CRL OP/20586/2003 of K.V.RAMASAMY Vs SUPERINTENDENT OF CUSTOMS on 11 December 2003

:O R D E R

Both the above criminal original petitions have been filedunder Section 482 of the Code of Criminal Procedure praying to set aside theorders dated 17.6.2003 respectively made in Crl.M.P.Nos.611 and 610 of 2003 bythe Court of Special Judge, (Economic Offences), Coimbatore, therebydismissing the petitions filed by the petitioner herein under Section 311 ofCr.P.C.

2. Tracing the history of the case, it comes to be known that the petitioner herein filed Crl.M.P.No.611 of 2003 on the file of the Court ofSpecial Judge, (Economic Offences), Coimbatore, praying to cut open the bags,which were seized by the respondent, in the open court to verify the contentsof the same; that he has also filed Crl.M.P. No.610 of 2003 praying to recallP.Ws. 1 and 2 and allow the accused to cross-examine them, on the ground thatthe witnesses did not give proper answer as to why the polythene bag wasreversed and tied with the material objects; that the prosecution has notclarified the same; that the weight of the material objects are in dispute andthe taking of samples are very much questioned, and hence the petitioner musthave been afforded opportunity to defend the case; that when P.W.1 wasexamined, the petitioner sought for deferring the crossexamination till theother witness was examined. However, the learned Special Judge has recorded as if the petitioner has not cross-examined the witness, in spite of giving anopportunity; that when P.W.2 was examined, the material document/informationreceived and recorded was not filed and therefore, the petitioner's counselrestricted the question for the document which was not produced before thecourt and therefore, the learned Special Judge ought to have allowed theapplication for recalling and examining P.W.2; that at a later point of time,a copy of the document was marked and therefore, the petitioner was denied theopportunity to put question relating to the document filed and thus, he wasnot given full opportunity to cross-examine P.W.2, who is alleged to havereceived information. On such grounds, the petitioner would pray to allowboth the Criminal Original Petitions thereby setting aside the orders of thelearned Special Judge, E.C. Court, Coimbatore.

3. In the counter filed by the respondent, it would be

3. In the counter filed by the respondent, it would be pleaded that on 23.10.2002 at 10.30 a.m. the residence of thepetitioner/accused, in the presence of his wife, was searched, wherein, theofficer found ganja loosely spread without any packing on the bedroom andganja was also found in the room packed into polythene bags weighing 12 kgs.and 10 kgs. respectively and drawing samples from there, and thereafterstitching the mouth of the bags, affixed the signature and the seal of theSuperintendent of Customs, also obtaining the signature of thepetitioner/accused and two other witnesses on the tag annexed to the sealedbags; that similarly, the sample packets were also placed in sealed covers;that the ganja and samples drawn there in the presence of the petitioner, hiswife and two independent witnesses, were seized under a mahazar for furtheraction under NDPS Act; that on 23.10.2002, they have also recorded thevoluntary statement of the accused in the presence of the Superintendent ofCustoms, Preventive Unit, Salem; that they arrested the accused on the verysame day and produced him before the learned Magistrate, Gobi, who remandedhim to judicial custody; that the respective samples(original) were sent tothe Chemical Examiner, Customs Laboratory, Chennai under a Test memo. on thevery same day; that the Chemical Examiner, Chennai, sent a report dated8.11.2002, wherein he opined that the samples are "Cannabis" (Ganja); thatafter completing the investigation, a complaint in C.C.No.43 of 2003 was filedbefore the Special Court of NDPS cases, Coimbatore on 25.2.2003; that theprosecution commenced the trial by examining Shri R.S.Narasimhamoorthy,Chemical Examiner as P.W.1; that thereafter, the prosecution examined theSuperintendent of Customs as P. W.2 and one independent witness as P.W.3 inorder to prove the recovery of ganja from the residence of thepetitioner/accused; that the seized Ganja were marked as Mos.3 and 4 throughP.Ws.2 and 3; that the petitioner/accused did not raise any objection to themarking of the material objects at that time and nowhere, he has disputed thatM.Os. 3 and 4 are not ganja, but on the contrary he has taken a specific pleathat the recovery of Ganja (Mos. 3 and 4) was not from his residence, but ithas been foisted on him by P.W.2; that on such grounds, the petitioner/accusedhas filed both the above Crl.M.Ps. at the time when the prosecution evidencehad come to a close; that when the petitioner/accused was produced along withthe seized ganja before the remanding Magistrate on 23.l0.2002, he did notchoose to allege that the property was not ganja; that after a lapse of morethan 7 months, the petitioner/accused has come up with a specific plea thatM.Os. 3 and 4 should be cut open for the purpose of verification by P.W.1 and to recall P.Ws.1 and 2 for further cross-examination; that the learned SpecialJudge has rightly dismissed the said Crl.M.Ps. setting out the reasons. Onsuch averments, the respondent would pray to dismiss both the above CriminalOriginal Petitions.

