ALI Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in Sessions Case 80 of 1991 before Second Additional Assistant Sessions Judge, Ernakulam is the appellant. He was convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (Act for short) and sentenced to undergo rigorous imprisonment for a period of 1 1/2 years. The prosecution case is that the accused was found possessing 7.6 grams of ganja for purpose of sale near Naval Base Ernakulam Gate at about 5 p.m. on 7-5-1991. The Sub Inspector of Police, Harbour Police Station found 7 small packets of ganja. The accused had no valid permit or licence to possess the article. The article was recovered from his possession and he was arrested. The accused and the contraband article were taken to the Police Station and crime was registered under Section 20(b)(i) of the Act. After trial the Assistant Sessions Judge found the accused guilty of the offence charged against him convicted him and awarded the sentence referred above. Hence the appeal.

(2.) Heard counsel for the appellant and public prosecutor.

(3.) The main contention advanced by learned counsel for the appellant is that inadmissible evidence was permitted to be adduced by the Assistant Sessions Judge. This plea is presumably raised in view of the statement of PW 1 in cross-examination that before he was examined the policeman had read over to him the statement recorded under Section 161 of the Code. It was so stated by P.W. 3 also. According to counsel, the statement can be used only for the purposes mentioned in Section 162 of the Code and not for any other purpose. Narration of the facts in the statement to the witnesses amounts to making use of the statement at the time of trial, according to counsel and that is prohibited by Section 162 of the Code. Reliance is placed on the decision of the Madhya Pradesh High Court in Ramvilas v. State of M. P., (1985 Cri LJ 1773). A Division Bench of the Madhya Pradesh High Court held that where the statement made by the witness to the police was narrated to him not when he was in the witness-box but shortly before entering the witness-box, the evidence of such witness would be inadmissible in view of Section 162 because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. The Madhya Pradesh High Court has followed the Privy Council decision reported in AIR 1947 PC 75, Zahiruddin v. Emperor.But the matter is seen to have been considered at length by a Full Bench of the Gujarat High Court in Nathu v. State, (AIR 1978 Gujarat 49). The following questions were referred to the Full Bench for a decision . 1. Is the evidence of a witness whose statement recorded in the course of investigation under Chapter XII of the Criminal P.C. if read over to him before the witness steps into witness box becomes inadmissible or such as would be of no value whatsoever ? 2. Does such contravention of Section 162(1) affect admissibility or probative value of the evidence of such a witness ? 3. Does reading over of such statement to a witness before he enters witness box amount to use of such statement contrary to Section 162(1) ?