Muhammad Shafi Ganai vs State Through Zeeant Ayour
2021 Latest Caselaw 1641 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                     AT SRINAGAR

                                                 Reserved on: 16.12.2021
                                                 Pronounced on:21.12.2021


                            CRMC No.39/2017


MUHAMMAD SHAFI GANAI                                  ... PETITIONER(S)

              Through: - Mr. Z. A. Shah, Sr. Advocate, with
                            Mr. A. Hanan, Advocate.

Vs.

STATE THROUGH ZEEANT AYOUR                        ...RESPONDENT(S)
FSO BUDGAM.

              Through: - Ms. Asifa Padroo, AAG.


CORAM:        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                  JUDGMENT

1) Petitioner has challenged order dated 08.03.2017 passed by

learned Principal Sessions Judge, Budgam, whereby petitioner's

application under Section 428 of J&K Cr. P. C seeking permission to

lead additional evidence at appellate stage has been dismissed.

2) Before coming to the present petition, it would be apt to narrate

the facts that have led to the filing of instant petition.

3) It emerges from the record that respondent herein had filed a

complaint against the petitioner alleging commission of certain

offences by petitioner under the provisions of Food Safety and

Standards Act, 2006 (for short 'the Act of 2006'). The complaint was

filed before the Judicial Magistrate 1st Class, Budgam (hereinafter

referred to as the trial court). After trial of the case, it seems that the

petitioner has been found guilty of offences under Section 51, 52, and

59 the Act of 2006 and has been sentenced to a fine of Rs.5.00 lacs for

offence under Section 51, Rs.3.00 lacs for offence under Section 52 and

imprisonment of six months with a fine of Rs.1.00 lac for offence under

Section 59.

4) The aforesaid judgment of the trial court came to be challenged

by the petitioner by way of an appeal before the Principal Sessions

Judge, Budgam (hereinafter referred to as the Appellate Court). During

pendency of the appeal, petitioner filed an application under Section

428 of the J&K Cr. P. C (which corresponds to Section 391 of the Code

of Criminal Procedure, 1973), seeking permission to produce additional

evidence. The said application came to be dismissed by the learned

Appellate Court vide the impugned order. While dismissing the

application, the learned Appellate Court has observed that the

documents which the petitioner seeks to place on record and the

evidence which he seeks to produce is not relevant and admissible. It

has been also observed that petitioner had all the available opportunity

to produce this evidence before the trial court which he failed to do and

now he cannot be permitted to produce the said evidence.

5) The petitioner has challenged the impugned order on the ground

that the conclusions drawn by the learned Appellate Court are not

correct as it was not a case where the petitioner wanted to fill up lacunae

or gap in the evidence. It has been further contended that the evidence

sought to be produced by the petitioner has come to his notice only after

the judgment was passed by the trial court and the learned Appellate

Court, while rejecting the application, has taken an erroneous view by

observing that the evidence which comes to the notice after the passing

of judgment by the trial court cannot be produced.

6) I have heard learned counsel for the parties and perused the

record of the case.

7) Before coming to the merits of the submissions made by the

parties, it is necessary to notice as to what were the allegations made in

the complaint against the petitioner and what sort of evidence petitioner

is seeking to produce at the appellate stage. The allegations against the

petitioner in the complaint are that the sample of milk manufactured by

his business concern, upon analysis of the sample take of his product,

was found to be sub-standard, unsafe and misbranded by the Referral

Food Laboratory, Kolkata. Through the medium of application under

Section 428 of Cr. P. C, the petitioner seeks permission to examine one

Murtaza Ali, an official of the respondent department, who, according

to the petitioner, also accompanied the officials who had collected and

sealed the sample of the product of petitioner. According to the

petitioner, the said official has made a statement touching the procedure

of sampling and its sealing during the departmental enquiry that was

held pursuant to the directions of the trial court. The other evidence

which petitioner seeks permission to produce is the research paper with

regard to effect of Formalin in milk as also changes made in DGHS

Manual. As per this research paper, it has been opined by the experts

that using of Formalin as a preservative in milk and milk products

causes certain effects which can influence the test report of these

products.

8) Before proceeding ahead to determine as to whether aforesaid

nature of evidence can be allowed to be led at the appellate stage, it is

necessary to notice the legal position as regards the scope and

interpretation of Section 428 of J&K Cr. P. C (Section 391 of Central

Cr. P. C), which reads as under:

428. Appellate Court may take further evidence or direct it to be taken.--(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Judicial Magistrate or, when the Appellate Court is the High Court, by a Court of Session or a Judicial Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken; but such evidence shall not be taken in the presence of jurors. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry.

