JUDGMENT

Dr. B.R.Sarangi, J. This application is directed against the order dated 9.6.2004 passed by the learned Special Judge-cum-A.D.J., Paralakhemundi (Gajapati) in G.R.Case No.221 of 2002/ T.R.No.7 of 2002 arising out of Mohana P.S.Case No.28 of 2002 under Section 20 of the N.D.P.S. Act wherein in exercise of the power under Section 311 of the Code of Criminal Procedure, he has called upon the I.O. (P.W.7) for re-examination and directed the Special Public Prosecutor to furnish the names of the witnesses and the description of the documents, which the prosecution wants to examine/ prove for speedy trial.

2. The prosecution case, in brief, is that on 4.6.2002 the A.S.I. of Mohana P.S., who was on evening patrol duty, found three cement gunny bags lying in the rest-shed of Mohana Bus stoppage near T.R.W. hostel. He detained the petitioner, who was waiting for the Bus to way home and two others, who were standing there. It is further alleged that some other persons, who were standing there fled away seeing the police. The A.S.I. sent information to the Police Station. The O.I.C. and B.D.O. (P.W.5) arrived there and found three bags to have contained Canabis (Ganja) and the said articles were seized and on personal search, nothing was found from the petitioner. However, the petitioner was arrested and sent for trial.

3. The prosecution examined seven witnesses, whereas the petitioner examined himself under Section 315, Cr.P.C. In the said statement, the petitioner has explained the circumstances under which he was in Mohana Bus stand situated at Mohana Bazar area and stated that at the relevant time he had gone to Mohana in connection with marriage negotiation and was waiting for the bus to come back home.

4. After completion of trial, the case was posted to 9.4.2004 for judgment on which date the learned Special Judge did not deliver the same as some inherent defects in the prosecution case as pointed out by the defence to the extent that on 5.6.2002 the S.D.J.M. was not in office and the C.J.M. was in-charge and the S.D.J.M. appears to have sent the sample for chemical examination without referring in the order-sheet as to who authorized him to send the sample for chemical examination and it was also not reflected in the forwarding report if the seal was in-tact and the proper custody of the M.Os. from 5.6.2002 till 7.6.2002, the date it was produced in the Laboratory, has not been established. In this circumstances, vide order dated 9.6.2004 the learned Special Judge in exercise of the power conferred under Section 311, Cr.P.C. directed for recalling the I.O., P.W.7 for clarification and directed the Special P.P. to make a prayer in writing by next date, i.e. by 23.6.2004 stating therein the details of the names of the witnesses and description of the documents, which the prosecution wants to examine/ prove. In the impugned order, it was observed that any subsequent prayer to that effect shall not be entertained.

5. Heard learned counsel for the parties.

6. In the above backdrop of the case, learned counsel for the petitioners strenuously urged that the learned Special Judge could not have exercised the power under Section 311, Cr.P.C. to recall the witness, P.W.7 to fill up the lacuna in the prosecution case when the matter was posted for judgment after completion of adducing evidence by both parties. It is also further urged that in absence of any application filed by the prosecution for recalling the witnesses and calling for the documents, the court could not have issued such direction to patch up the defects, which ought to have gone in favour of the defence. He fairly submits that the law empowers the court to recall any witness or summon any witness at any stage of the proceeding, which does not mean that even after conclusion of the trial and the matter was posted for judgment. It is further stated that pursuant to the impugned order, the case has been adjourned to 23.6.2004, but the same is against the spirit of Sec