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Madhya Pradesh High Court · body

2008 DIGILAW 1103 (MP)

IBRAHIM v. UNION OF INDIA

2008-09-04

S.L.KOCHAR

body2008
Judgment ( 1. ) HEARD on the application filed on behalf of the appellants under section 391 of the Code of Criminal Procedure (For short the code) for adducing additional evidence in the way of calling the seized opium in Court and its fresh weighment. ( 2. ) LEARNED counsel for the appellants has submitted that the appellants had filed an application for weighment of the seized opium in Court on 24. 06. 08 an the same was dismissed by the trial Court on the same day without assigning any cogent reason merely on the ground of delay in filing the application before the trial Court. Learned counsel has submitted that the delay cannot be a ground even for invoking the provision under section 391 of the Cr. P. C. For adducing additional evidence at the appellate stage. He has placed reliance on the judgments rendered by the learned Single Judge of the High Court of M. P. Bench at Gwalior in the case of Hindustan Food Products V/s State of M. P. 2008 Cri. L. R MP 599 and in the case of State of Gujrat V/s Mohanlal and others AIR 1987 SC 1321 . Learned counsel for the respondent filed reply- and opposed the application. He submitted that allowing the application of the appellants would be nothing but an abuse of process of Court of law. The appellants/accused had several opportunities during the course of trial when the case was fixed for adducing defence evidence from 23. 09. 06 till the date of arguments which were heard on 13. 06. 08. ( 3. ) HAVING heard learned counsel for the parties and after perusing the entire record, this Court is of the considered view that no case is made out for allowing the application of the appellants made under section 391 of the Code for issuing the direction for weighment of the seized narcotic drugs (opium) at this stage. ( 4. ) THE property was seized on 07. 07. 88 and also weighed. Thereafter, accused persons were produced before the Court immediately after expiry of 24 hours. They could have filed an application for fresh weighment of the seized narcotic drug (opium ). The complaint was thereafter filed on 04. 02. 89. On that date also, the accused persons could have filed the application, but they did not do so. Thereafter, accused persons were produced before the Court immediately after expiry of 24 hours. They could have filed an application for fresh weighment of the seized narcotic drug (opium ). The complaint was thereafter filed on 04. 02. 89. On that date also, the accused persons could have filed the application, but they did not do so. The appellants may say that it was not an appropriate stage for filing the application and they were waiting for entering into defence, but this argument is not sustainable, because they were not prohibited from filing the application showing doubt over the weighment got done by the respondent during the course of investigation. During the course of recording of the statements of prosecution witnesses, the entire seized property was produced in Court on 04. 01. 06. On this date, the property was given article marks. On this date also, an application could have been filed for weighment of the seized narcotic drug. On 06. 12. 2006, the accused persons/appellants submitted an application before the trial Court for taking fresh sample and sending the same to the Central Revenue Control Laboratory (for short CRCL ). This application was allowed on 02. 03. 2007 and the property was again produced in Court on 20. 06. 07 for taking sample. Out of the seized quantity, samples were taken before the Court and were sent for analysis to CRCL On this date, the appellants could have filed the application and prayer could have been made for weighment of the seized narcotic drug (opium), especially when the trial was going on for adducing defence evidence, after recording of the accused statement on 28. 09. 06 as per provision under section 313 of the Code. The application could have been filed on 30. 06. 07 when the property was ;produced and sample was taken for sending it to the CRCL, but no such application was filed and final arguments were heard on 13. 06. 08 and case was fixed for pronouncement of judgment on 26. 06. 08 after hearing arguments of both the parties. Before pronouncement of judgment on 24. 06. 08, application was filed under section 243 read with section 311 of the Code. Provision of section 243 thereof could not be attracted, because it was not the defence stage and the defence case was closed as well as final arguments were also heard. ( 5. Before pronouncement of judgment on 24. 06. 08, application was filed under section 243 read with section 311 of the Code. Provision of section 243 thereof could not be attracted, because it was not the defence stage and the defence case was closed as well as final arguments were also heard. ( 5. ) LEARNED trial Court, after hearing both the parties on this application, dismissed the same by passing a detailed order assigning reason that the application was filed at a belated stage just to delay the proceedings with an ulterior motive especially when the appellants/accused persons had got ample opportunity to adduce defence evidence after 28. 09. 06 till the date of final arguments i. e. 13. 06. 08, i. e. almost one year and nine months. ( 6. ) ON 24. 06. 08, after dismissal of the application, no prayer was made before the trial Court either orally or by filing an application for grant of time to challenge the order in revision or under section 482 of the Code before the High Court. The case was fixed for pronouncement of judgment on 26. 06. 08, but the same could not be pronounced, because the appellants were absent on that day as they were on bail and the case was again adjourned for pronouncement of judgment on 30. 