INSPECTOR OF CUSTOMS, AKHNOOR J & KversusYASH PAL AND ANR.

                          [2009] 4 S.C.R. 118


A         INSPECTOR OF CUSTOMS, AKHNOOR J & K                         •
                              V.
                    YASH PAL AND ANR.
               Criminal Appeal No. 447 of 2009
                          MARCH 6, 2009
8
          . (DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
                  MUKUNDAKAM SHARMA, JJ.)
         NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985:

c       Sections 8, 21, 41(2)- Heroin - Smuggling of- Seized
  by Customs Department - Confession before Customs
  authorities by accused - Trial Court convicting accused - High          ...
  Court acquitting them - Correctness of - Held: The alleged
  confession before Customs authorities not brought to the
  notice of the accused - No infirmity in the order of the High
D
  Court to warrant interference - Customs Act, 1962, S.110.           c

         CODE OF CRIMINAL PROCEDURE, 1973:
          Section 313(1)(b) - The word "shall" to be interpreted as
    obligatory on the court and should be complied with when it is
E
    for the benefit of the accused - Words and Phrases.
        The respondents were found guilty of offences
    punishable under Sections 8 and 21 of the Narcotic Drugs
    and Psychotropic Substances Act, 1985, by the trial court.
                                                                          "'
F   However, the High Court acquitted them. Hence the
    appeal.
         Dismissing the appeal, the Court
       HELD: 1. It is well settled that the provision viz. s.313
G Cr.P.C. is mainly intended to benefit the accused and as
  its corollary to benefit the court in reaching the final
  conclusion. At the same time it should be borne in mind
  that the provision is not intended to nail him to any
  position, but to comply with the most salutary principle
H                                118
           INSPECTOR OF CUSTOMS, AKHNOOR J & KV.                119
                     YASH PALANDANR.

    of natural justice enshrined in the maxim audi alteram A
    partem. The word "may" in clause (a) of sub-section (1) in
    Section 313 of the Code indicates, without any doubt, that
    even if the court does not put any question under that
    clause the accused cannot raise any grievance for it. But
    if the court fails to put the needed question under clause B
    (b) of the sub-section it would resu1t in a handicap to the
    accused and he can legitimately claim that no evidence,
    without affording him the opportunity to explain, can be
    used against him. It is now well settled that a circumstance
    about which the accused was not asked to explain cannot            c
    be used against him.[Paras 21, 22] [130-G-H; 131-A-B]
          Jai Dev v. State of Punjab AIR 1963 SC 612 - relied on.
            Hate Singh Bhagat Singh v. State of Madhya Bharat AIR
      1953 SC 468; Bibhuti Bhusan Das Gupta & Anr. Vs. State of
                                                                   0
    . West Bengal AIR (1969) SC 381 =(1969) 2 SCR 1041; Usha
      K. Pillai v. K. Srinivas & Ors. 1993 (3) SCC 208 and Shivaji
      Sahabrao Bobade v. State of Maharashtra 1973 (2) SCC 793
      - referred to.

           2. But the situation to be considered now is whether,       E
     with the revolutionary change in technology of
     communication and transmission and the marked
     improvement in facilities for legal aid in the country, is it
     necessar:y that in all cases the accused must answer by
     personally remaining present in court. It is clarified that       F
     this is the requirement and would be the general rule.
     However, if remaining present involves undue hardship
     and large expense, could the court not aUeviate the
     difficulties. If the court holds the view that the situation in
     which he made such a plea is genuine, should the court            G
     say that he has no escape but he must undergo all the
     tribulations and hardships and answer such questions
     personally presenting himself in court~ If there are other
1    accused in the same case, and the court has already
     completed their questioning, should they too wait for long·       H
    120      SUPREME COURT REPORTS                [2009] 4 S. C.R.

