IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.Rev.Pet.No. 1872 of 2010() ------------------------------ AGAINST THE ORDER DATED 17.6.2010 IN CRMP.1595/2010 IN SC.353/2009 of ADDL.SESSIONS COURT, (ADHOC-1), ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER/ACCUSED --------------------------------------- ANAS, AGED 27 YEARS, S/O.ASHRAF, KALAPURACKAL HOUSE, KANJIRAKKAD KARA, PERUMBAVOOR. BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY RESPONDENT: -------------------- STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PERUMBAVOOR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI C.M.NAZAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1872 of 2010 ---------------------------------------- Dated the 27th Day of July, 2010 ORDER The sole accused, in a Sessions Case for the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred for short 'The NDPS Act'), is the revision petitioner, as he is aggrieved by the order dated 17.6.2010, of the trial court, rejecting his prayer on his petition under section 233 Cr.P.C, to summon certain witnesses and for producing certain documents etc. as shown in the petition filed in this regard. 2. The above Sessions Case is instituted on the allegation that the revision petitioner/accused was found in possession of 1150 grams of ganja at about 4.00 p.m on 16.6.2009 and the ganja was seized by the Sub Inspector of Police, Perumbavoor Police station in pursuance of an information received by him. According to the said officer, on getting information, he went to the spot in the police jeep bearing KL 01-AV 9912 and thereafter effected the CRLRP 1872/10 -:2:- seizure as per Annexure-I mahazar dated 16.6.2009. As per the above mahazar, the said police officer went to the spot in the jeep mentioned therein and the contraband article which seized from the possession of the accused was weighed by using the weighing balance which he had in the investigation kit. 3. The learned Sessions Judge, during the trial recorded the evidence of PWs 1 to 3 on 3.6.2010 and that of PWs 4 and 5 on 4.6.2010 and the prosecution evidence was closed on 4.6.2010. Thereafter the case was adjourned to 9.6.2010 for recording the statement of the accused under section 313 Cr.P.C. Thereafter the case was adjourned to 10.6.2010 on which date the petitioner, preferred Annexure-II Petition under section 233 Cr.P.C, which was adjourned to 14.6.2010 and again to 15.6.2010 for the objection of the Public Prosecutor. The Public Prosecutor filed Annexure-III objection only on 17.6.2010 and on 17.6.2010, the learned Sessions Judge issued the impugned order rejecting Annexure -II petition preferred by accused. It is against the above order , this Crl.R.P is CRLRP 1872/10 -:3:- preferred. 4. I have heard Sri Mathai Varkey Muthirenthy, the learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. 5. On the strength of the decisions Nagappa v. Muralidhar {(2008 (3) KLT 158 (SC)} and Issac Thomas v. State of Kerala (2010 (3) KLT 56), the learned counsel submitted that by rejecting Annexure-II petition, the trial court has denied the fundamental right of the revision petitioner/accused to adduce defence evidence and that too without assigning any proper and legal reasons. It is also the contention of the learned counsel that on filing an application under section 233 Cr.P.C., no court can dismiss such a petition, except on satisfaction that the same was filed for protracting the trial or the petition is a vexatious one. The learned counsel submitted that though the trial court has dismissed the petition under the pretext of exercising the powers in section 233 of Cr.P.C., no particulars or reasons are assigned to come into such a conclusion. Pointing out the procedure of the court below CRLRP 1872/10 -:4:- in the above case, the learned counsel submitted that the defence, for using the first opportunity, that is, at the time of examination of PW1, approached the court with a prayer for producing the materials and documents which sought to be summoned in this petition. But the same was not considered timely, and hence on the closure of the prosecution evidence, the accused preferred Annexure- II petition and the case was being adjourned at the instance of the prosecution and there was no laches or negligence from the part of the revision petitioner to protract the matter. Therefore, according to the learned counsel, the order is liable to be set aside. 6. On the other hand, the learned Public prosecutor fairly submitted that, especially in the light of the decision of this court in Dharmarajan v. State (2002(2) KLT 666), the accused has got a right to get examined his witnesses, and in the present case, according to the learned Public Prosecutor, the trial court ought not have dismissed the petition as such. It is also the case of the learned Public Prosecutor that the purpose pointed out for CRLRP 1872/10 -:5:- the examination of the 3rd witness in Annexure-II cannot be supported since such a proceedings is unheard since the said witness has already been examined as prosecution witness. According to the learned Public Prosecutor, as far as witnesses Nos.1 and 2 are concerned, by allowing those prayers, the petitioner's right to defence can be saved. 7. I have gone through the impugned order and I have carefully considered the arguments advanced by both the counsel for the revision petitioner as well as the learned Public Prosecutor. 