S.S.DEWAN,J. - (1.) JOGINDER singh petitioner and two other accused, namely, Monmohan Singh and Bishan Pal Singh were brought to trial for the offence under Section 9 of the Opium Act and having been found guilty thereunder, were convincted and sentenced to two years rigorous imprisonment and a fine of Rs. 1000/- each by the Judicial Magistrate Ist Class, Phillaur, on 5th September, 1980. On appeal, the learned Sessions Judge, Jullunder, acquitted Bishan Pal Singh but while upholding the conviction of Joginder Singh and Manmohan Singh reduced their sentence of imprisonment to one year each and maintained the sentence of fine. Feeling dissatisfied Joginder Singh has now come up in revision.
(2.) IN short, the prosecution case is that on the night intervening 17/18.6.1975 Sub-Inspector Ajit Singh alongwith some other police officials besides Dharam Singh Lambardar and Ishar of Gunna Pind held picket in the area of village Gunna Pind. At about 3 a.m. a truck came from the side of village Bhaini and it was stopped. Bishan Pal Singh accused came out of the truck and ran away while the petitioner along with Manmohan singh and Lakhpat Rai driver of the truck were apprehended at the spot. Eight gunny bags, containing poppy husk were recovered from the truck. The sample of 250 grams of poppy husk taken out from each bag were sent to the Chemical Examiner, and the same were subsequently found to be poppy husk. the case against the petitioner and the other accused primarily rested on the testimony of Sub-Inspector Harbans Singh and Sub-Inspector Ajit Singh. The plea of the accused was that they were falsely implicated in the case and examined three witnesses in defence.
(3.) THE argument laboured with little persistence, on behalf of the petitioner, was that the evidence in respect of taking samples from out of 80 bags of poppy husk recovered and their being sent to the Chemical Examiner and that examination conducted by the Chemical Examiner and that his report was produced in the trial Court yet the same was not put to the petitioner and his co-accused at the time of their examination under Section 313 of the Code of Criminal Procedure (for short the code) and that they were prejudiced thereby, has, in my opinion, consideration force. To repel this argument of the petitioner, the learned counsel for the State, however, contended that the petitioner and his co-accused knew the case against them and, therefore, they were not prejudged by the absence of reference of the Chemical Examiner's report in their examination under Section 313, of the Code. The accused might know what the case against him was but the object of Section 313 of the Code is to give an opportunity to the accused to answer each and every piece of evidence adduced and relied upon by the prosecution. The section is based on the principle involved in the maxim auatalteran, namely, that no person should be condemned unheard and the accused should be heard not merely on what is prima facie proved against him but on every circumstance appearing in evidence against him. In case Machander v. State of Hyderabad, AIR 1955 S.C. 792 their lordships of the Supreme Court observed as under : "Judges and Magistrate must realise the importance of the examination under Section 342. It is their duty to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires." ;