Punjab-Haryana High Court
Sandeep Kumar vs State Through District Drug ... on 9 January, 2023
(1) CRM-M-38886 of 2018
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-38886 of 2018
Date of Decision:- 09.01.2023
Sandeep Kumar
....Petitioner
Vs.
State through District Drug Inspector, Feorzepur
....Respondent
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
Present:- Mr. Sandeep K. Passi, Advocate
for the petitioner.
Mr. C.L. Pawar, Addl. AG Punjab.
KARAMJIT SINGH, J.
The petitioner is seeking quashing of the impugned order
dated 06.08.2018 (Annexure P-1) passed by the learned Additional
Sessions Judge, Ferozepur vide which the application filed by
petitioner/ accused under Section 391 Cr.P.C. for leading additional
evidence in Criminal Appeal No. CRA/156/2016 has been dismissed.
Brief facts of the case are that on 4.7.2006, shop No.2
adjoining M/s Chalana Medical Agencies near Bus Stand Jalalabad
District Ferozepur was inspected by Rajesh Suri the then Drug
Inspector along with Amit Duggal Drug Inspector Jalandhar and
Jitender Singh Drug Inspector Bathinda and petitioner/accused was
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found stocking many types of allopaethic drugs for the purpose of
sale and distribution without having any valid drug sale license or
registered Medical Practitioner Certificate, as required under law.
After following the proper procedure, State through Drugs Inspector
Ferozepur filed complaint under Section 18(c) read with Rule 62 and
Section 18-A of the Drugs and Cosmetics Act, 1940 and on
conclusion of trial petitioner/accused was convicted and sentenced to
imprisonment under Section 27(b) (ii) for contravention of Section
18(c) and 18(A) of Drugs and Cosmetics Act, 1940 by the Court of
ld. Chief Judicial Magistrate, Ferozepur vide judgment and order
dated 25.7.2016.
Being aggrieved petitioner/accused has filed criminal
appeal which is pending in the Court of Ld. Additional Sessions
Judge, Ferozepur and in the said appeal petitioner/accused filed an
application under Section 391 Cr.P.C to tender the following
documents by way of additional evidence:-
"(i) Original bill No.267 Book No.6 dated 12.6.2006
issued by M/s Radhika Medicos.
(ii) Bill No.252 dated 14.6.2006 issued by kalbro.
(iii) Bill No.12962 dated 19.5.2006 issued by York's
Pharma.
(iv) Bill No.2300 dated 30.6.2006 issued by Suresh
Medical Agency.
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(v) Bill No.193 dated 1.7.2006 issued by Royson
Sales Corporation.
(vi) Bill No.341 dated 3.7.2006 issued by M/s Pace
Pharma.
(vii) Bill No.000259 dated 16.6.2006 issued by R.P.
Dichech Pvt. Ltd.
(viii) Bill No.403 dated 1.7.2006 issued by Chalana
Medicos.
(ix) Bill No.083 dated 1.7.2006 issued by kansal
Medicine Traders."
The said application was contested by the State and
dismissed by the Ld. Appellate Court vide order dated 6.8.2018,
Annexure P-1 with following observations:-
"Through the application for additional evidence
under Section 391 Cr.PC, the appellant seeks to bring on
record certain bills to prove the fact that the appellant is not
occupying shop No.3 (godown) as alleged by the complainant
and the same is not in his possession and is in possession of
Ashok Kumar son of Mukand Lal under Municipal Committee
under the record of the committee and that he purchased the
medicines so recovered through these bills. Perusal of the file
of the lower court would reveal that photostat copies of the
documents which are now sought to be brought on record at
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the appellate stage were there on the judicial record of the
lower court when the trial was in progress. The accused had
opportunity to bring on record the said documents at that
stage of leading defence evidence, but he did not do so. The
documents sought to be brought on record are defence taken
by the accused. Hence, it was for him to bring on record all
the documents to prove his defence when sufficient
opportunities were given. Hence, the application cannot be
allowed at this stage and the same is dismissed."
The petitioner being aggrieved has filed the present
petition to challenge the order dated 6.8.2018, Annexure P-1.
Notice of motion was issued vide order dated 6.9.2018
and in the meantime passing of final order by the Appellate Court
was stayed.
The State has filed the reply by way of affidavit of
Omkar Singh, Drugs Control Officer, Fazilka, which was taken on
record.
I have heard the counsel for the parties.
