:

''. ....... .It was not all necessary that each separate piece of evidence
F a
in support of circumstance should be put to the accused and he
should be questioned in respect of it under that section .... "

In Shivaji Sahabrao Bobade v. State of Maharashtra, [l 973] 2 SCC 793
a three judge bench of this Court considering the fallout of omission to put
G to the accused a question on a vital circumstance appearing against him in
the prosecution evidence, widening the sweep of the provision concerning
examination of the accused after closing prosecution evidence made the
following observations:

"It is trite law, nevertheless fundamental, that the prisoner's attention
H should be drawn to ever inculpatory material so as to enable him to
STATE OF PUNJAB v. SA WARAN SINGH [BALAKRISHNAN, J.] 793
explain it. This is the basic fairness of a criminal trial and failures in A
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 form B
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 circumstance established against him not put to him if
the accused unable to offer the appellate court any plausible or
reasonable explanation of such circumstances, the court may assume C
that no acceptable answer exists and that even if the accused has
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."

In the instant case, the accused was not in any way prejudiced by not D
giving him an opportunity to answer specifically regarding the evidence of
PW-1 and PW-4. If at all, the evidence of PW-I and PW-4 was recorded in
his presence, he had the opportunity to cross-examine the witnesses but he
did not specifically cross-examine these two witnesses in respect of the facts
deposed by them. The learned Single Judge seriously erred in holding that E
the evidence of PW-1 and PW-4 could not have been used against the
accused. The acquittal of the accused was improper as the evidence in this
case clearly established that the accused was in possession of 5 Kg of opium
and thereby committed the offence under Section 18 of the NDPS Act.

In the result, we set aside the judgment of the learned Single Judge of F
the High Court of Punjab & Haryana and restore the judgment of the Additional
Sessions Judge, Amritsar in Sessions Case No. 28 of 1993. The Sessions
Judge is directed to take appropriate action to apprehend the respondent to
serve out the remaining period of sentence. Fine, if deposited, shall be
refunded to the appellant.
G
D.G. Appeal disposed of.