Bombay High Court
Vaijnath S/O. Ganeshrao Jadhav And Anr vs The State Of Maharashtra on 2 March, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 380 OF 2020
1. Vaijnath S/O Ganeshrao Jadhav,
Aged 29 years, Occupation Business,
R/o Dargah Road, Parbhani Tq. And
Dist. Parbhani.
2. Govind s/o Kondiba Gote,
Aged 30 years, occupation Business,
R/o Kakade Nagar, Parbhani Tq. And
Dist. Parbhani. ...Petitioners.
(Orig.Appellants/Accused)
VERSUS
The State of Maharashtra,
Arun s/o Sakharam Godse,
Drugs Inspector, Food and Drug
Administration, Parbhani. ...Respondent.
.......
Advocate for Petitioners : Mr. A. T. Jadhavar.
APP for Respondent-State: Mr. B. V. Virdhe.
.......
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 02-03-2020.
ORAL ORDER :
1. Present writ petition has been filed challenging the order passed below Exhibit 15 in Criminal Appeal No.73 of 2016, dated 14-11-2019, by learned Additional Sessions Judge, Parbhani. The said application Exhibit 15 was filed under Section 391 of the Code of Criminal Procedure for ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 ::: 2 WP 380-2020 adducing additional evidence at the appellate stage by the present petitioners who are the original accused persons.
2. The petitioners faced trial for the offence punishable under Section 27 (b) (ii) r.w. Section 18 (c) and Rule 64 of the Drugs and Cosmetic Act, 1940 before the learned Chief Judicial Magistrate, Parbhani and by Judgment and order dated 06-12-2016 in Regular Criminal Case No.457 of 2014, they have been convicted for the said offence and have been directed to suffer rigorous imprisonment for two years and pay fine of Rs.10,000/- each, in default to suffer rigorous imprisonment for three months. The petitioners have challenged the said conviction in the said Criminal Appeal No.73 of 2016 which is pending before the learned Additional Sessions Judge, Parbhani.
3. Application Exhibit 15 was filed contending that the appellants had taken specific defence that they have surrendered the licence of medical shop before the Drugs Department prior to the date of alleged offence, however they failed to file document before the Trial Court in that regard. They have received the documents under Right to Information Act and they intend to produce those documents and, therefore, they sought permission under Section 391 of Code of Criminal procedure.
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4. The learned Additional Public Prosecutor had strongly opposed the application stating that the appellants had the opportunity to file those documents before the Trial Court which they have not done and, therefore, the application is devoid of any merit. After hearing both sides, the learned Additional Sessions Judge, Parbhani has rejected the said application on 14-11-2019. Hence, present writ petition invoking the constitutional powers of this Court under Article 226 and 227 of the Constitution of India for setting aside the said order and allowing the petitioners to produce the said documents.
5. Heard learned advocate Mr. A. T. Jadhavar for the petitioners and learned Additional Public Prosecutor Mr. B. V. Virdhe for respondent- State.
6. At the outset it is to be noted that, after hearing the submissions on behalf of the petitioners, it is not even necessary to call any record as such and take a probe in the matter. Here when the query was made, as to why these documents were not produced before the learned Trial Judge, the answer that was given on behalf of the petitioners was that, those documents were not available with the petitioners and they have been sought under the Right to Information Act. Interesting point to be noted is that, the covering letter with which ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 ::: 4 WP 380-2020 the documents were supplied to the petitioners by the Public Information Officer of the Drugs Department is dated 18-07-2016. The learned Trial Judge pronounced its Judgment on 06-12-2016. That means, before the pronouncement of the Judgment by the Trial Judge, the documents were in the custody of the present petitioners, yet they did not produce it on record. Further in the application Exhibit 15 itself, this fact is mentioned in para No.3 as follows ;
"That the appellants have documents received from the Drugs Department under the Right to Information Act dated 18-07-2016. It is pertinent to note that, those documents are received well prior to Judgment passed by Trial Court."
