RAHUL ALIAS BABU LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of 1973") raises an important question of law as regards the scope and extent of the provisions of Section 311 of the Code of 1973.

(2.) Brief facts, giving rise to this revision petition, as stated by the accused petitioner, are that on a challan having been filed against the petitioner for offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') trial was conducted. The prosecution closed its evidence on 19th Dec. 1996 and after recording the statement of accused under Section 313, Cr.P.C. the case was fixed for final hearing. When the case was being heard on 3-1-1997, during the course of arguments, it was considered by the prosecution that where the sample remained from 1-5-1995 to 5-5-1995, has not been proved. After about 21/2 months and by seeking three adjournments the prosecution filed an application on 17-3-1997 under Section 311 of the Code of 1973, which was replied by the accused on 22-3-97. In the application it was prayed by the prosecution that evidence of one Ganga Ram, who was the Malkhana Incharge, may be recorded, though his name was not there in the list of witnesses. The learned trial Judge vide its order dated 30-8-1997 decided the application and allowed the production of additional evidence in the shape of witness Ganga Ram.

(3.) This order dated 30-8-1997 is impugned in this petition on the ground that permitting the examination of Ganga Ram as prosecution witness after the evidence of the prosecution was closed and examination of the accused under Section 313 of the Code of 1973 was completed, would seriously prejudice the accused and would amount to filling up deliberate lacunae left in the prosecution by the prosecuting agency. Several decisions were cited in support of this proposition. In all these decisions what has been laid down by the Courts in India is that power to record additional evidence under Section 311 of the Code of 1973 is absolute but it should be cautiously exercised.