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Crl. Rev. P. 449/2013 Page 1 HIGH COURT OF DELHI
CRL.REV.P. 449/2013
NARCOTICS CONTROL BUREAU ..... Petitioner
Through: Mr. B.S.Arora, Special Public Prosecutor with Mr. Mohit Arora, Advocate
CRL.REV.P. 449/2013
NARCOTICS CONTROL BUREAU ..... Petitioner
Through: Mr. B.S.Arora, Special Public Prosecutor with Mr. Mohit Arora, Advocate
VERSUS
LAYA EMILYN MANANQUIL ..... Respondent
Through: Advocate (appearance not given)
Through: Advocate (appearance not given)
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 23.08.2013
Petitioner’s application under Section 311 Cr.P.C. to recall Pramod
Kumar (PW-12) to confront him with the incriminating portions of his statement under Section 67 of Narcotic Drugs and Psychotropic Substances
Act, 1985 stands declined by the trial court vide impugned order 28th May, 2013 while relying upon Apex Court decision in Hanuman Ram v. State of
Rajasthan & Ors. JT 2008 (11) SC 154.
Special Public Prosecutor for petitioner assails impugned order by submitting that petitioner is not filling up the lacunae as impugned order erroneously notes and reliance placed upon by trial court on Apex Court decision in Hanuman Ram (supra) is misplaced as in the said case the witness was sought to be recalled to confront the said witness with statements recorded in other proceedings. On behalf of petitioner, reliance
2013:DHC:4181 Crl. Rev. P. 449/2013 Page 2 is placed upon Apex Court decision in Rajender Prasad v. The Narcotic Cell through its Officer in Charge, Delhi JT 1999 (4) SC 496, wherein it has been pertinently observed as under:-
“It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under
Section 165 of the Evidence Act by saying that the court could not „fill the lacuna in the prosecution case‟. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage „to err is human‟ is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.”
Learned counsel for respondents supports the impugned order and submits that now the case is fixed for final arguments and entertaining of this application at the fag end of trial is unwarranted as petitioner cannot be allowed to fill up the lacunae and the statement of Pramod Kumar (PW-12) under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 has already been exhibited and there is no point in recalling him and by doing so, the trial in this case will be delayed to the detriment of respondents, who are in custody.
Crl. Rev. P. 449/2013 Page 3 Upon hearing and on perusal of the impugned order, material on record and the decisions cited, I find that the trial court has erred in placing reliance upon Hanuman Ram (supra) as in the said case witness was sought to be recalled to confront him with the statement made by him in another proceedings whereas it is not so in the instant case. The ratio of Apex Court in Rajender Prasad (supra) squarely applies as it is stated on behalf of petitioner that due to inadvertence Pramod Kumar (PW-12) could not be confronted with the incriminating portions of statements under Section 67 of
Narcotic Drugs and Psychotropic Substances Act, 1985 as he has taken divergent stand in his cross-examination done by the defence.
In the considered opinion of this Court if the witness Pramod Kumar
(PW-12) is not recalled and not confronted with certain passages of his statement made under Section 67 of Narcotic Drugs and Psychotropic
Substances Act, 1985, it would result in miscarriage of justice. For the just decision of this case petitioner’s application deserve to be allowed.
Petitioner is permitted to confront Pramod Kumar (PW-12) with the incriminating portions of his statement recorded under Section 67 of
Narcotic Drugs and Psychotropic Substances Act, 1985 in relation to what he has disclosed in cross-examination by defence.
Accordingly, this petition is allowed and impugned order of 28th May, 2013 is set aside. Petitioner’s application under Section 311 Cr.P.C. is allowed on the undertaking by petitioner’s counsel that Pramod Kumar
(PW-12) will be produced before the trial court on the next date of hearing i.e. 27th August, 2013, so that the proceedings in this case do not get unnecessarily delayed. It is made clear that if Pramod Kumar (PW-12) is not produced on that day, his presence would be obtained on a short date so
Crl. Rev. P. 449/2013 Page 4 that judicial custody of respondents is not unnecessarily prolonged.
