Madras High Court
Md. Muzam @ Thambi vs The Intelligence Officer, N.C.B. on 21 September, 2004
Equivalent citations: 2004(5)CTC568
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. Petition filed under Section 482, Crl.P.C. to set aside the order passed by the Principal Special Judge in Crl.M.P. No. 2137 of 2004 in C.C. No. 254 of 2002 dated 6.8.2004 and direct the respondent to produce the Log Book of Mini Bus bearing Registration No. TN-09-C-3118 before this Court to prove his innocence.
2. Petitioner is the first accused. The relevant facts necessitated for disposal of this petition could briefly be stated thus : -- Based on specific information received on 20.2.2002 that A.1-Md. Muzam @ Thambi and A.2 Lyndon Albert @ Raj were carrying 2.5 kg of Heroin, Officers of N.C.B., Chennai maintained surveillance at Chennai Central Railway Station on 21.2.2002. A.1 and A.2 alighted from the Train-Jaipur Express. On enquiry and being searched, they were found to be in possession of 2.5 kg of Heroin. Personal search of the persons resulted in the seizure of Rs. 3,550. On the complaint, case has been registered against the accused under Sections 8(c) r/w 21, 28 and 29 of N.S.P.S. Act, 1985 as amended in 2001. A.1 and A.2 are facing the trial for the aforesaid offences.
3. In this case, evidence was closed. After the evidence was closed, when the matter was pending for arguments, petitioner/A.1 filed a petition under Section 91, Crl.P.C. in Crl.M.P. No. 2137 of 2004 calling upon the respondent/N.C.B., to produce Log Book of the Mini Vehicle bearing Registration No. TN-09-C-3118 in which the Search Party travelled. Counter was filed by the Respondent/N.C.B., stating that no Log Book is available for the aforesaid vehicle.
4. Upon hearing the parties, the learned Special Judge has dismissed the petition finding that "When no Log Book is available, no direction could be issued to N.C.B. for the production of the same".
5. Aggrieved over the dismissal of the petition filed under Section 92, Crl.P.C. in calling for the Log Book, Petitioner/A. 1 has filed this petition invoking inherent powers of this Court. Earlier, for the same relief, Petitioner/A.1 has filed Crl.R.C. No. 1416 of 2004 and, the same was dismissed as withdrawn. Later this petition in Crl.O.P. No. 29424 of 2004 is filed.
6. On behalf of the petitioner/A.1, it was contended that when P.W.1 has admitted about the availability of the Log Book the respondent is bound to prove the same. Further submitting that as per Section 54 of N.D.P.S. Act, when burden is on the accused to prove his innocence, every possible opportunity is to be afforded to the accused to prove his defence. Assailing the prosecution case, submitting that the Log Book would be a valuable piece of evidence in setting forth the defence, it is contended that the accused is deprived of the opportunity to go through the Log Book and establish his defence.
7. Countering the arguments, Mr. P.N. Prakash, learned Special Public Prosecutor for N.D.P.S. Cases submitted that the case of the prosecution rests upon the material evidence, like P.W.l's evidence and the Panchanama and such other material evidence and not on the trivial aspects like Log Book of the Vehicle and the non-production of the same would not in any way affect the right of the accused.,
8. Drawing the attention of the Court to the averments in the petition filed under Section 91, Crl.P.C. the learned Special Public Prosecutor has further submitted that the petitioner has nowhere pointed out the relevancy, necessity or desirability of the Log Book. Drawing the attention of the Court to Om Prakash Sharma v. Central Bureau of Investigation, Delhi, , the learned Special Public Prosecutor has further submitted that in the absence of such "Relevancy, necessity or desirability" being made out, the Trial Court has rightly dismissed the petition and that there is no reason warranting interference.
9. In dismissing the petition filed under Section 91, Crl.P.C. whether there is any improper exercise of discretion by the learned Special Judge ? is the only short point arising for our consideration in this petition.
10. Even at the outset, it is to be pointed out that the Petitioner/A.1 has suppressed the material fact. The trial proceedings have also come to an end. P.W.I was examined on 19.6.2003 and cross examined on 15.7.2003. P.W.2 was examined on 5.8.2003 and cross examined on 26.8.2003. All prosecution evidence was closed and the accused were questioned under Section 313, Crl.P.C. The evidence of the defence witness was also closed. At the time when the case was posted for arguments, this petition was filed on 2.8.2004 suppressing the conclusion of the trial proceedings and that the case is being posted for arguments. The petitioner/A.1 invoking the inherent powers ought to have placed the actual stage of the trial proceedings. It was not proper on the part of the petitioner to suppress the same.
11. P.W.1--Nalini Rajan was examined on two hearings even on 19.6.2003 and cross examined on 15.7.2003. If really the petitioner/A.1 has felt that the Log Book is very much essential the petition ought to have been filed then and there. But that was not to be so. P.W.I being the Officer may not have known the maintainability of the Staff Car. As per Swamy's Staff Car Rules, 40-A, the Log Books may be preserved for a period of five years reckoned from the date of the last entry in them or one year after their examination in local audit, whichever is earlier, provided, however, that no Log Book becoming due for destruction after the stipulated period, should be destroyed until the settlement of all audit objections relating to any entry therein. This occurrence, being in 2002, perhaps the Log Book of the Vehicle might have been destroyed which may not have been to the knowledge of P.W.1 In the Counter Statement filed by the Department, the Department has clearly stated as to the non-availability of the Log Book and the Petitioner/A.1 cannot insist upon the production of the non-available document.
12. Further, as rightly submitted by the learned Special Public Prosecutor, the case of the prosecution in establishing the guilt of the accused does not depend upon the wisdom of the driver in not maintaining the Log Book. The guilt of the accused is to be established by the evidence of P.Ws.1 and 2, Panchanama and other material evidence. Since there was no "Necessity or Desirability" for the said Log Book, the learned Special Judge has rightly dismissed the petition filed under Section 91, Crl.P.C. calling for the Log Book.
13. It is purely the discretion of the trial Courts to exercise such powers in calling for the documents under Section 91, Crl.P.C. Pointing out that the Superior Court cannot lightly or in a routine fashion intervene in such exercise of discretion of the trial Court, in , the Supreme Court has held thus:
"The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretized in favour of the accused".
14. When the Trial Court has felt that the Log Book is not necessary (because of its non-availability), the High Court cannot lightly interfere with the same in calling for the Log Book. It is also to be pointed out that the petition filed by the petitioner/A.1 does not also indicate the "Necessity or desirability of the Log Book, which had been summoned under Section 91, Crl.P.C. All that has been averred is that the petitioner/A.1 is in requirement of the Log Book to establish his defence. When he has not stated the "Necessity" or "Desirability", the learned Special Judge has rightly dismissed the petition.
15. Section 91, Crl.P.C. does not give an absolute right for the accused to ask for "summoning any document and it is only when the Court on a consideration of the facts and circumstances, considers that the production of the document or thing sought for is necessary or desirable for the purpose of the trial, enquiry or proceedings, would summon the same but not otherwise. At this stage, when the defence was closed and the matter is posted for arguments, the accused cannot insist upon production of the document - Log Book, which was not available with the Department. No reasonable or valid grounds are put forth by the accused warranting interference in the impugned order. This petition is bereft in merits and is bound to fail.
16. In the result, the petition is dismissed. Consequently, connected Crl.M.P. is also dismissed.