                                                                     ,
A without their case reaching finality, or without registering
  further progress of their trial until their co-accused is able
  to attend the court personally and answer the court
  questions? Why should a criminal court be rendered
  helpless in such a situation?[Para 23] [131-C-F]
B
        3. The one category of offences which is specifically
  exempted from the rigour of Section 313(1 )(b) of the Code
  is "summons cases". It must be remembered that every
  case in which the offence triable is punishable with
  imprisonment for a term not exceeding two years is a
C "summons case". Thus, all other offences generally
  belong to a different category altogether among which
  are included offences punishable with varying sentences
  from imprisonment for three years up to imprisonment for
  life and even right up to death penalty. Hence there are
D several offences in that category which are far less
  serious in gravity compared with grave and very grave
  offences. Even in cases involving less serious offences,
  can not the court extend a helping hand to an accused
  who is placed in a predicament deserving such a help?
E [Para 24] [131-F-H; 132-A]
        4.1 Section 243(1) of the Code enables the accused,
  who is involved in the trial of warrant case instituted on
  police report, to put in any written statement. When any
F such statement is filed the court is obliged to make it part
  of the record of the case. Even if such case is not instituted
  on police report the accused has the same right (vide
  Section 247). Even the accused involved in offences
  exclusively triable by the Court of Session can also
G exercise such a right to put in written statements (Section
  233(2) of the Code). It is common knowledge that most of
  such written statements, if not all, are prepared by the           >
  counsel of the accused. If such written statements can
  be treated as statements directly emanating from the
H accused, hook, line and sinker, why not the answers given
      INSPECTOR OF CUSTOMS, AKHNOOR J & KV.            121
                 YASH PALANDANR.

by him, in special contingencies, be afforded the same A
worth. [Para 25] [131-G-H; 132-A-B]
     4.2 A pragmatic and humanistic approach is
warranted in regard to such special exigencies. The word
"shall" in clause (b) to Section 313(1) of the Code is to be
interpreted as obligatory on the court and it should be 8
complied with when it is for the benefit of the accused.
But if it works to his great prejudice and disadvantage
the court should, in appropriate cases, e.g., if the accused
satisfies the court that he is unable to reach the venue of
the court, except by bearing huge expenditure or that he C
is unable to travel the long journey due to physical
incapacity or some such other hardship, relieve him of
such hardship and at the same time adopt a measure to
comply with the requirements in Section 313 of the Code
in a substantial manner. [Para 26] [132-E-G]                 D
     Basav Raj R Patil v. State of Karnataka 2000 (8) SCC
740 and Keya Mukherjee v. Magma Leasing Ltd. and Ors.
(2008) 8 sec 447 - relied on.
     5. In the instant case there was no reference to any    E
of the incriminating materials. If the foundation of the
prosecution case was the alleged confession before the
Customs Authorities, that material was not brought to the
notice of the accused persons. Thus, there is no infirmity
in the impugned judgment to warrant interference. [Para      F
28] [133-A-B]
                  Case Law Reference
    AIR 1953 SC 468         referred to      Para 12
     AIR (1969) SC 381 =    referred to      Para 14         G
     (1969) 2 SCR 1041
     1993 (3) sec 208       referred to      Para 17
     1973 (2) sec 793       referred to      Para 18
                                                             H
    122       SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A         AIR 1963 SC 612           relied on          Para 20
          2000 (8) sec 140          relied on          Para 27
          (2008) 8 sec 447          relied on          Para 27
B        CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 447 of 2009

         From the Judgement and Order dated 11.10.2002 of the
    High Court of Jam mu and Kashmir at Jam mu in Criminal Appeal
    No. 17 of 1999.
c        K. Radhakrishnan, Sanjee1i K. Bhardwaj, H.R. Rao, Anil
    Katiyar, B. Krishna Prasad, for the Appellant.
          S.K. Bhattacharya, for the Respondent.
          The Judgement of the Court was delivered by
D
          DR. ARIJIT PASAYAT, J.
          1. Leave granted.
          2. Challenge in this appeal is to the judgment of a Division
E   Bench of the Jam mu and Kashmir High Court directing acquittal
    of the respondents who were found guilty of offences punishable
    under Sections 8 and 21 of the Narcotic Drugs and Psychotropic
    Substances Act, 1985 (in short the 'Act').

          3. Background facts in a nutshell are as follows:
F        On 1•t July, 1995 at about 4.15 a.m. Army Patrolling Party,
  on the other side of Village, Hamirpur Sidhar near DCB end
  point, noticed suspicious movement of some infiltrators who on
  being challenged abandoned some suspicious materials and
  escaped under the cover of darkness. On receipt of this
G information, Customs Staff camping at the other side of the
  village rushed to the spot. Both the army authorities and Custom
  staff, found some suspicious materials on spot in two salwars
  and a plastic bag left abandoned in the field near DCB end
  point. They called two panchs from the area and the three
H packages found lying abandoned in the field were opened in
      INSPECTOR QF CUSTOMS, AKHNOOR J & KV.              123
        YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

