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BOMBAY HIGH COURT
Vishnu Sahai, J.
R.N. Kakkar, Asst. Director; DRI - Petitioner
versus
Hanif Gafoor Naviwala & Ors. - Respondents
Criminal Writ Petition No. 842 of 1995
Decided on 15-9-1995
Counsel for the parties:
For the Petitioner: R.M. Agarwal.
For the Respondents: Shirish Gupte with K.Z. Nagamia, R.H. Ponda and D.A. Nalawade.
IMPORTANT POINT
Object of exercise of power u/s. 311 Cr. P.C, is not to enable the prosecution to adduce evidence which would plug-in the holes in its case.
Headnote:Criminal Procedure Code, 1973,- Section 311-Power to summon any person as a witness, examine any person in attendance or to recall & re-examine any person - Power is not an unqualified & unfettered - Court has to, see whether such exercise is essential to just decision of case Object of exercise of such power is not to enable prosecution to adduce evidence which would plug-in the holes in it case Respondents facing trial under NDPS Act & case reached stage of final arguments - Application for additional evidence regarding gist of information in DRI search warrants, photographs etc - Trial Court rightly had it would mean affording an opportunity to prosecution to fill in lacunae. (Paras 13 to 16)
Result: Petition dismissed.
JUDGMENT (ORAL)
Vishnu Sahai, J. - This petition under Article 227 of the Constitution of India read with sections 391,400 and 482 of the Criminal Procedure Code has been preferred by he Petitioner for, quashing orders dated 1-8-1995 (Exhibit 72) and
2-8-1995 (Exhibit 73) passed by the Special Judge, under the N.D.P.S. Act, for Greater Bombay in N.D.P.S. Special Case No. 1249 of 1988.
2. A narration of the facts in brief would be necessary for the disposal of this petition. The Respondent Nos. 1 to 3 are being prosecuted for offences punishable under the N.D.P.S. Act and section 135 of the Customs Act. A seizure of heroin, which took place on 21-1-1988 and 231-1988, which is said to have been imported into India by the respondents Nos. 1 to 3 along with an associate of theirs who is absconding, is said to have given rise to their prosecution. The following facts arc not disputed by the counsel for the parties:-
(a) trial in the instant case has been expedited by orders of this Court; and
(b) applications on which impugned orders were passed were made by the directorate of Revenue Intelligence in which the petitioner is employed, after the closure of evidence of parties, recording of statement of accused persons (respondent Nos. 1 to 3) under section 313 of Criminal Procedure Code, conclusion of arguments of counsel for the parties and fixation 17 -8-1995 as date for judgment by the Court.
4. On 1-8-1995, an application was moved by the Directorate bf Revenue Intelligence in the Court of the Special Judge, on which the impugned orders contained in Exhibit 72 were passed. It was prayed therein that the prosecution could not tender the seized drug samples and the original case papers as the same were not traceable till 28-7 -1995 and today, it is learnt that they have been traced out hence:
"the prosecution may be allowed to under the said original case records, the samples of the contraband and lead the additional evidence in the case,"
The defence opposed the grant of this application on the ground that it was made far too belatedly, prejudice would be caused to the accused as their defence has already been disclosed and that the object in making it was to rill up the lacunae in the prosecution case and this was not permitted by the law as it would amount to re-trial of the accused under the garb of adducing additional evidence. The defence also contended that the grant of this application would unnecessarily prolong the trial which had been expedited by this Court.
5. After hearing the counsel for the parties, the learned Special Judge granted prayer of the prosecution for recalling:
"P.W. 3 Mr. Gayabax M. Yadav - the then Asstt. Director of the DRI and the P.W.5 Mr. Suresh K. Pradhan, the then Sr. Intelligence Officer of the DRI for the purpose of tendering the contraband samples in this case in the Court."
It however, related the prayer for tendering original records:
"as the carbon copies and the xerox copies of the original case papers have already been exhibited in the case, in view of grant of permission the prosecution to adduce the secondary evidence."
The learned Special Judge also directed that:
"the case be kept on the date of 2-8-1995 for recalling the P.W. 3 Mr. Gayabax M. Yadav then Astt. Director of the D.R.I. and the P.W. 5 Mr. Suresh K. Pradhan the then Sr. Intelligence Officer of the D.R.I. for tendering the samples of the contraband in the Court."
On 2-8-1995, the prosecution recalled P.W. 3 Mr. Gayabax M. Yadav and P.W. 5 Suresh Kasinath Pradhan and through their evidence, the samples of the contraband traced out by the prosecution were tendered in this case in the Court.
6. On 2-8-1995, the Directorate of Revenue Intelligence moved another application, on which the impugned orders in Exhibit 73 were passed, for:
"tendering the following original records and additional evidence based on it.
1. Original documents annexed with the affidavit dated 15-6-1995 filed by Mr. Atul Dikshit, the A.D. D.R.I. (Narcotic
