1 S. B. CRIMINAL MISC. PETITION NO.1425/2006 RAJU @ RAJENDRA SINGH V. THE STATE OF RAJASTHAN. DATE OF ORDER ::: 17/12/2008 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Ramesh Purohit, for Petitioner (s). Mr. V. R.Mehta, Public Prosecutor. Petitioner is facing trial for the charge of offence of Section 8 read with Section 18, NDPS Act. Learned Special Judge, as per order of 7.8.06, accepted prosecution's application under Section 311, Cr.P.C., to re-call prosecution evidence PW 8, for further examination. Aggrieved of the above order of accepting prosecution's application, is this petition and petitioner is requesting reversal of this order dated 7.8.06. Learned counsel for the petitioner argued that charge-sheet was submitted in April, 03 and prosecution evidence completed in the month of August, 04 and final arguments began on 29.1.05 - when almost arguments were complete, prosecution moved first application under Section 311, Cr.P.C., and impugned order allows 4th such application. Argued that (i) first application moved on 3.2.05, allowed vide order dated 17.2.05. (ii) Second application submitted on 25.2.05, allowed vide order dated 17.3.05. (iii) Third application, submitted on 4.11.05, allowed vide order dated 15.4.05, albeit on cost. (iv) 4th application, submitted on 15.7.06, allowed vide order under challenge dated 7.8.06. Learned counsel argued that (i) submission of such application, after final arguments, is filling up of prosecution lacuna. (ii) Non- compliance of procedural provisions of NDPS Act are comparatively of more impact, so every time, application to fill up whatever lacuna found, is prejudicial to accused. (iii) Successive applications – this 4th one, being allowed, is abuse of process of law. (iv) By the impugned order of 2 7.8.06, carbon copy of a document is allowed which does not bear the seal and signature of the concerned authority. (v) This document was not a part or portion of C/S and - PW 8 never mentioned about it in his statement. Argued that provisions of Section 311, Cr.P.C., cannot be permitted for filling up the lacuna of the prosecution and the document allowed is altogether a new document. As no reason assigned for non- production of this document earlier, particularly when as above, three earlier prosecution applications under Sections 311, Cr.P.C., allowed. In support of contentions, reliance placed on (i) 1996 Cr.L.R.(Raj.) 249, Narayan Das s/o. Dwarka Das v. Union of India, & (ii) 2003 (1) RCC 386, Harlal @ Pema Ram v. State of Rajasthan. Learned Public Prosecutor repelling above submissions, submitted that powers of Court under Section 311, Cr.P.C., are unfettered one and normally, necessarily are to be exercised, if necessary for securing the ends of justice. Argued that though this is 4th application, but, in effect, no new point or evidence or is being introduced. Also argued that only document allowed vide impugned order of 7.8.06 is of 24.4.03. Considered arguments and perused all the four orders. In the instant case, the prosecution's 4th application under Section 311, Cr.P.C., and earlier three all after completion of evidence is allowed which seems to be peculiar one. A glance at the orders, it seems that prosecution evidence was completed on 5.8.08 and final arguments began on 29.1.05 – matter pertains to recovery of 12.900 kg of opium being transported – final arguments legal on 29.1.05 and a glance at orders reveals that (1) vide order dated 17.2.05, is allowed application dated 3.2.05 – order is that presented document that is Raznamcha entries are allowed to be taken on record. (2) Order dated 17.3.05 – Roznamcha taken on record vide earlier order of 17.2.05 is allowed to be proved by recalling PW 8. (3) Order of 15.4.05 – accepting application under Section 311 (4) of 4.11.05, allowed is exhibition entry No.487 of Rojnamcha as in earlier application of 24.4.03, entry number was wrongly mentioned as 685. (4) Order dated 7.8.06 – the order under challenge as per which 3 certain document alleged to be carbon copy of a order dated 24.4.03 – and issued by Additional S.P., Pratabgarh is allowed and simultaneously, allowed recall of PW 8. As such though different are the orders, but in effect, it seems that first three orders are only in relation to Roznamcha dated 24.4.03 – orders are only in context of Roznamcha of 24.4.03 and the same is Roznamchan and the same is the witness and the same seem to be the matter of evidence. So, first three orders are in continuation of first one regarding a document. From the impugned order dated 17.8.06, it is apparent that the document sought to be produced is on the point whether or not PW 8 was SHO at the concerned police station. The document is said to be issued by and from a Government office. It does not appear that by the document any new facts or a fact either to conceal as one is sought to be brought on record. Since trial proceedings are on, it may not be desirable to go into alleged details. The impugned order also mentions that related other questions, challenging the document and its whereabouts are open. Certainly, successive and 4th application under Section 311, Cr.P.C, shows casual and not upto mark on the part of the prosecution, but, in this case, this cannot be reason for revoking the impugned order. Accordingly, the petition is rejected. The order shall not preclude learned Lower Court from giving any such directions which may be expedient for early disposal so as to finish evidence as far as possible within 30 days of the date of receipt of the order. Observations made in this order are exclusively in context and for the purpose of disposal of this petition. The petition stands rejected. (C. M. TOTLA), J. scd 4