Honourable Mr. Justice Z.K. Saiyed
1. The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is filed by the appellant - original complainant, against the judgment and order of acquittal dated 12.04.2002 passed by the learned Chief Judicial Magistrate, Surat, in Criminal Case No. 2992 of 2001, whereby the learned Magistrate has discharged the original accused (respondents No. 1 to 4 herein) of the charges levelled against them.
2. The facts of the prosecution case is that the complainant herein filed complaint against the accused on 31.8.2001, inter-alia contending that when company of the accused persons was raided along with sister concern company, and when residential premises of the accused were also seized, during the panchnama thereof, irregularities were found in stock and books of accounts. Therefore, certain documentary evidence were seized. During investigation, it was revealed that acetic and hydride were being diverted illegally and, therefore, aforesaid complaint was filed against the accused for the offences under Sections 174, 175 and 176 of I.P. Code read with Section 67 of the Narcotics Drugs & Psychotropic Substance Act, 1985 ("NDPS Act"). The said case was registered as Criminal Case No. 2992 of 2001 in the court of learned Chief Judicial Magistrate, Surat.
3. Thereafter, the learned Magistrate has issued summons against the original accused. Pursuant to the summons issued by the learned Magistrate, the accused appeared. The complaint (Exh.1) was read over to them and plea was recorded. The accused pleaded not guilty to the charge and, therefore, the case was kept for producing the evidence and for deposition of the witnesses.
4. Thereafter, the trial Court has granted several adjournments to call the witnesses, but, the complainant has not kept the witnesses present. Therefore, as per the provision of Sections 256 and 268 Cr.P.C. the learned Magistrate has discharged all the accused from the offences alleged against them, by order dated 12.4.2002.
5. Being aggrieved by the said order dated 12.4.2002 passed by the learned Chief Judicial Magistrate, Surat, in Criminal Case No. 2992 of 2001, the appellant - original complainant has preferred this Appeal.
6. Heard learned Counsel Mr. N.D.Gohil for the appellant, learned Counsel Mr. A.D.Shah for the original accused and learned A.P.P. Mr. H.L. Jani for the respondent - State.
7. Learned Counsel Mr. Gohil for the appellant has read the order passed by the learned Chief Judicial Magistrate and contended that looking to the seriousness of offence, the learned Magistrate could not have discharged the accused only on the ground of non-availability of witnesses. He has contended that if the witnesses are not remaining present on the basis of the summons issued by the Court, then it is the duty of the learned Magistrate to issue bailable warrant against the witnesses to secure their presence, but here in the present case, the learned Magistrate has not issued any bailable warrant against the witnesses to secure their presence and simply discharged the accused from the offences alleged against them by using short-cut. He has contended that the NDPS Act is a special Act and looking to the seriousness of offence, the order of learned Magistrate is bad in law and, therefore, same requires to be quashed and the matter may be remanded to the trial Court for its decision afresh, in accordance with law and after examining the witnesses.
8. Learned Counsel Mr. A.D. Shah for the respondents - accused has contended that the learned Magistrate has clearly observed that from the date of filing of complaint till the date of order, several adjournments have been granted, but, on none of the date the witness remained present before the Court and when the witnesses are not produced before the learned Magistrate, then the learned Magistrate has power to dismiss the complaint. He has contended that the learned Magistrate has not committed any error in dismissing the complaint and the order passed by the learned Magistrate is proper and as per the provisions of law. Therefore, no interference is called for.
9. Learned A.P.P. Mr. Jani has also contended that no doubt several dates have been granted by the learned Magistrate to keep the witnesses present, but, on none of the occasion the witnesses could remain present. Mr. Jani has also drawn my attention that in Criminal Procedure Code, there is provision that when the witnesses are not appearing before the Court then it is the duty of the Court to issue bailable warrant against the witnesses for securing their presence. Even if the Prosecutrix has failed to keep the witnesses present, then due to negligence on the part of Prosecutor, he can be sacked.
10. Heard the parties. I have also perused the contents of the complaint and the order passed by the learned Magistrate. From perusal of the order, it clearly appears that only on the ground of non-availability of witness the learned Magistrate has dismissed the complaint and discharged the accused from the offences alleged against them.
11. During the hering of this Appeal, original complainant - Inspector Mr. Bhattacharya has also filed Affidavit explaining as to under which circumstances the complainant could not remain present before the Court. He has also contended in his Affidavit that as per the Court record on 12.12.2001 at one instance only the notice was said to have been issued by the Court to the complainant, but, no such communication was received by the applicant office/department. He has mentioned in his Affidavit that the respondents - accused have taken adjournment on 7 occasions and from the complainant side only 3 adjournments were sought on 8.3.2002, 22.3.2002 and 10.4.2002 and out of which, two adjournments i.e. on 8.3.2002 and 22.3.2002 were sought considering the ongoing disturbance at Surat and the State of Gujarat as a whole. He has also contended that neither the applicant nor his department has received any intimation about the various adjournments. The applicant was pre-occupied official/investigation/Court matters related works and due to above circumstances beyond the control of the applicant, the applicant could not attend the Court on various dates. He has prayed that his absence may not be considered as negligence on the part of public servant. He has also tried to establish in the Affidavit that he has not committed any criminal misconduct.
