M.L. Jain, J.
(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 defense, 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 und
(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, thereforee, 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. , 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 defense 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.
(4) The learned counsel next submitted that the courts below erred in disbelieving the defense version that heroin was recovered from one of the rooms of Maurya Hotel in which one American by name Tool was living. He and his sister had gone to meet him. The petitioner had stated that he was arrested from the room when Tool had gone out of the room for a few minutes. This defense received support from Taunluaia (Public Witness 4) who deposed that the Cbi officials had told him that the petitioner was arrested from one of the rooms of the Maurya Hotel.
(5) I have gone through the prosecution evidence which has beyond doubt established that the petitioner and his sister were arrested outsize thegate of the Maurya Hotel. As a matter of fact, the Cbi had acted up on the previous information and has posted themselves in the premises and waited for the arrival of the petitioner and his sister.
(6) Lastly, is was urged that the petitioner should be granted probation. The courts below refused to grant probation because consumption of heroin has a very adverse effect upon those who consume it and upon their families. It, thereforee, not only disqualified the petitioner for grant of probation but a maximum sentence deserved to be awarded. Mr. Khalidi on behalf of the Cbi submitted that 500 gms. of heroin is worth several lakhs in a foreign market and the persons indulging in smuggling should be severely dealt with and such persons should not be released on probation.
(7) It is urged that under section 361 Criminal Procedure Code . probation under section 360 Criminal Procedure Code . can be refused only for special reasons to be recorder The reasons recorded by the court below are not special reasons. My atteation was drawn to Bishnu Deo Shaw v. State of West of Bengal, : 1979CriLJ841 .
'SECTION 361 thus casts a duty upon the Court to 'apply the provisions of s-360 wherever it is possible to do so and, to state 'special reasons' if it does not do so. 1n the context of Section 360 the 'special reasons' contemplated by s. 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.'
(8) Considering the daring with which such an amount of heroin which could fetch a large sum of money was being smuggled through some foreign buyer in a 5-Star Hotel with the help of a woman shows inevitably that the case is beyond redemption. I am inclined to agree with Mr. Khalidi that this is a case in which probation should not be granted. The large-scale smuggling of heroin is not only an offence against the Dangerous Drugs Act, but is also a social crime and if such persons are allowed to be at large on probation the smuggling of heroin cannot be effectively prevented. It will be seen that upon the same facts the petitioner's sister was awarded a sentence of one year. I think reduced sentence should be imposed upon the petitioner also. I, thereforee, partly accept this petition and while upholding the conviction direct that the sentence of the petitioner be reduced to two years, but the sentence of fine and imprisonment in default thereof shall be maintained.
(9) The petition shall stand disposed of accordingly.
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