Leave granted.

Can a trial Court permit lacuna in prosecution evidence filled up? The conventional concept is that the Court should not do so. But then, what is meant by lacuna in a prosecution case, has to be understood before deciding the said question one way or the other.

The present case provides an occasion to decide the said question. Appellant is now facing trial alongwith certain other persons before a Court of sessions for offences under sections 21, 25 and 29 of the Narcotics Drugs and Psychotropic .

Substances Act, 1985. Appellant is now on bail pursuant to an order granted by the High Court of Delhi. As the trial proceeded almost to the end when the prosecution and the defence closed their evidence on 19.9.1997, the case was posted for further steps. Nevertheless, subsequently, the case stood posted to some other days also. On 7.3.1998, at the instance of the prosecution two of the witnesses, who were already examined, were resummoned for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments.

It appears that arguments were heard in piece-meal on different days. On· 7.6.1998, the Public Prosecutor moved an application seeking permission to examine PW-21 (Dalip Singh-SI) and two other persons. Though the application was stoutly opposed by the accused's counsel the trial Court allowed it in exercise of its power under section 311 of the Code of Criminal Procedure (for short 'the Code') and summons were issued to the witnesses, as per its order dated 8.1.1999.

The relevant portion of the order of the trial Court is the following:

"In order to find out whether the CFSL From accompanied the sample packet or not, it has been repeatedly held by the Hon'ble High Court that the Road Certificate should be produced to make things clear in this respect. It cannot be denied that it is an old case and directions have been issued several times to expedite the trial but at the same time when the witnesses are available the prosecution cannot be debarred by examining him. In the present case, cross examination of PW 4 was deferred by Learned Additional, Public Prosecutor. Cross examination of PW 21 by the Defence Counsel was deferred but thereafter he was never summoned for cross-examination. There was negligence on the part of Public Prosecutor as he closed evidence twice without verifying whether cross-examination of all the witnesses has been concluded or not. However, in the interest of justice, I allow the application to the extent that PW 21 Dalip Singh be recalled for cross-examination. The interest of justice demands that things should be . clear before the Court to assist it to meet the ends of justice."

Appellant challenged the said order in revision before the High Court of Delhi. As it was an interlocutory order the question whether a revision was not maintainable as per section 397(2) of the Code was not considered by the High Court. Nevertheless, the High Court entertained the revision and dismissed it as per the impugned order. According to the learned single judge who dismissed the revision "there are certain circumstances which have been mentioned in the order of the sessions judge which forced him to pass the order".

Learned counsel for the appellants contended that the trail Court failed to appreciate that in the garb of exercise of powers under section 311 of the Code a Court cannot allow the prosecution to re-examine prosecution witnesses in order to fill up lacuna in the case. Lacunae, as pointed out by the learned counsel, were the following :

(a) PW 21 Daleep Singh was never tendered by the prosecution for cross examination.

(b) PS Suresh Chand Sharma was also not cross examined by the State.

(c) There was no link evidence to correct the testimony of PW 28 H/C Jai Prakash that aspect was highlighted during arguments in the trial Court, . before the Court resorted to by the impugned ste