The counsel for the petitioner submits that the petitioner
has been falsely implicated in the present case at the instance of Drug
inspector. Actually the petitioner is holding a valid drug license for
M/s Chalana Medical Agencies and the concerned medicines were
purchased against valid bills and the copy of the same same were
produced before the trial Court at the time of framing of charge, but
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thereafter, due to inadvertence the petitioner failed to tender the
originals of said bills in his defence evidence and as and when the
petitioner came to know about the said oversight he immediately
approached the Appellate Court by filing application under Section
391 Cr.P.C. in order to produce the aforesaid bills to prove his
innocence. The counsel for the petitioner further submits that
aforesaid documents/bills are necessary for the just decision of the
case and the Appellate Court dismissed the said application without
application of mind, simply on the ground that the petitioner failed to
adduce the said evidence at the relevant time before the trial Court
and that the application moved by the petitioner under Section 391
Cr.P.C was declined being filed at the belated stage. The counsel for
the petitioner submits that vast powers are provided under Section
319 Cr.P.C. to obtain additional evidence at the appellate stage in
case the same is necessary to secure ends of justice and that
application filed under Section 391 Cr.P.C. cannot be declined just on
the ground that the same was filed at a belated stage. So prayer is
made that the present petition be allowed.
The present petition is contested by the State counsel
who submits that the petitioner was granted fair opportunity to lead
evidence in his defence by the trial Court but at that time the
petitioner remained silent and he filed the application under Section
319 Cr.P.C. only at the appellate stage and the same was rightly
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declined by the Appellate Court and that the present petition deserves
to be dismissed.
I have considered the submissions made by counsel for
the parties.
In Rambhau and another Vs. State of Maharashtra
2001 (2) RCR Criminal 721 the Hon'ble Apex Court has observed
that there is a very wide discretion in the matter of obtaining
additional evidence in terms of Section 391 Cr.P.C. At the same time
it is also observed by the Hon'ble Apex Court that it is not a disguise
for retrial or to change the nature of the case against the accused.
Further, the Hon'ble Supreme Court in Brig. Sukhjeet
Singh (Retd.) Vs State of Uttar Pradesh and others 2019(1) RCR
Criminal 895, while dealing with the matter relating to rejection of
application filed by the appellant under Section 391 Cr.P.C. before
the Sessions Judge in the Criminal appeal filed by him against the
conviction order, held that power to take additional evidence under
Section 391 CrPC is with an object to appropriately decide the appeal
by the Appellate Court to secure the ends of justice. The Hon'ble
Supreme Court further held when the Appellate Court has been given
power to lead additional evidence, the observation that it is belated
stage was uncalled for. The Hon'ble Supreme Court while rejecting
the plea taken by the opposite party that the application to take
additional evidence at appellate stage is filed by appellant for
delaying the decision of the appeal, observed that when prosecution
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took 12 years time in leading evidence before the trial Court, how can
appellant be castigated with the allegation that he intended to delay
the appeal to eternity.
Now adverting to the facts of the present case, it appears
that the photocopies of the concerned bills relating to purchase of
medicines were placed on record of the trial Court by the petitioner
but due to oversight he failed to tender the original bills in his
defence evidence and he sought permission to produce the same by
way of additional evidence at the appellate stage, in order to establish
his innocence as the petitioner claims that he is holding a valid drug
license for M/s Chalana Medical Agencies and purchased the
medicines in question against valid bills. The said bills appears to be
necessary for the just decision of the case and to secure ends of
justice. The trial Court dismissed the application moved under
Section 391 CrPC only on the ground that the same was moved at the
belated stage. The law in this regard is very clear as has been laid in
Brig. Sukhjeet Singh's case (supra).
In view of the matter, this Court is of the opinion the
impugned order dated 06.08.2018, Annexure P-1, passed by the Court
of learned Additional Sessions Judge, Ferozepur is not passed in
terms of the provision of Section 391 Cr.P.C and the settled law as
has been discussed above.
Consequently, the present petition is allowed and the
impugned order dated 06.08.2018, Annexure P-1, passed by the Court
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of learned Additional Sessions Judge, Ferozepur is hereby set aside.
The Court of learned Additional Sessions Judge, is directed to decide
the application moved by the petitioner/accused under Section 391
Cr.P.C. afresh in the light of provision of Section 391 Cr.P.C. and the
settled law as has been discussed above within a period of one month
of the receipt of copy of this order.
The present petition stands disposed of in aforesaid
terms.
( KARAMJIT SINGH)
09.01.2023 JUDGE
P. Chawla
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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