Mehal Singh vs State of Punjab

V.S. Aggarwal, J.

This revision petition filed by Mehal Singh (hereinafter described as ''the petitioner'') is directed against the judgment of the learned Additional Sessions Judge, Ferozepur dated 26.2.1990. By virtue of the impugned judgment, the learned trial court had accepted the appeal filed by the petitioner. The conviction and the order of sentence recorded by the learned trial court was set aside. The case was sent back to the trial court for being disposed of in accordance with law, with a direction to dispose of the case preferably within one month.

To appreciate the question in controversy, it would be appropriate to have a grip of the facts. On 29.1.1994 Kishori Lal Police Inspector alongwith Constable Kundan Singh in the government jeep were on routine patrolling duty. The police party was proceeding from the side of Basti Tainkanwali towards Ferozepur Cantt. On the way Rajinder Singh son of Khushal Singh of Basti Tainkanwali was joined in the raiding party. When they reached near Railway Station, Ferozepur Cantt, a number of C.R.P.F. personnels including ASI Jagir Singh were going towards the Railway Station. Three persons were seen moving under suspicious circumstances. ASI Jagir Singh asked them to stop. All the three started running. Two were overpowered but the third managed to escape. One person apprehended was the petitioner. He was holding an attache case in his right hand. From the attache case, six packets of Heroin were recovered. They were weighed. Four packets were found to be of 1 Kilogram and 100 grams each. Two packets were found to be of 900 grams each. 20 grams was taken as the representative sample from each packet. The representative samples and the remaining Heroin were converted into separate parcels and sealed with the seal of ''KL''. They were taken into possession vide a recovery memo. Ruqa was sent to the police station, on basis of which formal first information report was recorded. The representative samples were subsequently sent for report of the Public Analyst. It was found to be containing morphine.

During the course of evidence before the trial court, one witness was examined. Rajinder Singh was given up to have been won over by the petitioner. The trial court thereafter had closed the prosecution evidence. On appraisal of the evidence, the petitioner was held guilty and convicted for the offence punishable under Section 14 of the Dangerous Drugs Act, 1930. By the subsequent order, he has sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for six months. The petitioner preferred an appeal in the Court of Sessions. The learned Additional Sessions Judge, Ferozepur noted that the report of the Chemical Examiner was available on the record but was not tendered. The first appellate court concluded that it was a necessary piece of evidence and accordingly remanded the case to the trial court to dispose of the case as per directions given that the report of the Chemical Examiner should be allowed to be tendered and thereafter the petitioner reexamined under Section 313 Cr.P.C.

Aggrieved by the said order remanding the case to the trial court, the present revision petition has been filed.

Learned counsel for the petitioner urged that the evidence of the prosecution had been closed by the order of the court and subsequently the prosecution even had filed an application for permission to lead the other evidence but the same was rejected by the learned trial court. He contended that no revision petition was filed against the order closing the evidence or rejecting the said application. Therefore, the learned Additional Sessions Judge could not remand the case to permit the report of the Chemical Examiner to be tendered, thereby set aside the order which in the opinion of the learned counsel has become final.

The said submission indeed is without any merit. The law is well settled that if against an interlocutory or interim order, a revision petition is not filed, then the said order can be challenged when he appeal is filed against the final order. When the appeal is pending before the appellate court, the entire matter is available for consideration. In these circumstances it cannot be termed that the order passed whereby the evidence of the prosecution was closed had assumed finality.

It is true that the learned trial court had closed the evidence of the prosecution. However, what cannot be disputed is that the report of the Chemical Examiner was on the record. It had simply to be tendered in evidence. It was a material piece of evidence which could reflect as to what was recovered was Heroin or not. The said report was not tendered. On the face of it, was an inadvertent mistake of the Assistant Public Prosecutor conducting the case. There is nothing to indicate that the prosecution did not want to tender the said report. Consequently, once such a mistake had occurred, it should be allowed to be rectified. After all when the Court closed the evidence, the said report in any case could be tendered by the Assistant Public Prosecutor which was on the record.

Learned counsel for the petitioner had drawn the attention of the Court towards the decision of the Supreme Court in the case Machander v. The State of Hyderabad, AIR 1955 SC 792. In the cited case the accused was tried for the murder of the deceased. The evidence against him was that few days before the incident, the accused and the deceased had attended the court in connection with the litigation. 13 days after the murder, he knew that the deceased had been killed. Certain confession had been made but while recording the statement of the accused under Section 342 Code of Criminal Procedure, 1898 (corresponding Section 313 Cr.P.C.), he was not questioned about the said confession. The Supreme Court held that this was a vital omission which affected the conviction of the accused. It is apparent from perusal of the facts that the cited decision was confined to the peculiar facts about recording of the statement of the accused and the importance thereto. It will have no reflection on the facts of the present case. Herein a vital evidence in the form of report of the Public Analyst had not been tendered. The present case is totally different and consequently, it will not come to the rescue of the petitioner.

In that event it was argued that the lacunas cannot be allowed to be filled up in the form of evidence which had not been produced. Reliance was placed on the decision of the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677. The Supreme Court in paragraph 4 held :

"It is well settled that in a criminal case this court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it."

The observations of the Supreme Court reveal that if an evidence is deliberately left by the prosecution, the same cannot be allowed to be produced. As noted above herein it was a case where prosecution evidence was deliberately left. It is clear that it was an inadvertent mistake as noted above. Therefore, the cited observations in the peculiar facts of the cited case have little role to play. Yet another decision relied upon was in the case of Avtar Singh v. State of Punjab, 1989(2) Recent Criminal Reports 676. In this case the Appellate court had remanded the case to the trial court for recording the statements of the witnesses. It was held that it was not proper keeping in view that sufficient time had elapsed. Herein no such witnesses have to be recorded and the facts in the present revision petition are totally different.

As a last resort a stone was cast in the water to create ripples by asserting that sufficient time has elapsed and in these circumstances, remanding the case will not be in the interest of justice.

In this regard Article 21 of the Constitution of India was pressed into service. Indeed there is no controversy that there has to be expeditious disposal of the cases. But in this regard there cannot be any straitjacket formula. Each case has to be evaluated on its own merits. It is not a case where de novo trial has been directed. Only a report has to be tendered. There is bound to be no further delay. This question of delay was considered by the Supreme Court in the case Municipal Corporation of Delhi v. Girdharilal Sapuru and others, AIR 1981 SC 1169. In paragraph 6 it was held :

"No other contention was raised before us by Mr. Singh save saying that long time has elaposed sine the prosecution was launched and, therefore, further trial would cause hardship to the accused. Times without number it has been pointed out by this Court that those who indulge into such a pernicious activity of manufacturing and/or selling adulterated articles of food posing a threat to the health and wellbeing of large number of people should be properly dealt with according to law and in such cases and narrow technicalities should not be allowed to outweigh the cause of justice."

This decision knocks the bottom of the petitioner''s submission. A discretion has been exercised by the first appellate court which is basically in the interest of justice. It will not be proper for this Court to interfere in the discretion. That has been exercised particularly when as noted above only the report of the public Analyst which ought to have been tendered was not tendered and has been permitted to be tendered in evidence. This was not a case of deliberate omission. Thus, there was no ground to interfere in the impugned order.

For these reasons, the petition being without merit must fail and is dismissed.