Kerala High Court
Arshad.P.A vs State Of Kerala on 26 November, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
Crl.MC.No.8367 OF 2019(E)
AGAINST THE ORDER IN CRMP 725/2019 DATED 01-11-2019 OF SPECIAL
COURT (NDPS ACT CASES), THODUPUZHA
CRIME NO.3/2017 OF EXCISE RANGE OFFICE, KURUVILANGADU
PETITIONER/ACCUSED:
ARSHAD.P.A.
AGED 19 YEARS
S/O.ANSAR.P.K., PARUTHICKAL HOUSE, PALLURUTHY KARA,
RAMESWARAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE/COMPLAINANT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031. (CRIME NO.3/2017 OF EXCISE RANGE
OFFICE, KURUVILANGADU)
SRI C K PRASAD-PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.8367 OF 2019 2
ORDER
The petitioner is the accused in the case S.C. No.7/2018 on the file of the Court of the Special Judge for the N.D.P.S Act cases, Thodupuzha.
2. According to the prosecution case, on 28.02.2017, at about 08.30 hours, the Excise Inspector of the Kuruvilangadu Excise Range Office intercepted the petitioner while he was walking through a public road. On conducting search of the body of the petitioner, a plastic cover containing 1.080 kgms. of ganja was found in his possession. The Excise Inspector seized the ganja and arrested the petitioner and registered the case. After completing the investigation, final report was filed against the petitioner for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
3. According to the petitioner, when the prosecution evidence was over and when the case was posted for defence evidence, he filed Annexure-II application purported to be under Sections 91 and 311 Cr.P.C for recalling the witness examined by the prosecution as PW5 and to cause production of the relevant Crl.MC.No.8367 OF 2019 3 portion of the General Diary which contains the recording of information under Section 42(1) of the Act.. As per Annexure-III order, the learned Special Judge dismissed the aforesaid application. Annexture-III order is challenged in this petition filed under Section 482 Cr.P.C.
4. Heard learned counsel for the petitioner and the learned Public Prosecutor.
5. Though learned counsel for the petitioner has submitted that Annexure-II is the application filed by the petitioner for recalling the witness and production of the document, it is seen that it is only an application to advance the hearing of the case. However, it is evident from Annexure-III order that the petitioner had filed an application for recalling the witness (PW5) and to cause production of the document.
6. The relevant portion of Annexure-III order reads as follows:
" 4. According to the petitioner, PW5 has stated that he recorded the information which he had received from CW2 in the General Diary. Though PW5 was examined the learned counsel omitted to put certain questions regarding the General Diary entry dated 28.02.2017.
5. The prosecution has produced the information in writing and Section 42(2) report. Ext. P4 is a copy of Crl.MC.No.8367 OF 2019 4 information in writing. Ext.P4 would show that PW5 recorded the information and sent Section 42(2) report to his immediate official superior. The petitioner had got ample opportunity to cross-examine the witness. According to me, as the prosecution has produced the information in writing and Sec.42(2) report, production of GD to prove the fact that PW5 recorded the information in writing is not necessary. I think the application is only to drag on the matter. Under that circumstances, I am not inclined to allow the petition."
7. Learned counsel for the petitioner submitted that the petitioner only wants to prove that the evidence given by PW5 that the information was recorded in the General Diary is not true. On the other hand, learned Public Prosecutor would submit that the evidence which is relevant and material has been already given by PW5 and there is no necessity to recall him. It is also contended that no useful purpose would be served by recalling this witness and proving the entry in the General Diary.
8. While dismissing the application filed by the petitioner, the learned Special Judge has observed that the petitioner had got ample opportunity to cross-examine the witness (PW5) and that proof of entry in the General Diary with regard to the information obtained by PW5 is not relevant and necessary.
9. The question whether the evidence proposed to be Crl.MC.No.8367 OF 2019 5 adduced by the accused is useful for him or not cannot be decided by the court at the stage of deciding the application for adducing the evidence. It is true that the petitioner had opportunity to cross-examine PW5. But, the fact remains that he had no opportunity to cross-examine him with reference to the entries in the General Diary.
10. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to denial of fair trial. Recalling and further cross-examination of the witness (PW5) would not have taken much time. No prejudice would have been caused to the prosecution by allowing the application. Disallowing the application has caused much delay. Learned Public Prosecutor has no case that the entry in the general diary is something which shall be denied access to the defence.
11. In the aforesaid circumstances, I am of the view that it is only proper to give the petitioner an opportunity to cross-examine the witness (PW5) with reference to the entries contained in the General Diary for the date 28.02.2017, relating to the present case.
12. Consequently, the petition is allowed. Annexure-III order is set aside. Learned Special Judge shall permit the petitioner to recall the witness (PW5) with a direction to produce an attested Crl.MC.No.8367 OF 2019 6 copy of the General Diary for the date 28.02.2017 which is kept in the Kuruvilangadu Excise Range Office. The petitioner shall be permitted to cross-examine PW5 with reference to the entries in the General Diary on that date relating to the present case. It is made clear that further cross-examination of PW5 shall be restricted as stated above. It is also made clear that this order is passed on the basis of the submission made by the learned counsel for the petitioner that the final judgment in the case is not yet delivered by the Special Judge.
Sd/-
R. NARAYANA PISHARADI JUDGE smf Crl.MC.No.8367 OF 2019 7 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE FINAL REPORT IN CRIME NO.3/2017 OF EXCISE RANGE OFFICE, KURUVILANGADU, PRESENT SC.NO.7/2018 ON THE FILE OF THE SPECIAL COURT FOR THE TRIAL OF NDPS CASES, THODUPUZHA.
ANNEXURE II TRUE COPY OF THE PETITION DATED 25.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL COURT FOR THE TRIAL OF NDPS CASES, THODUPUZHA IN SC (NDPS) 7/2018.
ANNEXURE III CERTIFIED COPY OF THE ORDER DATED 1.11.2019 IN CRL.MP.NO.725/19 PASSED BY THE COURT OF SPECIAL JUDGE FOR NDPS ACT CASES, THODUPUZHA.
smf //TRUE COPY// P A TO JUDGE