4. During arguments, learned counsel appearing on behalf of the petitioner and the learned Special Public Prosecutor as well would onlyreiterate what has been brought forth in the above petitions and the counter,besides on the part of the learned counsel for the petitioner and therespondent each citing a judgment in support of their respective cases. Thepetitioner would cite from the judgment delivered in Rajendra Prasad v.Narcotic Cell reported in (1999) 6 SCC 110, wherein it is held:

"A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, eitherin producing relevant materials or in eliciting relevant answers fromwitnesses. The adage "to err is human" is the recognition of the possibilityof making mistakes to which humans are prone. A corollary of any such lachesor mistakes during the conducting of a case cannot be understood as a lacunawhich a court cannot fill up.

Lacuna in the prosecution must be understood as the inherentweakness or a latent wedge in the matrix of the prosecution case. Theadvantage of it should normally go to the accused in the trial of the case,but an oversight in the management of the prosecution cannot be treated asirreparable lacuna. No party in a trial can be foreclosed from correctingerrors. If proper evidence was not adduced or a relevant material was notbrought on record due to any inadvertence, the court should be magnanimous inpermitting such mistakes to be rectified. After all, function of the criminalcourt is administration of criminal justice and not to count errors committedby the parties or to find out and declare who among the parties performedbetter."

Likewise the respondent would cite a judgment delivered in Jagadeeswari OilTracing Co. v. Asst. Comml. Tax Officer reported in (1983) Vol.52 SalesTax Cases 125 wherein it is by the Hon'ble Apex Court:

"Unless the statute in express words or by necessary implication laid down that one remedy was to the exclusion of the other, theobservations of Mahamood, J., quoted above must apply.""However, in the absence of any such provision in theTravancoreCochin General Sales Tax Act (11 of 1125), the Supreme Court opinedthat both the remedies are open to the authorities and they could resort toany one of them at their option."

5. From the above backdrop, if a decision has to be arrived at in both the above petitions, it has become relevant to go into the orderspassed by the trial court, wherein the learned Judge would write that in theevent that there has been no denying of the fact that what is contained inM.Os.3 and 4 is 'ganja', there is absolutely no necessity to cut open thepolythene bag (as it has been prayed for in Crl. M.P.No.611 of 2003, asthough the defence was suspicious about the contraband contained in these M.O.Nos.3 and 4, which is only an afterthought) and further so far as thesubject matter connected to the other Crl.M.P.No.610 of 2003 is concerned, thelower court would make it clear beyond doubt that sufficient and reasonableopportunities have been afforded for the defence to cross-examine P.W.2regarding Exs.P.1 4 and P.15 marked therein, and if at all the defence has notmade best use of the same, the Court is not to be blamed, and therefore, sincethis Court is convinced of the opportunities that have already been given issufficient and reasonable in the petitions filed before the lower court, nogreater advantage also seems to be in favour of the petitioner, and therefore,without wasting much of time, it is only desirable to permit the lower courtto carry on with the rest of the trial procedure, particularly in view of thefact that the petitioner, by the denial of the reliefs sought for inconnecting both the above two petitions, has not at all become prejudiced inlaw.

In result,

(i) Both the above criminal original petitions are withoutmerit and they are dismissed as such; and

(ii) consequently, Crl.M.P.No.5870 of 2003 is also dismissed.gr/gs.

To

The Superintendent of Customs,Customs Preventive Unit,Salem.