their presence from which 56 packets of light brown powder, A
each weighing one kg. were recovered and seized by the
Custom staff under Section 110 of the Customs Act, 1962 (in
short 'Customs Act'). Apart from that, one pair of Chappa! and
two pairs of shoes total three footwear were also recovered
from the spot. Recovered material appeared to be some          s
Narcotic Drug in packets and in yellow brownish paper kept in
polythene bags wrapped in cotton cloth bearing stamp marking
in Urdu Khadi No.1, No.858 and 223. It was subjected to drug
test by the Custom Staff with U.N. Drug test kit and it was
confirmed that the material was contraband Morphine Heroin     c
or its derivative. Recovery-cum-seizure memo of the Heroin was
prepared and panchnama was drawn on spot. The samples
were taken out of the seized material and sent for chemical
analysis to FSL, Jammu who in its report revealed that Diactyl
Morphine 'Heroin was found present in the samples taken out D
of the recovered light brown powder. The identity of infiltrators
was established through the secret information report recorded
prior to the seizure. It was disclosed that the names of two
suspects were Hakikat Singh and Yashpal. Recovery of three
packages and three pairs of foot wearings were made from the E
spot, The recovery of three packages and three pairs of foot
wearing indicated that third person was also accompanying the
two infiltrators.
      Yash Pal was summoned by Superintendent, Customs
under Section 108 of the Customs Act. He appeared before F
him and made confessional statement on 27.7.1995 involving
himself in smuggling of Heroin and was thereupon arrested. In
his voluntary statement of confession, he disclosed the names
of two accomplices, namely, Hakikat Singh and Paramjeet
Singh and narrated the sequence of events of fetching fifty six G
Kg. Heroin at lndo Pak border and its carriage upto village
Hamirpur Sidhar and on its detection by the Army Patrol, it led
to his escape from the-scene after abandoning the material and
three pairs of foot wear: He also confessed that he was being ·
paid Ra.2000/- by Hakikat Singh @ Kiti and Paramjit Singh H
    124       SUPREME COURT REPORTS                  [2009] 4 S. C.R.


A   alias Pamma for carriage of contraband articles. Similarly, on
    23ro August, 1995 accused Hakikat Singh also came to be
    intercepted by the Custom staff, Jammu and he made voluntary
    statement to the same effect. He confessed that he was being
    paid Rs.10,000/- for carriage of the material. Paramjit Singh
s   did not appear before the Custom authorities. Evidence was
    collected and complaint was presented before Sessions Judge
    (Special Judge) by the Inspector of Customs. Accused pleaded
    not guilty to the charge and were put to trial. The third accused
    was proceeded against separately. The learned trial Court after
c   appreciating the evidence led by the parties came to the
    conclusion that accused have committed the offences
    punishable under Sections 8 and 21 of the Act and recorded
    conviction and sentence.
       4. The trial Court as noted above found the accused
D respondents guilty and recorded the conviction and imposed
  sentence.
          5. In appeal two stands were taken. First related to non-
    compliance of Section 41 (2) of the Act and the other related to
    not putting the alleged incriminating materials to the accused
E   while the statement was recorded under Section 342 of the old
    Code of Criminal Procedure (in short 'the Old Code') or Section
    313 of the new Code of Criminal Procedure (in short 'the New
    Code'). The High Court found substance in the second plea
    and directed acquittal.
F
        6. In support of the appeal learned counsel for the appellant
  submitted that though minor errors and omissions in bringing to
  the notice of the accused the incriminating materials are not
  vulnerable, in this case a very specific plea relating to the
G foundation of the prosecution case and the evidence on which
  the reliance was placed was put to the accused. That being so,
  the High Court is in error by directing acquittal.
          7. Stand of the learned counsel for the appellant further
    that the approach was hyper-technical and was not in line with
H   the true intent of Section 342 or Section 313 of the Code.
           INSPECTOR OF CUSTOMS, AKHNOOR J & KV.                     125
             YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

         8. Learned counsel for the respondents on the other hand           A
     supported the judgment.

          9. It is to be noted that the High Court did not accept the
     stand relating to non compliance of Section 41 (2) of the Act. It
     only interfered on the ground that the relevant incriminatory
     materials were not put to the accused when they were being             8
     examined.

