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2007 DIGILAW 1704 (DEL)

SALIM @ KALLU v. STATE (NCT OF DELHI)

2007-08-24

SHIV NARAYAN DHINGRA

body2007
( 1 ) THIS application under Section 482 Cr. P. C. has been made by the appellant during the pendency of the appeal. The appellant was convicted by the special Judge under Section 21 (c) NDPS Act for possessing 400 gms. of smack in fir No. 36/2001. The appellant submitted that in view of the judgment of this court in Ansar Ahmad v. State 2005 (3) JCC (Narc) 193 ascertainment of percentage of the narcotics substance in the recovery made from the appellant was necessary to come to the conclusion whether the appellant was in possession of small quantity or commercial quantity of the morphine. The substance recovered from the appellant tested positive for diacetylmorphine as per the FSL report however, the FSL did not determine the percentage of the diacetylmorphine in the substance. The appellant therefore, could not get the advantage of judgment given by this Court in Ansar Ahmad v. State. The appellant submitted that he had a strong belief that percentage of the contraband in the recovery made from him was likely to be minute and even if, the percentage content was 50% still the total recovery would be below the commercial quantity. He therefore, prayed for sending another sample of the substance to the FSL during the pendency of the appeal. ( 2 ) THE issue raised by the counsel for the respondent is, whether during the pendency of this appeal, the Court in exercise of its inherent jurisdiction can order for further investigation or re-investigation of the sample. ( 3 ) THERE is no provision under Cr. P. C. which permits re-testing of sample during the pendency of the appeal. The investigation of an offence is to be done by the police in terms of the statutory powers granted to the police under Cr. P. C. The Court has no role to play in the investigation unless there exists any extraordinary situation. If the accused or the State are not satisfied with the investigation, they are at liberty to move an appropriate application before the concerned MM under Section 173 (8) of the Cr. P. C. requesting the Court to order for further investigation or re-investigation on some aspect. In the present case, accused had full opportunity to request the trial Court for further investigation but the appellant did not avail this opportunity. P. C. requesting the Court to order for further investigation or re-investigation on some aspect. In the present case, accused had full opportunity to request the trial Court for further investigation but the appellant did not avail this opportunity. ( 4 ) I also consider that on the basis of a judgment which is delivered by a Court after the trial is over, an accused cannot claim a right of re-investigation or further investigation. Neither it is expected from the prosecution to know the law that would be laid down in future by Courts and to investigate the cases keeping in view the future rulings to be delivered by the court. Law in India always remains in flux. If the further investigation or re-trial is ordered on the basis of future judgments delivered by the Court there would be chaos in criminal justice system. The earlier view of the Court in rape cases was that sole testimony of prosecutrix was not sufficient to convict a person for offence of rape and there should be corroboration of such testimony however, this view changed with time and the Court came to the conclusion that sole testimony of prosecutrix, if reliable, was sufficient to convict a person for rape. Many accused persons were acquitted by the Courts below, High Courts and even by Supreme Court on the ground that there was no corroboration to the testimony of prosecutrix, prior to present view. If the state was allowed to reopen all such cases and insisted on conviction of those persons acquitted, on the ground that present view should be applied to all those old cases, there would be chaos. A judgment is delivered by a Trial Court keeping in view the law laid down by the Apex Court and the High Courts. If subsequent to the delivery of the judgment by the Trial Court, some new judgment is delivered by High Courts or by Supreme Court, the appellant cannot ask for re-investigation of the case keeping in view the subsequent view of the Higher courts. Neither this Court in exercise of its inherent power can order re- investigation or re-analysis of samples and re-trial of the case on the basis of such re-analysis by the Trial Court. Neither this Court in exercise of its inherent power can order re- investigation or re-analysis of samples and re-trial of the case on the basis of such re-analysis by the Trial Court. ( 5 ) IN Popular Muthiah v. State 2006 (7) SCC 296 Supreme Court observed as under: the High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the Appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away right of an accused. The high Court should have been circumspect in exercising the said jurisdiction. When a power under sub-section (8) of Section 173 of the Code of Criminal procedure is exercised, the court ordinarily should not interfere with the statutory power of investigating agency. It cannot issue directions to investigate the case from a particular angel or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore direction prosecution of the Appellant which was unwarranted in law. ( 6 ) I consider that this Court cannot order for further investigation in the case by directing the prosecution to again send sample for testing in exercise of its inherent powers under Section 482 Cr. P. C. . The application is dismissed.