9) From a perusal of the aforesaid provision, it is clear that it is the

discretion of the Appellate Court to take additional evidence at

appellate stage. The only requirement is that such additional evidence

must be necessary and the court should record its reasons.

10) The aforesaid provision has been interpreted and dissected by

Supreme Court in a number of judgments. In Zahira Habibullah H.

Sheikh & anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158, the

Supreme Court has, while considering the scope of Section 391 of Cr.

P. C. 1973, observed as under:

"Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is the proper procedure will depend on the facts and circumstances of each case for which no straitjacket formula of universal and invariable application can be formulated. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 Cr.P.C 1973, the under lying object which the court must keep in view is the very reason for which the courts exist i.e., to find out the truth and dispense justice impartially and ensure also that the very process of courts is not employed or utilized in a manner which given room to unfairness or lend themselves to be used as instruments of oppression and injustice."

11) In Sudevanand vs. State through CBI, (2012) 3 SCC 387, the

Supreme Court, after noticing the provisions contained in Section 391,

observed as under:

"30. It is, thus, to be seen that the provision is not limited to recall of a witness for further cross- examination with reference to his previous statement. The Appellate Court may feel the necessity to take additional evidence for any number of reasons to arrive at the just decision in the case. The law casts a duty upon the court to arrive at the truth by all lawful means. This is another reason why we feel any reliance on Mishrilal that considered the recall of a witness in the context of Section 145 of the Evidence Act is quite misplaced in the facts of this case.

31. Mr. Dey contended that Vikram's statement that he is alleged to have made in jail has no legal sanctity and it came to be made and recorded in a manner

completely unknown to law. Mr Dey may be right but on that ground alone it would not be correct and proper to deny the application of Section 391 of the Cr.P.C. Take the case where, on the testimony of the Approver, a person is convicted by the trial court under Section 302 and 120-B etc. of the Penal Code and is sentenced to a life term. After the judgment and order passed by the trial court and while the convict's appeal is pending before the High Court, the `Approver' is found blabbering and boasting among his friends that he was able to take the Court for a ride and settled his personal score with the convict by sending him to jail to rot at least for 14 years. Such a statement would also be completely beyond the legal framework but can it be said that in light of such a development the convicted accused may not ask the High Court for recalling the Approver for further examination."

12) Again, in Sukhjeet Singh vs. The state of Uttar Pradesh and Ors.,

(2019) 16 SCC 712, the Supreme Court, after noticing its earlier

decisions on the subject, held that there are no fetters on the power

under Section 391 of Cr.P.C. of the Appellate Court. The Court went

on to hold that all powers are conferred on the Court to secure ends of

justice, the ultimate object of judicial administration is to secure ends

of justice and Court exists for rendering justice to the people

13) From the foregoing enunciation of law on the subject, it is clear

that it ultimately is the discretion of the Appellate Court as to whether

additional evidence can be permitted to be adduced at the appellate

stage but such discretion has to be exercised on recognized principles

evolved over a period of time by the case law on the subject. The only

consideration which has to be kept in mind by the Appellate Court is to

secure the ends of justice. However, the additional evidence cannot and

ought not to be received in such a manner as to cause prejudice to any

of the parties. It cannot be a re-trial and it is only the concept of justice

which much prevail. The Appellate Court cannot allow additional

evidence to be led just to fill up the lacuna at the appellate stage. The

Court has also to see as to whether the evidence proposed to be led is

relevant. The test to be applied is as to whether evidence sought to be

advanced is essential for just decision of the case.

14) Adverting to the facts of the instant case, as already noted,

petitioner proposes to examine witness, namely, Murtaza Ali, who is

stated to have deposed about the procedure adopted during the course

of sampling and sealing. The said statement has been made by the

aforesaid witness in the departmental enquiry that was conducted

pursuant to the orders of the trial court in the judgment which is subject

matter of appeal before the Appellate Court. The question arises as to

whether petitioner can be allowed to do so at the appellate stage.

15) The learned Appellate Court has, while rejecting plea of the

petitioner, observed that the petitioner is seeking to bring on record post

trial developments. According to learned Appellate Court, the

procedure with regard to sampling and sealing was already known to

the petitioner during trial of the case and, thus, is not a new thing which

has come to the knowledge of the petitioner. Learned Appellate Court

has observed that petitioner has availed the opportunity of producing

the evidence before the trial court and, therefore, he cannot be allowed

to produce additional evidence on this aspect of the matter. A further

observation has been made by the learned Appellate Court while

rejecting application of the petitioner that the proceedings conducted in

an enquiry are not admissible or relevant in criminal proceedings and

that departmental enquiry has not been completed in view of the stay

granted by the Appellate Court.

