AJEET SINGH vs THE STATE

This is an appeal preferred by Ajeet Singh from his conviction under section 156(1), clause 8 read with section 178 of the Customs Act, upon his plea of guilty. In the result of the conviction, he was sentenced to suffer rigorous imprisonment for five years and to five lashes by judgment dated 3-2- 1981 of the Special Judge, Customs, Lahore.

2. According to the prosecution, a party of Sutlej Rangers, on receipt of secret information, raided the house of Khushi Muhammad on 4-1-1981 at 8.00 p. m. And arrested Khushi Muhammad, Umer Din and Fateh Muhammad, co-accused and Ajeet Singh, appellant, from the house. On their personal search, a piece of silver weighing 890.5 grams was recovered from the person of Khushi Muhammad, a piece of silver weighing 881.7 grams from the person of Umer Din and a piece of silver weighing 752.1 grams from the person of Fateh Muhammad. On the personal search of appellant Ajeet Singh, two pieces of silver weighing 669 grams and 710.7 grams respectively, two bottles of Indian liquor and a Rs. 10 Indian currency note, were recovered.

3. On 3-2-1981 when all the four accused including the appellant were produced for the first time before the trial Court, the appellant, before anything was done, prayed that his statement be recorded which was done. In that statement, he confessed the offence, undertook not to repeat the same and prayed that his case be decided that very day. In view of this statement, the trial Court framed the charge in the case, read it over to him and upon his plea of guilty, passed the impugned judgment, the same day.

4. It is to be noted that the case .Proceeded thereafter against the three co accused and they were convicted on 7-5-1981 under clause (89) of section 156(1) read with section 178 of the Customs Act and sentenced to rigorous imprisonment for one year each in addition to a fine of Rs. 1,000 each.

The distinction, according to the trial Court, was that "the smuggler in this case seems to be Ajeet Singh " while the co-accused were guilty only of having been found in possession of the smuggled silver.

5. Normally, in an appeal under section 412, Cr. P. C., from con--viction upon the plea of guilty, only the extent or legality of the sentence can be assailed and not the conviction itself. Nevertheless the convict is not debarred from questioning the prosecution itself if the fact alleged against him do not make out a criminal case or the trial Court had no jurisdiction or his prosecution was otherwise unwarranted. Thus, a convict under section 183, P. P. C,, is not debarred from challenging his conviction on the ground that the complaint had been initiated by a Police Officer for violation of an order under section 144, Cr. P. C., passed by a District Magistrate. Similarly, he can challenge the trial on the ground that the Magistrate who had tried him had no jurisdiction. Moreover, the plea s of guilty of an accused will not warrant that the trial Court apply the law incorrectly. Even if the accused has confessed to the offence described in the charge, the Court has yet to examine and hold whether upon the fact admitted an offence is made out in law notwithstanding the plea of guilty.

6. The objection taken is that the trial had not yet commenced on 3-2-1981 and as such neither the charge could have been read over to the appellant under section 265-D nor his plea recorded under section 265-E, Cr, P. C., on that date that the provision of section 265-C, Cr. P. C., requiring the supply of copies of the documents to the accused is mandatory and its disregard fatal to the trial and that the learned Judge bad not applied his mind as to the applicability of clause (8) of section 156(1) of the Customs Act.

7. In all cases instituted upon a Police report, the Court is required by section 265-C to supply free of cost to the accused copies of the F.

1. R, the Police report, the statements of the witnesses recorded under sections 161 and 164, Cr. P. C., and the inspection note recorded by the Investigation Officer. These copies are to be supplied "not later than seven days before the commencement of the trial". These words show that the trial in law does not commence until after the expiry of seven days from the supply of the copies. It is when the trial commences, as above, that the Court, if it is of the opinion after perusing the police report and other materials that there is ground to proceed with the trial, will frame charge against the accused under section 265-D and read and explain the charge to the accused and record his plea. If he pleads guilty to the charge, the Court "may in its discretion convict him thereon".

8. The provision of section 265-C which requires that copies of the documents specified therein `shall be supplied' is, therefore, an essential stage preparatory to the trial. The insertion of this provision in the wake of the abolition of the commitment proceedings is obviously meant to enable the accused to know and understand the prosecution case against him so that if the charge be framed against him he can take a plea upon full knowledge and understanding of the prosecution case. The interval of seven days is also significant because it is meant to give the accused sufficient time to study the allegations against him and to prepare his plea in defence. The provision is not only mandatory but, as is obvious. Its non-compliance must tend to cause prejudice to the accused. Even otherwise, prejudice to the accused is to be inferred from every breach of a Provision of the law meant for the protection or benefit of the accused. The position would not change even if the accused had himself consented to such breach.

9. The Code of Criminal Procedure like other procedural laws is meant to further the ends of justice and for that purpose contains provisions essential for securing justice. Some of the provisions are of vital nature and cannot be disregarded except at the risk of invalidating the trial while the others are not so vital and their breach may amount to an irregularity which can be taken as cured. The nature of the provision of section 265-C makes it vital and in the absence of its compliance the trial itself cannot commence. A breach of this provision cannot, therefore, be taken as cured in spite of the consent of the accused. In V. M. Abdul Rahman v. King-Emperor (1) their Lordships of the Judicial Committee expressed that `they with it to be understood that no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the Advocate of the accused'. Following from this, it was held in Emperor v. Mustaffa Joosab (2) that `where the procedure adopted is illegal, consent or waiver on the part of accus--ed cannot cure the defect under section 537 even though no prejudice is caused to him. In Kottammal In re: Kolathingal Ummar Hajee (3), where, in the de novo trial held on account of the Trying Magistrate having been succeeded by another, the depositions of witnesses in the previous trial were exhibited without the witnesses being examined afresh, it was held that 'an irregularity such as the above cannot be cured by the consent of the accused'. In Mokshed Sheikh v. Emperor (4) where evidence had been admitted under section 33, Evidence Act, without the Judge having first satisfied himself as to the admissibility of the evidence and no objection had been taken by the accused, the trial was, nonetheless, held to have been vitiated.

(1) AIR 1927 P C 44(2) AIR 1947 Bom. 325

(3) (1922) 23 Cr. L J 748(4) (1931) 32 Cr. L J 233

10. On these principles, the omission to comply with the provision of section 265-C must be treated to have vitiated the conviction. The contention that without complying with the provision of section 265-C, the charge itself could not have been framed and the trial commenced, is also not without force. As no copies had been supplied under section 265-C, the trial could not be said to have commenced. That being so, the stage had not reached for the framing of the charge. I am also not satisfied that the provision of section 265-E had been complied with in spirit. The section requires that the charge shall be read and explained to the accused. The appellant was a foreigner and without assistance of a counsel. He did not know the implications of his plea. It was not explained to him that the plea of guilty would invite the prescribed minimum punishment of imprison--ment for 5 years and lashes. The trial Court had also to satisfy itself that the ingredients of clause (8) of section 156(1) of the Customs Act had been established on the basis of the allegations particularly when the allegations were only of recovery from the possession of the appellant.

11. For all these reasons, I accept the appeal, set aside the appellant's conviction and sentence and remand the matter for a retrial, according to law. m. Y. m.Appeal dismissed.