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1999 Supreme(Guj) 390
Gujarat High Court
Judgename :A.L.DAVE
GOMARAM SOMARAM JAT - Appellant
Versus
U.H.PATEL - Respondent
CRIMINAL REVISION APPLICATION 399 of 1999
Decided On : 08/12/1999
Headnote:Criminal Procedure Code, 1973 — Secs. 401 & 397(2) — Revision against order rejecting application objecting to taking statement recorded under Sec. 67 of NDPS Act on record — Validity — Contention that summon on the one hand speaks of Sec. 53(1) of the Act & on the other hand a picture is created that it is summon under Sec. 67 of the Act & thus an attempt is made to take undue advantage of both provisions to the detriment of the accused — Court referring the contents of the summons indicated that first para of summon mentioning Sec. 53(1) is in the nature of introduction informing the addressee that summoning officer is empowered as such under Sec. 53(1) therefore it can not be said that same attract the provisions of Sec. 53- A — In this regard last para of the summon clearly states that addressee is summoned under Sec. 67 of the Act — There does not appear to be any confusion in this regard — Further as provided under Sec. 53A, it is now settled proposition of law that statement under Sec. 67 also should be relevant & admissible in evidence — Thus Court observed that there appears no error in the impugned order — That apart it can not be said that the impugned order finally affect the interest of revisioner — In that view of the matter Court opined that order in question is an interlocutory order & hence revision was incompetent — Narcotic Drugs & Psychotropic Substances Act, 1985 — Secs. 53(1), 53-A & 67.
If the first paragraph of the summon is seen, it is clear that it is in the nature of the introduction informing the addressee that the summoning officer is conducting an inquiry as is empowered under Sec. 53(1) of the said Act.
[Para 7]
This Section deals with details regarding investing of powers in certain officer of certain department by the Government with the powers of officer in charge of a police station and therefore, the first paragraph is only a introductory paragraph and therefore, it cannot be said that it would attract the provisions of Sec. 53-A.
[Para 8]
Likewise, if the last para of the summon quoted above is seen, it clearly states that the addressee is summoned in the forenoon of 13th April, 1998 at the given address under powers vested in the summoning officer under Sec. 67 of the NDPS Act. This being so, it is not possible to make any other interpretation then to interpret that this is summon under Sec. 67 of the NDPS Act. There is no confusion between the powers under Sec. 53(1) of the NDPS Act and Sec. 67 of the NDPS Act as is tried to be shown on behalf of the revisioner.
[Para 9]
Further Sec. 53-A of the NDPS Act provides that the statement made and signed by person before any officer empowered under Sec. 53 for investigation of offences, shall be relevant. Likewise, it is now settled proposition of law that statement under Sec. 67 also should be relevant and admissible in evidence. In this view of the matter, this Court finds no error in the imugned order admitting the statement to evidence.
[Para 10]
Now another aspect that requires to be considered is whether impugned order is assailable by preferring this revision. It is found that the order is of purely introductory nature. Admitting the document to evidence does not necessarily mean that document is presumed to be correct, trustworthy and of chaste evidential value. Even the learned Additional City Sessions Judge has also observed that the question of its reliability or otherwise, and its evidential value will be assessed at the time of final argument and it would be open in the argument for the parties to assail the statement at the relevant stage. In this view of the matter, mere admission of the document in evidence cannot be said to have affected the interest of the revisioner permanently.
[Para 11]
( 1 ) RULE. Mr. S. P. Dave, learned APP waives service of rule on behalf of respondents.
( 2 ) HEARD Mrs. Unwala, learned advocate for the revisioner and Mr. S. P. Dave, learned APP for the State. The revisioner herein challenges the order passed by the learned Additional City Sessions Judge below application Exh. 80 in Session Case No : 175 of 1998 pending before him. The present petitioner is the accused in that session case and is being tried for offences under Narcotic Drugs and Phychotropic Substances Act, 1985 (the `ndps Act for short ). During the course of trial, the application came to be tendered on behalf of the applicant objecting to taking on record and statement recorded under Section 67 of the NDPS Act and praying for not exhibiting that document on the ground that the summon seems to have been issued under Section 53 (1) of the NDPS Act, whereas the statement sought to be to be recorded purports to be under Section 67 of the NDPS Act and therefore, it cannot be taken on record unless condition as contemplated under Section 53 (A) are fulfilled. The learned Additional City Sessions Judge after hearing both the sides passed the impugned order dated 25/06/1999 rejecting the application. The learned Additional City Sessions Judge dealt with the arguments advanced on behalf of the accused revisioner and ultimately observed that the statement is relevant and it is therefore to be taken on record, but that does not mean that it is a `gospel piece but it has to be considered under which circumstances and it is recorded in whose presence which was recorded and under which circumstances persons making was placed. The question of evidential value has to be assessed at the time of final arguments and then ultimately rejected the application.
( 3 ) MRS. Unwala submitted that the revisioner challenges this order for the reasons that an important right of the accused is adversely affected by admitting this document on record. She says that the right of the accused of challenging the admissibility of the document is finally concluded by the learned Additional Sessions Judge and therefore the revision application is maintainable. On merits, she submitted that the summons is very craftily drafted. On one hand, it speaks of Section 53 (1) of the NDPS Act, on the other hand, a picture is tried to be created that it is summons under Section 67 of the NDPS Act and therefore, an attempt is made to take undue advantage of both the provisions to the detriment of the accused and therefore, this revision application may be entertained and the impugned order may be set aside.
( 4 ) MR. UNWALA has placed reliance on following decisions. (I) V. C. Shukla Vs. State through CBI AIR 1980 SC 962 (II) Amarnath and State of Hryana, 1977 Criminal Law Reporter (S. C.) 366 (III) Madhu Limya Vs. State of Maharashtra AIR 1978 S. C. 47 (IV) Hasmukh J. Jhaveri vs. Shella Dadlani and another 1981 Criminal Law Reporter 958.
( 5 ) MR. DAVE, learned APP submitted that it is amply clear from the summons that the first reference to Section 53 (1) is only in respect of the powers with which the summoning officer is invested and if the last paragraph of the summon is read, there is no scope for any other interpretation but that it is a summons under Section 67 of the NDPS Act. Therefore, there is no need to entertain this petition. On question of admissibility of evidence, as learned Additional City Sessions Judge in his order has also observed that admission of the document by itself is not a "gospel piece" but it will be decided on the touch stone of evidential value as any other piece of evidence. In this view of the matter, Mr. Dave, learned APP urged, that the revision application may be rejected. He has relied upon the decision of the Honble Apex Court in the case of AMARNATH VS. STATE OF HRYANA AIR 1977 SC 2185.
( 6 ) HAVING regard to the rival side contentions, it becomes necessary to reproduce the disputed portions of the summon which are
