The prosecution is obligated to prove its case without seeking assistance from the accused, and the best available evidence should be brought before the court.

1. 1. The petitioner has filed this Misc. application challenging the order dated 21.6.1995 passed by the learned Special Judge, NDPS Cases, Udaipur by which the learned Judge dismissed the application moved by the petitioner Under Section 311 Criminal Procedure Code praying for summoning the Handwriting expert.

2. It appears that in the case pending before the learned Judge, the statements of the accused-persons were recorded Under Section 313 Criminal Procedure Code and in the above examination, the accused denied to have made any statement Under Section 67 of the NDPS Act. The prosecution case was that each of the accused denied the statement given Under section 67 of the NDPS Act and, therefore, the prosecution was compelled to request the Court to summon the Handwriting expert for comparision of the signatures contained in the statement Under Section 313 Criminal Procedure Code with the disputed signatures contained on the statement Under section 67 of the NDPS Act. The learned Judge was of the opinion that it was reasonable on the part of the prosecution to have expected that the accused would make attempts to deny the statements made by them Under section 67 of the NDPS Act and hence, there was nothing surprising if the accused denied to have made the statement Under section 67 of the NDPS Act. It was the duty of the prosecution to have proved its case without seeking any assistance from the accused. Hence, there was no occasion for the prosecution to have sought the assistance of the Handwriting expert. He, therefore, dismissed the above application filed by the petitioner.

3. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondents and have carefully gone through the record of the case.

4. The learned counsel for the petitioner has submitted that a perusal of the impugned order shows that the learned Special Judge dismissed the above application mainly on the ground that if the Handwriting expert is summoned and examined, it will delay the trial of the case and prolong the litigation of the accused further. According to the learned counsel, this cannot be a valid ground for refusing the application Under Section 311 Criminal Procedure Code. He has relied on Mohan Lal Shyamji Soni v. U.O.I., AIR 1991 SC 1346 and State of Gujarat v. Mohanlal, AIR 1987 SC 1321 .

5. The learned counsel for the respondent has supported the impugned order of the learned Special Judge. He has contended that from the facts of the case, it is clear that the above request was made on account of denial of the accused of their statements made Under Section 67 of the Act. He has contended that as to how the prosecution proceeded with the assumption that the accused would admit to have made the above statement. Hence, if the accused denied to have made the above statement, the prosecution was not taken by any surprise. The prosecution was also not dispensed with the legal requirement to prove the above statement. In evidence against the accused. Merely by denial of the statement made by the accused in their statements Under section 313 Criminal Procedure Code cannot give rise to this right to summon the Handwriting expert.

6. The learned counsel for the respondent placed reliance on State of Maharashtra v. Sukhdeosingh and Anr., 1992 SCC 705 , State of Raj. v. Bhagirath, 1990 (1) RLW 403 and Kesa v. State of Raj., 1987 (2) WLN (297) .

7. I have considered the rival submissions made at the bar. It is apparent that the prosecution was prompted to move the application for summoning the Handwriting expert in order to prove the signatures of the accused contained in their statements Under section 67 of the NDPS Act, when the accused denied the same in their statements Under section 313 Criminal Procedure Code. This cannot constitute a reason to seek indulgence of the Court to exercise the discretion conferred by Section 311 Criminal Procedure Code.

8. In Mohanlal Shyamji Soni's case (supra), the