ORDER

Dated this the 10th day of March, 2022.

This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to set aside an order passed by Additional Court of Sessions-IV, Thiruvananthapuram (for short ‘the court below’) on 10.01.2022 in Crl.M.P.No.1966/2021 in S.C.No.82/2021.

2. S.C.No.82/2021 was taken on file based on filing of a chargesheet alleging commission of offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). The allegation of the prosecution was that at about 7.30 pm on 02.08.2020, accused, four in numbers were found in possession of 40kgms of Ganja. Investigation was pursued with and on conclusion of the same a final report was laid before the court and that was taken on file by the court. An application was filed by the accused after framing charge against him, under Section 91 Cr.P.C seeking for production of the General Diary maintained at the Excise Circle Office, Attingal and Varkkala and Excise Range Office, Kilimanoor and also for production of vehicle diaries/log books of the official vehicles used by the Excise Circle Inspectors, Attingal, Varkala and Kilimanoor from 2 pm to 10 pm on 22.08.2020. The application was vehemently opposed by the learned Public Prosecutor but was allowed by the court below and the petitioner herein was directed to produce the documents called for.

3. The argument of the learned counsel for the petitioner was that the defence could avail the opportunity for obtaining an order directing production of documents at the stage of defence evidence. According to him since the trial was not commenced, the court below ought not to have passed an order of the nature, at a too early stage. According to him only after closure of the prosecution evidence the defence could file an application seeking production of documents by the prosecution. Further contention raised was that the documents called for are not relevant for the purpose of the case and the direction was issued by the court below for production of those without applying it’s mind to it’s relevancy in the trial proposed to be held.

4. Section 91 Cr.P.C is extracted hereunder to see whether the order passed is out of jurisdiction.

“91. Summons to produce document or other thing.

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers'

Books Evidence Act, 1891 (13 of 1891 ); or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

It is provided under the above Section that whenever any court or any officer in charge of a police station considers that production of any document or other thing is necessary or desirable for the purposes of any investigation, enquiry, trial or other proceeding under this Code it may issue a summons or written order to the person in whose possession or power such document or thing is or believed to be. The court can also require for the personal presence of the witness who has custody of those, during production of the documents.

5. Paragra