3, along with two co-accused, was convicted by the learned Special Judge under the Narcotic Drug and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) for the offence punishable under Section 15 of NPDS Act.
After that, on 28 May 2001, Inspector Ram Phal (PW-11) and Dhian Singh (PW-10) visited railway station Kurail, the destination of the parcels.
He submitted that the case made out by the prosecution that the railway receipt stood in the name of the appellant had not been put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’).
He has not stated that the appellant either showed or produced the railway receipt. In fact, according to his version, the railway receipt was with accused no.2. In the First Information Report of PW-10, Dhian Singh stated that the railway receipt was produced by accused no.
Thus, the incriminating circumstances brought on record against the appellant were: a) The railway receipt of parcels containing contraband was in his name (as Abhimanyu); and b) He, along with the accused no. The circumstance against the appellant that he visited the railway station and enquired with the station supervisor about the contraband parcels has not been put to the appellant during his examination under Section 313 of Meanwhile, your co-accused Rahish alias Munna arrived at Railway Station in the office of station Supervisor and he produced a builty Ex.PC to the said station Supervisor and inquired whether their parcels had reached or not.
The law consistently laid down by this Court can be summarised as under: (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.
The incident is of May 2001, and therefore, it will be unjust to subject the appellant to further examination under Section 313 of CrPC at this stage, nearly twenty-two and half years from the date of the alleged recovery of the contraband. Therefore, the failure to put two relevant circumstances to the appellant in his examination under Section 313 CrPC will be fatal to the prosecution case.
The appeal is allowed on the above terms.
Case Title: NABABUDDIN @ MALLU @ ABHIMANYU Vs. STATE OF HARYANA
Case Number: Crl.A. No.-002333-002333 / 2010