Simple question therefore arises, as to why those documents were not produced before the Trial Court. When that opportunity was further available in application Exhibit 15 itself, to give that reason, the petitioners have not whispered about it.
7. The petitioners have intentionally not produced the evidence that was recorded before the Trial Court along with this writ petition. It could have given reason as to what defence they had raised before the Trial Court. Statement of both the petitioners under Section 313 of Code of Criminal Procedure has been produced on record and to question No.13, "why witnesses are deposing against you ?," the answer given is, "we demanded medical shop licence to Drug Inspector ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 ::: 5 WP 380-2020 Godse, he has not issue licence, we made complaint to Commissioner, who issue licnece, thereby we closed the medical shop, hence we are falsely implicated." It appears that, there were talking about issue of licence when it ought to have been regarding surrender of licence. Further the learned Additional Sessions Judge has observed after going through the record and proceedings that, nowhere it is seen that the defence of the accused was that they had closed the medical shop and, therefore, some remaining medicines had kept which were to be returned, were seized by the complainant and, therefore, offence charged against the accused was not attracted. When the complainant was in the witness box and the petitioners had the opportunity to cross- examine him, they could have asked about the surrender of licence. When they themselves had given the application for surrender of licence, which has stated to be on 09-04-2014, was within their knowledge. Therefore, along with the writ petition it was necessary for the petitioners to produce the evidence to show that such defence was taken. As aforesaid no specific date has been given by the petitioners in their statement under Section 313 of Code of Criminal Procedure regarding their application for cancellation of the licence and also the order that was passed by the drug authorities. When all those documents were in the custody of petitioners, much prior to the Judgment which was delivered by the Trial Court itself, and no ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 ::: 6 WP 380-2020 explanation is forthcoming from the petitioners, the learned Additional Sessions Judge was justified in not exercising the discretion that is with him under Section 391 of Code of Criminal Procedure to allow the petitioners to lead any evidence.
8. The learned advocate appearing for the petitioners has relied on, Brig. Sukhjeet Singh (Retd.) MVC v. State of Uttar Pradesh and Others, reported in 2019 SCC Online SC 72, wherein after taking into consideration the earlier pronouncements, the Hon'ble Apex Court had allowed the application under Section 391 of Code of Criminal Procedure by observing as under;
"14. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos.8 and 9 :--
"8................... Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 ::: 7 WP 380-2020 analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which ti is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise............"
"16. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people."::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 :::
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9. The law laid down by the Hon'ble Apex Court cannot be denied. However, it is to be noted in this case that, when the application under Section 391 of Code of Criminal procedure was filed, it was stated that the trust deed was registered with the Registrar of Delhi and the photo copy of the trust deed is available on the record of the lower court, and it was also mentioned in the impugned Judgment. The certified copy was filed along with the application with a prayer that the document may kindly be taken on record and certified copy of the resolution passed by the trustees was filed which was prayed to be taken on record. So also basic foundation was led before the Trial Court itself and, therefore, in view of the same it was observed that, for the ends of the justice the said discretion ought to have been exercised by the learned Appellate Court as well as the High Court ought to have allowed that application. Here though the petitioners who were having the documents in their possession did not even lay the foundation and had not explained as to why they had not produced it before the Trial Court, and when the observation was specifically made by the Trial Court that those documents ought to have been produced, it appears that thereafter this attempt has been made. The foundation could have been laid in cross-examination of the witnesses who were examined on behalf of the prosecution also which appears to be not the case here. ::: Uploaded on - 04/03/2020 ::: Downloaded on - 05/03/2020 00:46:15 :::
9 WP 380-2020 Under such circumstance, no case is made out to exercise the constitutional powers of this Court under Article 226 and 227 of the Constitution of India as the learned Additional Sessions Judge was perfectly justified in rejecting the said application. Under such circumstance, writ petition stands rejected and disposed of accordingly.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-.
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