12. It is true that the present appellant - complainant is duty bound to appear before the Court, but, he has explained everything in his Affidavit as to under which circumstances he could not appear before the Court. The Hon''ble Apex Court as well as this Court in so many cases have issued direction that the Investigating Officer or a public servant is required to appear before the Court to furnish oral as well as documentary evidence. From the dictionary meaning, the "Duty" (burden imposed by law) is an obligatory act or forbearance the omission or performance of which or the opposite or which would be a wrong. Duty may be classified in to (a) absence or liberty in a particular respect, (b) "disabilities", that, absence of a power. "Liabilities", that is, presence of rights vested in some one else as against the person liable, as the obligation to do some thing, or suffer something being done, as, the liability of the debtor to pay money, or a trespasser to be forcibly ejected. Liabilities correspond to the various powers of action and prosecution arising from the different forms of wrongs. They give rise to responsibilities or obligations. Rights and duties are necessarily correlatives. There can be no right without a corresponding duty, nor a duty without a corresponding rights.
13. Duties have, however, been classified in to "relative and absolute". A relative duty corresponds to right residing in a definite person. It is a duty to be fulfilled towards a definite person, who has the right. A duty is absolute when the act is to be done, or forborne, towards indeterminate person, as for instance the duty not to commit a crime.
14. A "wrong" or "injury" is simply a wrong act, that is, an act contrary, or not confirming, to the rule of right or justice, which may result in harm or damage, whether inflicted by human agency or not.
15. Duties and wrongs are correlative. The commission of a wrong involves, or effect, a breach of a duty, and the performance of the duty avoids the wrong. All that is right or wrong, just or unjust, is so by reason of its effect upon the interest of third person, that is, upon the various elements of human well being, such as life, liberty, health, reputation and the use of material objects. Conduct which does not affect the interest of anyone has no significance in law.
16. It is true that it is a Court''s duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than its duty to acquit the accused when such guilty is not so established.
17. The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction, but, to bring out the real unvarnished truth.
18. It is true that it is not the normal function of the High Court to pass judgment on the conduct of Investigating or Trapping Officer of the case. But, when from the papers and evidence it appears that Investigating Officer who has not performed his duty which is prescribed by law and when he has committed some thing wrong in eye of law then no leniency can be awarded to such public servant.
19. It is also required to be noted that in the case of
20. The NDPS Act is a special enactment and was enacted with a view to making stringent provisions for the control and regulation of operation relating to Narcotics Drugs and Psychotropic Substance. The Act has a loudable purpose to serve and is intended to combat the menace otherwise band upon destroying the public health and national wealth.
21. Law relating to the interpretation of the provision construction must be based on the meaning of the words used to be gathered according to the ordinary rule of interpretation and in consonance with the generally accepted principles of exercise of criminal jurisdiction." One of the important accepted principle of law of interpretation is that it should be presumed that every word used by legislature has been used for a specific purpose.
22. Section 59 of the NDPS Act reads as under :
59. Failure of officer in duty or his connivance at the contravention of the provisions of this Act - (1) Any officer, on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall, unless he has obtained the express written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2) Any officer on whom any duty has been imporsed by or under this Act or any person who has been given the custody of -
(a) any addict; or
(b) any other person who has been charged with an offence under this Act;
Any who wilfully aids in, or connives at, the contravention of any provision of this Act or any rule or order made thereunder, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
(3) No court shall take cognizance of any offence under sub-section (1) or sub-section (2) except on a complaint in writing made with the previous sanction of the Central Government, or as the case may be, the State Government.
23. This Court (Coram : K.J.Vaidya,J., as His Lordship then was), in the case of STATE OF GUJARAT v/s LOHANA PRAKASH DAYALJI & ANR., reported in 1994 (1) GLR 112, has held as under :
Criminal Procedure Code, 1973 (II of 1974) - Sec. 258 - Discharge on the ground that witnesses were not kept present - The learned Magistrate should not feel helpless in securing the presence of the witnesses - It is the duty of the P.P. to keep present the prosecution witnesses and he is responsible for the same - If the P.P. fails in his duty, proper steps should be taken against him by calling his explanation and depending upon the gravity and seriousness of the case such P.P. should be sacked.
24. In the present case, from the record, it clearly appears that the appellant - complainant has clearly explained in his Affidavit as to under which circumstances he could not remain present before the Court. It is evident from the Rojkam of the criminal case that the learned Magistrate has not considered the fact that on many occasion, at the request of learned Advocate of the accused, the matter was adjourned. Therefore, it is clearly established that it is not only on the part of the complainant or the witnesses the matter was not adjourned, but, it was also adjourned on the request of learned Advocate for the accused. Therefore, it clearly appears that the learned Magistrate has taken hasty decision in discharging the accused from the charges levelled against them. In my opinion, the matter is required to be sent back to the trial Court for its decision afresh, after fully affording the opportunity to both the sides. Before discharging the accused from the offences charged against them, the learned Magistrate has not considered the fact that the matter was not adjourned only due to absent of complainant or the witnesses, but, it was also adjourned on the request of the learned Advocate of the accused. Therefore, in my opinion, the learned Magistrate has committed grave error in discharging the accused from the charges levelled against them.
25. In the result, this appeal is partly allowed. The impugned judgment and order dated 12th April, 2002 passed by the learned Chief Judicial Magistrate, Surat, in Criminal Case No. 2992 of 2001 discharging the respondents No. 1 to 4 - original accused from the offences alleged against them is hereby quashed and set aside. The case is remanded to the Trial Court with a direction to decide the same on merits and in accordance with law. The learned Principal District Judge, Surat is directed to notify the said Criminal Case before the concerned Chief Judicial Magistrate, Surat, with a direction to decide the said case within a period of six months from the date of receipt of the writ of this order. Record and Proceedings, if received, be sent back to the Trial Court, forthwith.