06. 08. On this date also, the appellants remained absent and the case was adjourned for judgment on 02. 07. 08. On this date, judgment was pronounced. After dismissal of the application dated 24. 06. 08 and pronouncement of judgment on 02. 07. 08, the appellants were having opportunity to challenge the said order, but they have not availed that opportunity and filed this application under section 391 of the Code with this Criminal Appeal. ( 7. ) LEARNED counsel for the appellants has failed to assign any reason as to why the application or prayer could not be made during the course of trial especially when there was no prohibition or any hindrance. In the application before this court, no reason has been assigned. Learned counsel has argued that only on the ground of delay, application filed before this Court, should not be dismissed. In the considered opinion of this Court,. question of delay is always weighed in judicial proceedings and when it appears that same was done deliberately with mala-fide intention, it becomes very alarming. Learned counsel has argued that only on the ground of delay, application filed before this Court, should not be dismissed. In the considered opinion of this Court,. question of delay is always weighed in judicial proceedings and when it appears that same was done deliberately with mala-fide intention, it becomes very alarming. In the instant case, it is as clear as day light that having several opportunities, the appellants did not avail and delay has been caused with an expectation to get some sort of favour by weighment from 1988 to 2008 i. e. after more than 20 years. ( 8. ) THE provision of section 391 of the Code for recording of additional evidence at an appellate stage, is not meant for such kind of situation. It is mandatory for this Court to record reasons for allowing this application which is not available and also not pointed out by the learned counsel for the appellants. The provision of section 391 of the Code cannot be invoked lightly and the power under this section is to be used sparingly, otherwise in any situation in every case, parties can file application and same has to be allowed. ( 9. ) LEARNED counsel for the appellant has placed reliance on the judgment in the case of Hindustan Food Products (supra ). In this case, the appellant filed an application under section 391 of the Code for taking on record the nomination order nominating a for the purposes of prosecution as per provision under section 17 (2) of the Food Adulteration Act, 1954. The applicant stated specifically in the application that nomination order was communicated to and acknowledged by Local (Health) Authority and was also given by the applicant to his Advocate to use the same for necessary purpose, but the Advocate concerned did not file the appropriate application during the course of trial. The applicant stated specifically in the application that nomination order was communicated to and acknowledged by Local (Health) Authority and was also given by the applicant to his Advocate to use the same for necessary purpose, but the Advocate concerned did not file the appropriate application during the course of trial. Learned Single Judge, after taking into consideration several Supreme Court and High Court pronouncements wherein it has been held that the intention of law can never be to prosecute and punish such a person who as per provision of law, ought not to be prosecuted and punished, allowed the application and also observed that it was the duty of the prosecution to collect the correct information from the office of the firm, as to who was the correct person to prosecute, whereas in the case at hand, there is no statutory provision in favour of the accused, or document, which may affect the complete complexion of the prosecution case. ( 10. ) IN the case of Mohahlal (supra), report of Mint Master was already on record, but it had not been formally proved. The report completely supporting the case of the prosecution. The application was filed for taking that report on record and same was allowed. The Supreme Court has stated that the lacuna is a technical one and the entire prosecution case, should not suffer the fate of dismissal. In this judgment, the Supreme Court has not issued any mandate that in all cases, application under section 391 of the Code for recording of additional evidence, must be allowed and should not be dismissed on the ground of delay. ( 11. ) IN the instant case, the question of delay is crucial one, because it has been caused with a vexatious purpose and recording of additional evidence is not a technical formality. There is already weighment evidence adduced by the prosecution available in the case and appellant got ample opportunities to challenge the same. ( 11. ) IN the instant case, the question of delay is crucial one, because it has been caused with a vexatious purpose and recording of additional evidence is not a technical formality. There is already weighment evidence adduced by the prosecution available in the case and appellant got ample opportunities to challenge the same. See: Rajeswar Prasad Misra V/s State of West Bengal AIR 1965 SC 1887 , Parachuri Radhakrishna Murthy V/s State SHO Bandar Taluk Police Station 1986 (2) Crimes 537, Mansukmhlal Vithaldas V/s State of Gujrat 1994 (2) Crimes 137 , Nishar Ahmed Fajmohmed Kaji V/s State of Gujrat 1998 9 SCC 23 , Rambhau V/s State of Maharashtra 2001 4 SCC 759 , satyajeet Banerjee V/s State of W. B and others 2005 SCC (Cri) 276, Gavedei V/s Subhashdei 1999 Cri. LJ 3071 and Thomas V/s State of Kerala 1999 Cri. L. J. 1297. ( 12. ) IN view of the foregoing legal and factual discussion, this Court does not find any substance in this application. Therefore, the same is hereby dismissed. Appeal dismissed.