8. The specific case of the prosecution is that the Sub Inspector of Police, Perumbavoor Police station, the detecting officer, on getting information, went to the spot in department vehicle mentioned in Annexure-I mahazar and on seizure of the contraband article from the accused, weighed the same by using the weighing balance which he had among the other items in the investigation kit and on such weighing, it was found that the total weight of ganja seized from the possession of the accused is 1150 CRLRP 1872/10 -:6:- grams. Annexure-1 mahazar reveals the prosecution case regarding the seizure, mode of weighing etc. As rightly pointed out by the counsel for the revision petitioner, in case of conviction, the quantum of sentence depends upon the quantity of the contraband article seized from the possession of the accused and therefore, regrading the process of seizure, weighing of contraband article etc., are very material and important as far as an accused is concerned who is facing the trial under the provisions of the NDPS Act. Therefore the evidence, if any, which would show that the vehicle and weighing balance etc., mentioned in Annexure-I mahazar were not available at the time of detection and seizure of the contraband article as per Annexure-I is relevant and material and the evidentiary value of those materials are capable to uproot the very basis of the prosecution case. If that be so, it was incumbent upon the trial court to consider the petition preferred by the revision petitioner/accused on its merit and to take a decision in accordance with the procedure and the legal position which governs the field. CRLRP 1872/10 -:7:- 9. A Division Bench of our High Court, in the decision in P.K.J Pillai v. State of Kerala (1982 CRL.L.J.899), has held that provisions of Section 233 being mandatory, non-compliance thereof results in prejudice to accused in conduct of his defence. Another Division Bench of this Court in the decision in Bhadran v. State of Kerala (1993 CRJ.L.J 1966), reiterating the legal position, it is held : “In the state of law, the accused must be informed of his right by the trial Judge and an effective and meaningful opportunity to adduce evidence in his defence must be extended to him, when necessary by giving reasonable adjournments. While acting under S.233, the court must tell the accused that he has a right to enter on his defence, even if he is represented by counsel. then, the court must also tell him that he can adduce evidence in support of his defence. If he needs time for that, he is entitled to have such time. S.233 embodies a deep rooted principle, recognized in trials, namely that, no man shall be condemned, in his defence without hearing him”. Another Division Bench of this Court, in the decision in Radhanandan v. State of Kerala (1990(1) KLT 516), CRLRP 1872/10 -:8:- has held that the application of the accused for issue of process for compelling the attendance of any witness or the production of any document or thing cannot be rejected by the court as unnecessary. It is also held that the discretion of the court to reject such an application under S.233(3) is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The court held that subject to the above limitation, the accused has got an unfettered right under Section 233 of Cr.P.C. In the very same decision, it is also held that, when a witness was asked and he answered that at the relevant time he was at the scene of occurrence and he saw the incident, evidence that he was not there and he was somewhere else and hence he had no occasion to see the incident is permissible. In a decision in Manoj Kumar Swami v. State of U.P. (2006 CRL L.J.1781), it is held by the Allahabad High Court held that at the stage of defence, accused would have right to summon any evidence which may be relevant for proper appreciation of CRLRP 1872/10 -:9:- prosecution evidence. 10. Except the few sentence in paragraph 8 of the impugned order, there is no discussion or explanation as to how the learned Sessions Judge came into the conclusion that Annexure-II petition was filed vexatiously and for protracting the trial or for defeating the ends of justice. The sentence contemplated by the provisions of the NDPS Act is very harsh and therefore, the defence is always entitled to get fair opportunities to substantiate their plea and to adduce defence evidence. In order to discharge the task of dispensation of criminal justice, the court must approach the issue with open mind, of course, subject to the authorities and the legal and procedural provisions. But the policy of the court should not be shutting down the evidence. 11. In this case, it is pertinent to note that Annexure-II petition is filed even according to the counsel for the revision petitioner, only on 10.6.2010, of course, after the closing of the prosecution evidence. But the revision petitioner was fully aware of the charge which he CRLRP 1872/10 -:10:- has to face and also the materials and documents relied on by the prosecution to substantiate the charge against him. Therefore, the revision petitioner ought to have taken appropriate steps, before the examination of the S.I of Police, Perumbavoor police station and the said witness ought to have been cross examined on the basis of such document or thing or materials. The learned counsel pointed out that much earlier to the examination of PW1, namely, the S.I of Police, Perumbavoor police station, the revision petitioner had approached the court with a similar prayer but that was not considered by the court below in time which persuaded the petitioner to approach the trial court again on 10.6.2010. The learned counsel for the petitioner made available to me a certified copy of the order dated 8.6.2010 of the trial court in Crl.M.P.No.506/2010 in S.C.No.357/2009. The above fact and submission of