Thomas J. - (1.) Leave granted.
(2.) Can a trial Court permit lacuna in prosecution evidence filled up The conventional concept is that the Court should not do so. But then, what is meant by lacuna in a prosecution case, has to be understood before deciding the said question one way or the other.
(3.) The present case provides an occasion to decide the said question. Appellant is now facing trial along with certain other persons before a Court of sessions for offences under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Appellant is now on bail pursuant to an order granted by the High Court of Delhi. As the trial proceeded almost to the end when the prosecution and the defence closed their evidence on 19-9-1997, the case was posted for further steps. Nevertheless, subsequently, the case stood posted to some other days also. On 7-3-1998, at the instance of the prosecution two of the witnesses, who were already examined, were re-summoned for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments. It appears that arguments were heard in piecemeal on different days. On 7-6-1998, the Public Prosecutor moved an application seeking permission to examine PW-21 (Dalip Singh-SI) and two other persons. Though the application was stoutly opposed by the accused's counsel the trial Court allowed it in exercise of its power under Section 311 of the Code of Criminal Procedure (for short 'the Code') and summons were issued to the witnesses as per its order dated 8-1-1999. The relevant portion of that order of the trial Court is the following: "In order to find out whether the CFSL Form accompanied the sample packet or not, it has been repeatedly held by the Hon'ble High Court that the Road Certificate should be produced to make things clear in this respect. It cannot be denied that it is an old case and directions have been issued several times to expedite the trial but at the same time when the witnesses are available the prosecution cannot be debarred by examining him. In the present case, cross examination of PW-4 was deferred by learned Additional Public Prosecutor. Cross examination of PW-21 by the Defence Counsel was deferred but thereafter he was never summoned for cross examination. There was negligence on the part of Public Prosecutor as he closed evidence twice without verifying whether cross examination of all the witnesses has been concluded or not. However, in the interest of justice, I allow the application to the extent that PW-21 Dalip Singh be recalled for cross examination. The interest of justice demands that things should be clear before the Court to assist it to meet the ends of justice." ;