          10. Section 313 Cr:P.C. reads as follows:

          "313. Power to examine the accused.-(1) In every inquiry
          or trial, for the purpose of enabling the accused personally      c
          to explain any circumstances appearing in the evidence
          against him, the court-

          (a) may at any stage, without previously warning the
          accused, put such questions to him as the court considers
                                                                            D
          necessary;
~




          (b) shall, after the witnesses for the prosecution have been
          examined and before he is called on for his defence,
          question him generally on the case:
                                                                            E
          Provided that in a summons case, where the court has
          dispensed with the personal attendance of the accused,
          it may also dispense with his examination under clause
          (b).
          (2) No oath shall be administered to the accused when he          F
          is examined under sub-section (1 ).

          (3) The accused shall not render himself liable to
          punishment by refusing to answer such questions, or by
          giving false answers to them.
                                                                            G
          (4) The answers given by the accused may be taken into
·-        consideration in such inquiry or trial, and 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."
                                                                            H
    126        SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A        11. The forerunner of the said provision in the Old Code
    was Section 342 therein. It was worded thus:

          "342. (1) For the purpose o.f enabling the accused to
          explain any circumstances appearing in the evidence
          against him, the court may, at any stage of any inquiry or
B         trial, without previously warning the accused, put such
          questions to him as the court considers necessary, and
          shall, for the purpose aforesaid, question him generally on
          the case after the witnesses for the prosecution have been
          examined and before he is called on for his defence.
c
          (2) The accused shall not render himself liable to
          punishment by refusing to answer such questions, or by
          giving false answers to them; but the court and the jury Cf
          any) may draw such inference from such refusal or answers
          as it thinks just.
D
          (3) The answers given by the accused may be taken into
          consideration in such inquiry or trial, and 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
E         has committed.
          (4) No oath shall be administered to the accused when he
          is examined under sub-section (1)."
         12. Dealing with the position as the section remained in
F   the original form under the Old Code, a three-Judge Bench of
    this Court in Hate Singh Bhagat Singh v. State of Madhya
    Bharat (AIR 1953 SC 468) that:
          "The statements of the accused recorded by the
          Committing Magistrate and the Sessions Judge are
G         intended in India to take the place of what in England and
          in America he would be free to state in his own way in the
          witness-box. Tiley have to be received in evidence and
          treated as evidence and be duly considered at the trial."

          13. Parliament. thereafter, introduced Section 342-A in the
H
          INSPECTOR OF CUSTOMS, AKHNOOR J & K V.                127
            YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

    Old Code (which corresponds to Section 315 of the present A
    Code) by which permission is given to an accused to offer
    himself to be examined as a witness if he so chose.

         14. In Bibhuti Bhusan Das Gupta's case (supra) another
    three-Judge Bench dealing with the combined operation of
    Sections 342 and 342-A of the Old Code made the following          B
    observations:

         "Under Section 342-A only the accused can give evidence
         in person and his pleader's evidence cannot be treated
         as his. The answers of the accused under Section 342 is       c
         intended to be a substitute for the evidence which he can
         give as a witness under Section 342-A. The privilege and
         the duty of answering questions under Section 342 cannot
         be delegated to a pleader. No doubt the form of the
         summons show that the pleader may answer the charges
                                                                       D
         against the accused, but in so answering the charges, he
         cannot do what only the accused can do personally. The
         pleader may be permitted to represent the accused while
         the prosecution evidence is being taken. But at the close
         of the prosecution evidence the accused must be
         questioned and his pleader cannot be examined in his          E
         place."

          15. The Law Commission in its 41 st Report considered
    the aforesaid decisions and also various other points of view
    highlighted by legal men and then made the report after reaching   F
    the conclusion that:
         (1) in summons cases where the personal attendance of
         the accused has been dispensed with, either under Section
         205 or under Section 540-A, the court should have a power
         to dispense with his examination; and                     G
•        (i1) in other cases, even where his personal attendance
         has been dispensed with, the accused should be examined
         personally.
         16. The said recommendation has been followed up by           H
     128        SUPREME COURT REPORTS                     (2009] 4 S.C.R.