16) All the aforesaid reasoning given by the learned Appellate Court

appears to be misplaced and misconceived. Firstly, the Appellate Court

has stayed the conviction of the petitioner and no direction with regard

to holding of departmental proceedings has been passed. The

departmental proceedings have been completed and the copies thereof

have been placed on record by petitioner after obtaining the same

through RTI. It is correct that proceedings conducted in a departmental

enquiry do not have a bearing upon criminal proceedings but then what

the petitioner is seeking to achieve by examining the witness, namely,

Murtaza Ali is to bring to the fore the manner in which sampling and

sealing has taken place in the instant case. Murtaza Ali, admittedly, has

not been examined as witness before the trial court and he, during the

departmental proceedings, has made certain observations and

statements as regards the manner in which the sample was collected and

sealed. His statement, therefore, is relevant to the case at hand.

Admittedly, departmental enquiry was conducted after the decision of

the trial court, as such, it would not have been in the knowledge of the

petitioner that Murtaza Ali was in know of the facts relevant to the case.

Therefore, there was no occasion for the petitioner to produce the said

witness in defence during trial of the case. The observations of the

Appellate Court that petitioner had enough opportunity to produce the

said person as a witness during trial is certainly off the mark.

17) Regarding petitioner's request for permission to place on record

the research paper published in the magazine "INDIAN DAIRY MAN"

in June 2016 issue, the learned Appellate Court, after noticing

Regulation No.2.3.1(4) of the Food Safety and Standards (Laboratory

and Sample Analysis) Regulations, 2017, has observed that these

provisions permit use of Formalin as preservative in samples of milk

and, as such, objection with regard to its effect on test results pales into

insignificance. The learned Appellate Court has further observed that

no amount of evidence in opposition shall be enough to dispute the

statutory provisions of law. It has also been observed by learned

Appellate Court that the aforesaid evidence sought to be produced by

petitioner is neither relevant nor admissible in evidence as the same

does not pertain to this case or to the said Court. The learned Appellate

Court goes on to observe that opinion does not become relevant to a

case which is already concluded.

18) So far as the opinion of the experts is concerned, the same is a

relevant fact in terms of Section 45 of the Evidence Act. What the

petitioner seeks to produce on record is opinion of an expert who has

published a research paper on effects of Formalin on the test results of

samples of milk. An expert is not a witness of fact and his evidence is

really of an advisory character and his duty is to furnish court with

scientific test criteria to test accuracy of conclusions. Based on such

expert opinion and upon appreciation of the facts of a case, the court

has to give its independent judgment. The court has not to subjugate its

own judgment to that of expert. Nonetheless, opinion of an expert is a

relevant fact.

19) What petitioner seeks to produce before the Appellate Court is

opinion of an expert and it is for the Appellate Court either to rely upon

the same or to take a different view. It is not in dispute that Formalin is

a permissible preservative for sampling of milk but then what petitioner

wants to establish before the Appellate Court is that this preservative

does effect the test report. Such an evidence cannot be shut out merely

because it is a permitted preservative. The view of the learned Appellate

Court in this regard is patently erroneous. The observation of the

Appellate Court that an opinion rendered after conclusion of the trial

cannot be taken into consider is also erroneous because any research

which throws light on a relevant fact and has bearing upon a case can

always be taken into account, more particularly when the judgment of

the trial court has not attained finality as yet, inasmuch as appeal is a

continuation of the trial.

20) The foregoing discussion clearly leads to the conclusion that the

petitioner is seeking permission to produce evidence which is relevant

to the issue pending before the Appellate Court and there was no

occasion for the petitioner to produce this evidence during trial of the

case as the same has come to his notice only after conclusion of the

trial. The evidence sought to be introduced by the petitioner is not only

necessary for the just decision of the appeal but shutting out the same

would result in failure of justice. It is not a case where petitioner is

trying to fill up the lacunae left during the trial of the case but it is a

case where petitioner is trying to place on record the evidence which

has come to his notice after the conclusion of trial and which has a

definite bearing upon decision of the case.

21) In view of the foregoing analysis and discussion, allowing the

impugned order passed by the learned Appellate Court to stand would

amount to failure of justice and, such, the same deserves to be set aside.

Accordingly, the petition is allowed and the impugned order passed by

the Appellate Court is set aside. The petitioner is permitted to lead

additional evidence, as has been sought to be led by him by way of the

application filed before the Appellate Court.

22) Copy of this order be sent to the learned Appellate Court for

information and compliance.

(Sanjay Dhar) Judge Srinagar 21.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:         Yes/No
                                              Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.12.21 14:31
I attest to the accuracy and
integrity of this document