the learned counsel are not controverted by the learned Public Prosecutor. Therefore, it appears to me that the revision petitioner had taken earnest steps at appropriate time, to challenge prosecution evidence and CRLRP 1872/10 -:11:- to let evidence in favour of the defence so as to substantiate his pleadings. From the facts indicated in the foregone paragraphs, it appears that after 313 statement of the accused, being the stage of sessions trial, the case was posted for the defence evidence on 10.6.2010, and on that day itself the revision petitioner had preferred Annexure-II petition. Therefore it cannot be held that there was laches on the part of the revision petitioner in moving the court with the prayer that contained in Annexure-II. It is thereafter, the case was adjourned for filing the objection of the prosecution. So, the material or circumstances, that involved in the case would show that the revision petitioner was not protracting the trial or Annexure-II was filed vexatiously. Therefore, it cannot be said that Annexure-II petition was filed for protracting the trial or for defeating the ends of justice. 12. If the weighing balance, which claimed to have been provided by the police department, and allegedly used by PW1 for weighing the seized ganja, have no capacity to weigh the substance having more than 100 CRLRP 1872/10 -:12:- grams weight, that is a vital fact which will go certainly in favour of the defenece and against the prosecution. It is also relevant to note that if the vehicle allegedly used by PW1 for reaching the place of occurrence and weighing the contraband article, is not available at the relevant time, certainly, the same will also go against the prosecution and in favour of the accused. Thus, according to me, some of the witnesses cited and the things and documents sought to be produced are very relevant and material and the same ought to have been considered judiciously. Thus, according to me, no inference can be drawn that Annexure-II was filed vexatiously. 13. In the light of the above discussion and the facts and circumstances involved in the case, the interest of justice demands to allow Annexure-II petition filed under section 233 Cr.P.C. In view of the decisions referred above , the trial court can decline such a request only on satisfaction of any of the two grounds contained in Section 233(3) Cr.P.C. But in the impugned order, no endeavor was made by the learned Sessions Judge to CRLRP 1872/10 -:13:- assign any reason for her satisfaction of the grounds mentioned in section 233(3) Cr.P.C. Therefore, the impugned order is liable to be set aside. In the light of the facts and circumstances involved in the above case and the materials and discussions referred above, I am of the view that the examination of witnesses Nos.1 and 2 and to summon items mentioned as 1(a), 2 and 3(b) in Annexure-II and the evidence thereon, according to me are essential for a just and proper decision of the case. 14. In this juncture, it is pertinent to note that the 3rd witness shown in Annexure-II petition and Schedule is the S.I. of Police, Perumbavoor Police station who was already examined as PW1 for the prosecution. The Apex Court, in the decision in State of Madhya Pradesh v.Badri Yadav (2006 (3) KLT 205 (SC), has held: “14. S.233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under S.311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the CRLRP 1872/10 -:14:- discretionary power of the court in case such evidence appears to it to be essential for a just decision of the case. Under S.233 Cr.P.C., the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-s.(3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of S.233 Cr.P.C.” In the light of the above decision, and the fact that the 3rd witness cited in Annexure-II petition had already been examined as PW1, he cannot be juxtaposed as defence witness and be examined as defence witness on behalf of the accused. The facts and circumstances involved in the present case are entirely different from what involved in the reported cases. In the present case, the defence, prior to Annexure-II petition, no application was filed to recall PW1. On the other hand, it can be seen that the defence had already taken steps to produce the things CRLRP 1872/10 -:15:- and documents, which sought to be produced in Annexure- II, on an earlier occasion by filing Crl.M.P.No.506/10 so as to confront the same with PW1 and to cross-examine him, when the prosecution examined him. But the said request was rejected. Under the above particular circumstances involved in the case, I am of the view that the S.I of Police Perumbavoor Police station cited as a witness in Annexure-II petition cannot be examined as defence witness, on the other hand, the defence is entitled to get cross-examined the said witness, who was examined as PW1, by recalling the said witness under section 311 of Cr.P.C. I am sure that if the defence approaches the trial court with such a prayer, the same will be considered on merit and a proper decision will be taken. In the result, this Crl.R.P is disposed of setting aside the impugned order to the extent it declined the request of the revision petitioner under item No.1(b), item Nos.2 and 3(b) in the witness list and subject to the above observation. The trial court is directed to take steps and issue summons under section 233 Cr.P.C except CRLRP 1872/10 -:16:- against the 3rd witness in item No.3 and items Nos. 1(a), 3 (a) and 3(c) of Annexure-II list, in the light of the above findings. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRLRP 1872/10 -:17:- O.P.No. JUDGMENT Dated:..