A Parliament and Section 313 of the Code, as is presently worded,
  is the result of it. It would appear prima facie that the court has
  discretion to dispense with the physical presence of an accused
  during such questioning only in summons cases and in all other
  cases it is incumbent on the court to question the accused
B personally after closing prosecution evidence. Nonetheless, the
  Law Commission was conscious that the rule may have to be
  relaxed eventually, particularly when there is improvement in
  literacy and legal-aid facilities in the country. This thinking can
  be discerned from the following suggestion made by the Law
c Commission in the same report:
           "We have, after considering the various aspects of the
           matter as summarised above, come to the conclusion
           that Section 342 should not be deleted. In our opinion, the
           stage has not yet come for it being removed from the
D          statute-book. With further increase in literacy and with better
           facilities for legal aid, it may be possible to take that step
           in the future."
        17. The position has to be considered in the present set-
  up, particularly after the lapse of more than a quarter of a century
E through which period revolutionary changes in the technology
  of communication and transmission have taken place, thanks
  to the advent of computerisation. There is marked improvement
  in the facilities for legal aid in the country during the preceding
  twenty-five years. Hence a fresh look can be made now. We
F are mindful of the fact that a two-Judge Bench in Usha K. Pillai
  (1993 (3) sec 208) has found that the examination of an accused
  personally can be dispensed with only in summons case. Their
  Lordships were considering a case where the offence involved
  was Section 363 IPC. The two-Judge Bench held thus: (SCC
G pp.212-13, para 4)
           "A warrant casP is defined as one relating to an offence
           punishable with death, imprisonment for life or
           imprisonment for a term exceeding two years. Since an
           offence under Section 363 IPC is punishable with
H
      INSPECTOR OF CUSTOMS, AKHNOOR J & KV.                  129
        YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

     imprisonment for a term exceeding two years it is a warrant   A
     case and not a summons case. Therefore, even in cases
     where the court has dispensed with the personal
     attendance of the accused under Section 205(1) orSection
     317 of the Code, the court cannot dispense with the
     examination of the accused under clause (b) of Section        B
     313 of the Code because such examination is mandatory."

      18. Contextually we cannot bypass the decision of a three-
Judge Bench of this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (1973 (2) SCC 793) as the Bench has widened
the sweep of the provision concerning examination of the           C
accused after closing prosecution evidence. Learned Judges
in that case were considering the fallout of omission to put to
the accused a question on a vital circumstance appearing
against him in the prosecution evidence. The three-Judge Bench
made the following observations therein: (SCC p. 806, para         D
16)
     "It is trite law, nevertheless fundamental, that the prisoner's
     attention should be drawn to every inculpatory material so
     as to enable him to explain it. This is the basic fairness of
     a criminal trial and failures in this area may gravely imperil E
     the validity of the trial itself, if consequential miscarriage
     of justice has flowed. However, where such an omission
     has occurred it does not ipso facto vitiate the proceedings
     and prejudice occasioned by such defect must be
     established by the accused. In the event of evidentiary F
     material not being put to the accused, the court must
     ordinarily eschew such material from consideration. It is
     also open to the appellate court to call upon the counsel
     for the accused to show what explanation the accused
     has as regards the circumstances established against G
     him but not put to him and if the accused is unable to offer
     the appellate court any plausible or reasonable explanation
     of such circumstances, the court may assume that no
     acceptable answer exists and that even if the accused
     had been questioned at the proper time in the trial court H
    130       SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A         he would not have been able to furnish any good ground
          to get out of the circumstances on which the trial court had
          relied for its conviction."
         19. The above approach shows that some dilution of the
  rigour of the provision can be made even in the light of a
8 contention raised by the accused that non-questioning him on a
  vital circumstance by the trial court has caused prejudice to him.
  The explanation offered by the counsel of the accused at the
  appellate stage was held to be a sufficient substitute for the
  answers given by the accused himself.                              •
c
        20. What is the object of examination of an accused under
  Section 313 of the Code? The section itself declares the object
  in explicit language that it is "for the purpose of enabling the
  accused personally to explain any circumstances appearing in
  the evidence against him". In Jai Dev v. State of Punjab
0
  (AIR1963 SC 612) Gajendragadkar, J. (as he then was)
  speaking for a three-Judge Bench has focussed on the ultimate           "
  test in determining whether the provision has been fairly
  complied with. He observed thus:
E         "The ultimate test in determining whether or not the accused
          has been fairly examined under Section 342 would be to
          inquire whether, having regard to all the questions put to
          him, he did get an opportunity to say what he wanted to
          say in respect of prosecution case against him. If it appears   •
F         that the examination of the accused person was defective
          and thereby a prejudice has been caused to him, that
          would no doubt be a serious infirmity."
       21. Thus it is well settled that the provision is mainly
  intended to benefit the accused and as its corollary to benefit
G the court in reaching the final conclusion.
        22. At the same time it should be borne in mind that the
  provision is not intended to nail him to any position, but to comply
  with the most salutary principle of natural justice enshrined in
H the maxim audi alteram partem. The word "may" in clause (a)
      INSPECTOR OF CUSTOMS, AKHNOOR J & KV.                   131
        YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

