SANEER Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal has been filed challenging the conviction and sentence imposed on the appellant in S.C.No.167 of 2018 on the file of the Additional District and Sessions Court-VII, Ernakulam.

(2.) The learned counsel appearing for the appellant submits that, apart from the contentions taken on the merits of the matter, the appeal is liable to be allowed on a short point. It is submitted that the proceedings before the trial Court will indicate that on 6/3/2025, CWs 2 and 8 were examined as PWs 3 and 4, and evidence for the prosecution was closed and the case was posted on 11/3/2025 for examination u/s 313 Cr.PC. It is submitted that on 11/3/2025, the prosecution had filed a petition for reopening the evidence and on 19/3/2025, the matter was posted to 24/3/2025 for the examination of the additional witness cited for the prosecution. It is submitted that on 24/3/2025, the additional witness was not present and the matter was adjourned to 28/3/2025. It is submitted that on 28/3/2025, the appellant/accused was present and PW6 (additional witness) was examined, and the accused was also further questioned u/s 313 Cr.PC. It is submitted that on 28/3/2025, the Court records that there is no ground to acquit the accused u/s 232 Cr.PC and thereafter proceeded to record that the counsel for the accused had submitted that there is no evidence for the defence and that he is ready for arguments in the case, and thereafter the Court heard the case and posted the matter for judgment on 3/4/2025. It is submitted that on 3/4/2025, the judgment was pronounced finding the appellant/accused guilty of the offence punishable u/s 22(c) of the NDPS Act and convicting him for the offence u/s 235(2) Cr.PC. It is submitted that on the same day, the matter was posted at 2.30 p.m. for hearing the accused on the matter of sentence, and the appellant/accused was sentenced to rigorous imprisonment for 10 years and to a fine of Rs.1.00 lakh. It is submitted that the learned counsel for the appellant/accused has not made any submission before the trial Court that there is no defence evidence. It is submitted that going by the provisions of s.233 Cr.PC, after the prosecution evidence was closed, the Court ought to have posted the case for defence evidence. It is submitted that the failure to post the case for defence evidence and taking the matter as heard on the date on which the last prosecution witness was examined was not proper.

(3.) The learned Public Prosecutor submits that no relief can be granted to the appellant on the above ground, now projected before the Court. The learned Public Prosecutor submits that a perusal of the proceedings sheet in SC No.167/2018 does not indicate that the Court had posted the matter for defence evidence. It is submitted that though to ensure a fair trial and to ensure that no complaints of this nature are made at a later stage, it would always be appropriate that the Court had posted the case for defence evidence and had then recorded that there is no defence evidence. It is submitted that in the facts of the present case, it appears that on the day on which the last prosecution witness was examined as PW6, the Court recorded that there is no defence evidence and proceeded to hear the matter finally. The learned Public Prosecutor, however, has pointed out that a Full Bench of this Court in Moidu K. v. State of Kerala; 2009(3) KHC 89 has taken the view, though the provisions of s. 232 Cr.PC are mandatory; the failure to comply does not ipso facto vitiate the trial. It is submitted that only where serious and substantial prejudice has been demonstrated would failure to comply with the provisions in s. 233 Cr.PC vitiate the trial.