LAL BIKA SANGA Vs. STATE

JUDGEMENT

(1.) On 9-9-1981 at about 1.30 p m. the accused Lal Biak Sanga and his sister Roshngi of Ramblum, Mizoram, were seen coming from the Maurya Hotel in New Delhi each carrying a rexin bag. They were apprehended by the CBI and upon search of the bags 500gms. of contraband heroin was recovered from each of them. The accused disclosed further that another packet was lying in house No. 556, Sector IX, R.K. Puram, of an Under Secretary in the Ministry of Defence, where the accused was staying. So at his information and instance, another 22 gms. of heroin was recovered from a packet discovered in the said house. Kanwal Kishore Gupta (Public Witness 1) was an independent witness and supported the prosecution case. The recovery of heroin in R.K. Puram House was even admitted by the accused. The learned Metropolitan Magistrate convicted the petitioner under section 14 of the Dangerous Drugs Act, 1930 on 17-2-1982. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2000.00 in default whereof to undergo additional rigorous imprisonment for six months. The der of sentence is dated 17.2.1982. The learned Additional Sessions Judge by his judgment dated 27-7-1982 rejected the appeal. Hence, this revision.

(2.) It was urged on behalf of the petitioner that he was not questioned generally upon the circumstances appearing in evidence against him, under section 313 Criminal Procedure Code . in question and answer form which was mandatory because the answers given by the accused may be taken into consideration in the trial and be also 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. The learned Metropolitan Magistrate only prepared a memorandum of the substance of the examination of the accused purpoting to act under section 281(1) Criminal Procedure Code . This was in contravention of section 313 Criminal Procedure Code . and has resulted in prejudice to the accused. It was further pointed out by the learned counsel that the procedure adopted by the learned trial court was against the various decisions of the Supreme Court which require that the examination of the accused should be in question and answer form. Recourse should not have been taken by the learned Metropolitan Magistrate to section 281(1) Criminal Procedure Code . because section 281 has reference only to section 164 Criminal Procedure Code . vide sub-sectiol (4) thereof and not to section 313 Criminal Procedure Code . The petitioner had no opportunity, therefore, to explain each and every circumstances relied upon by the trial court in convicting him. In any case, the practice of recording the statement in a manner provided in section 281 Criminal Procedure Code . needs consideration by this court and calls for its discontinuance. This objection is without any merit.

(3.) The Metropolitan Magistrates have replaced the Presidency Magistrates and the procedure prescribed for them in the old Code and the Metropolitan Magistrates under the new Code is more or less the same. It js not possible nor is there any reason to confine section 281 Criminal Procedure Code . only to purposes of recording of confessions under section 164 Criminal Procedure Code . In order to make a confession recorded under section 164 Criminal Procedure Code . admissible the Magistrates are required to follow the procedure provided in both the sections 164 and 281 Criminal Procedure Code . The Metropolitan Magistrates are required to follow the procedure different from the one followed by the other judicial Magistrates. Even the manner of recording judgments prescribed in respect of them in different, vide section 355 Criminal Procedure Code . Section 281 Criminal Procedure Code . makes it clear beyond doubt that while the court of Session and all Magistrates except the Metropolitan Magistrates are required to record in full every question put to, and every answer given by, the accused, the Metropolitan Magistrate is recquired to make a menorandum of the substance of the examination of the accused. Though the provisions of section 281 sub-sections (2) and (5) are mandatory, vide Nazir Ahmed v. K.E. AIR 1936 P.C. 253, I am not inclined to say so in respect of sub-section 281(1). Section-463, Criminal Procedure Code . even permits a court when such statement is tendered or received in evidence, and it is found by it that the provisions of section 281 Criminal Procedure Code . have not been complied with to take evidence in regard to the non-compliance of section 281 and may if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he made the statement recorded, admit it in evidence. But at the same time, the memorandum prepared by the Metropolitan Magistrates should not be so inadequate as to result in failure of justice. I have gone through the memo of examination in this case and I find that the accused was questioned specifically on the crucial circumstances appearing against him.