of sub-section (1) in Section 313 of the Code indicates, without A
any doubt, that even if the court does not put any question under
that clause the accused cannot raise any grievance for it. But if
the court fails to put the needed question under clause (b) of the
sub-section it would result in a handicap to the accused and he
can legitimately claim that no evidence, without affording him B
the opportunity to explain, can be used against him. It is now
well settled that a circumstance about which the accused was
not asked to explain cannot be used against him.

       23. But the situation to be considered now is whether, with
the revolutionary change in technology of communication and C
transmission and the marked improvement in facilities for legal
aid in the country, is it necessary that in all cases the accused
must answer by personally remaining present in court. We clarify
that this is the requirement and would be the general rule.
However, if remaining present involves undue hardship and large D
expense, could the court not alleviate the difficulties. If the court
holds the view that the situation in which he made such a plea is
genuine, should the court say that he has no escape but he must
undergo all the tribulations and hardships and answer such
questions personally presenting himself in court. If there are other E
accused in the same case, and the court has already completed
their questioning, should they too wait for long without their case
reaching finality, or without registering further progress of their
trial until their co-accused is able to attend the court personally
and answer the court questions? Why should a criminal court F
be rendered helpless in such a situation?
     24. The one category of offences which is specifically
exempted from the rigour of Section 313(1)(b) of the Code is
"summons cases". It must be remembered that every case in G
which the offence triable is punishable with imprisonment for a
term not exceeding two years is a "summons case". Thus, all
other offences generally belong to a different category altogether
among which are included offences punishable with varying
sentences from imprisonment for three years up to imprisonment H
    132       SUPREME COURT REPORTS                    (2009] 4 S.C.R.


A for life and even right up to death penalty. Hence there are several
  offences in that category which are far less serious in gravity
  compared with grave and very grave offences. Even in cases
  involving less serious offences, can not the court extend a
  helping hand to an accused who is placed in a predicament
B deserving such a help?
        25. Section 243(1) of the Code enables the accused, who
  is involved in the trial of warrant case instituted on police report,
  to put in any written statement. When any such statement is filed
  the court is obliged to make it part of the record of the case.
C Even if such case is not instituted on police report the accused
  has the same right (vide Section 247). Even the accused
  involved in offences exclusively triable by the Court of Session
  can also exercise such a right to put in written statements
  (Section 233(2) of the Code). It is common knowledge that most
D of such written statements, if not all, are prepared by the counsel
  of the accused. If such written statements can be treated as
  statements directly emanating from the accused, hook, line and
  sinker, why not the answers given by him in the manner set out
  hereinafter, in special contingencies, be afforded the same
E worth.
         26. We think that a pragmatic and humanistic approach is
  warranted in regard to such special exigencies. The word "shall"
  in clause (b) to Section 313(1) of the Code is to be interpreted
  as obligatory on the court and it should be complied with when
F it is for the benefit of the accused. But if it works to his great
  prejudice and disadvantage the court should, in appropriate
  cases, e.g., if the accused satisfies the court that he is unable
  to reach the venue of the court, except by bearing huge
  expenditure or that he is unable to travel the long journey due to
G physical incapacity or some such other hardship, relieve him of
  such hardship and at the same time adopt a measure to comply
  with the requirements in Section 313 of the Code in a substantial
  manner. How could this be achieved?                                     lil
          27. The above position was indicated in Basav Raj R Patil
H
            INSPECTOR OF CUSTOMS, AKHNOOR J & KV.                  133
              YASH PAL AND ANR. [DR. ARIJIT PASAYAT, J.]

,·   v. State of Karnataka (2000 (8) SCC 740) and Keya Mukherjee          A
     v. Magma Leasing Ltd. and Ors. (2008) 8 SCC 44 7.
           28. It is to be noted that in the instant case there was no
     reference to any of the incriminating materials. If the foundation
     of the prosecution case was the alleged confession before the
     Customs Authorities, that material was not brought to the notice     8
     of the accused persons.

          29. Above being the position, there is no infirmity in the
 ~   impugned judgment to warrant interference. The appeal is
     dismissed.

     G.N.                                         Appeal dismissed.