In the aforesaid terms, this petition is disposed of.
Trial court be apprised of this order forthwith.
Copy of this order be dasti under the signatures of Court Master.
(SUNIL GAUR)
Judge AUGUST 23, 2013 vn
Petitioner’s application under Section 311 Cr.P.C. to recall Pramod
Kumar (PW-12) to confront him with the incriminating portions of his statement under Section 67 of Narcotic Drugs and Psychotropic Substances
Act, 1985 stands declined by the trial court vide impugned order 28th May, 2013 while relying upon Apex Court decision in Hanuman Ram v. State of
Rajasthan & Ors. JT 2008 (11) SC 154.
Special Public Prosecutor for petitioner assails impugned order by submitting that petitioner is not filling up the lacunae as impugned order erroneously notes and reliance placed upon by trial court on Apex Court decision in Hanuman Ram (supra) is misplaced as in the said case the witness was sought to be recalled to confront the said witness with statements recorded in other proceedings. On behalf of petitioner, reliance
2013:DHC:4181 Crl. Rev. P. 449/2013 Page 2 is placed upon Apex Court decision in Rajender Prasad v. The Narcotic Cell through its Officer in Charge, Delhi JT 1999 (4) SC 496, wherein it has been pertinently observed as under:-
“It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under
Section 165 of the Evidence Act by saying that the court could not „fill the lacuna in the prosecution case‟. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage „to err is human‟ is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.”
Learned counsel for respondents supports the impugned order and submits that now the case is fixed for final arguments and entertaining of this application at the fag end of trial is unwarranted as petitioner cannot be allowed to fill up the lacunae and the statement of Pramod Kumar (PW-12) under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 has already been exhibited and there is no point in recalling him and by doing so, the trial in this case will be delayed to the detriment of respondents, who are in custody.
Crl. Rev. P. 449/2013 Page 3 Upon hearing and on perusal of the impugned order, material on record and the decisions cited, I find that the trial court has erred in placing reliance upon Hanuman Ram (supra) as in the said case witness was sought to be recalled to confront him with the statement made by him in another proceedings whereas it is not so in the instant case. The ratio of Apex Court in Rajender Prasad (supra) squarely applies as it is stated on behalf of petitioner that due to inadvertence Pramod Kumar (PW-12) could not be confronted with the incriminating portions of statements under Section 67 of
Narcotic Drugs and Psychotropic Substances Act, 1985 as he has taken divergent stand in his cross-examination done by the defence.
In the considered opinion of this Court if the witness Pramod Kumar
(PW-12) is not recalled and not confronted with certain passages of his statement made under Section 67 of Narcotic Drugs and Psychotropic
Substances Act, 1985, it would result in miscarriage of justice. For the just decision of this case petitioner’s application deserve to be allowed.
Petitioner is permitted to confront Pramod Kumar (PW-12) with the incriminating portions of his statement recorded under Section 67 of
Narcotic Drugs and Psychotropic Substances Act, 1985 in relation to what he has disclosed in cross-examination by defence.
Accordingly, this petition is allowed and impugned order of 28th May, 2013 is set aside. Petitioner’s application under Section 311 Cr.P.C. is allowed on the undertaking by petitioner’s counsel that Pramod Kumar
(PW-12) will be produced before the trial court on the next date of hearing i.e. 27th August, 2013, so that the proceedings in this case do not get unnecessarily delayed. It is made clear that if Pramod Kumar (PW-12) is not produced on that day, his presence would be obtained on a short date so
Crl. Rev. P. 449/2013 Page 4 that judicial custody of respondents is not unnecessarily prolonged.
In the aforesaid terms, this petition is disposed of.
Trial court be apprised of this order forthwith.
Copy of this order be dasti under the signatures of Court Master.
(SUNIL GAUR)
Judge AUGUST 23, 2013 vn
JUDGMENT