LexINSPECTOR OF CUSTOMS, AKHNOOR J & K versus YASH PAL AND ANR.
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[2009] 4 S.C.R. 118 A INSPECTOR OF CUSTOMS, AKHNOOR J & K • V. YASH PAL AND ANR. Criminal Appeal No. 447 of 2009 8 MARCH 6, 2009 . (DR. ARIJIT PASAYAT, D.K. JAIN AND DR. MUKUNDAKAM SHARMA, JJ.) NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985: c Sections 8, 21, 41(2)- Heroin - Smuggling of- Seized by Customs Department - Confession before Customs authorities by accused - Trial Court convicting accused - High ... Court acquitting them - Correctness of - Held: The alleged confession before Customs authorities not brought to the D notice of the accused - No infirmity in the order of the High Court to warrant interference - Customs Act, 1962, S.110. c CODE OF CRIMINAL PROCEDURE, 1973: Section 313(1)(b) - The word "shall" to be interpreted as E obligatory on the court and should be complied with when it is for the benefit of the accused - Words and Phrases. The respondents were found guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs "' and Psychotropic Substances Act, 1985, by the trial court. F However, the High Court acquitted them. Hence the appeal. Dismissing the appeal, the Court HELD: 1. It is well settled that the provision viz. s.313 G Cr.P.C. is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 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 H 118 1 INSPECTOR OF CUSTOMS, AKHNOOR J & KV. 119 YASH PALANDANR. of natural justice enshrined in the maxim audi alteram A 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 (b) of the sub-section it would resu1t in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot c be used against him.[Paras 21, 22] [130-G-H; 131-A-B] Jai Dev v. State of Punjab AIR 1963 SC 612 - relied on. Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468; Bibhuti Bhusan Das Gupta & Anr. Vs. State of 0 . West Bengal AIR (1969) SC 381 = (1969) 2 SCR 1041; Usha K. Pillai v. K. Srinivas & Ors. 1993 (3) SCC 208 and Shivaji Sahabrao Bobade v. State of Maharashtra 1973 (2) SCC 793 - referred to. 2. But the situation to be considered now is whether, E with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessar:y that in all cases the accused must answer by personally remaining present in court. It is clarified that F this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not aUeviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court G say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court~ If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long· H 120 SUPREME COURT REPORTS [2009] 4 S. C.R. A without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?[Para 23] [131-C-F] B 3. The one category of offences which is specifically exempted from the rigour of Section 313(1 )(b) of the Code is "summons cases". It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a C "summons case". Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are D several offences in that category which are f
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