N.N.MATHUR,J. - (1.) The instant revision has been filed by the Krishi Upaj Mandi Samiti, Udaipur aggrieved by the order of the Additional Sessions Judge No. 3, Udaipur dated 1.3.2002, whereby he has reversed the order of the Judicial Magistrate No. 2 (South), Udaipur dated 19.4.2001 and dismissed the application under Section 91 Cr.P.C. r/w Sections 63 & 64 of the Indian Evidence Act permitting to produce secondary evidence.
(2.) The necessary facts giving rise to the instant petition are that petitioner- Krishi Upaj Mandi Samiti, Udaipur filed a complaint in the Court of Judicial Magistrate First Class N. 2, Udaipur City under section 28(1)(2) of the Rajasthan Agriculture Produce Market Act, 1961 (hereinafter referred to as 'the Act of 1961'). It is alleged that the accused-respondent v. Sri Ram Kripa Trading Co. is trading in the notified agriculture produce i.e. Deshi Ghee. During the survey on 7.10.1994 and 15.11.1994, it was found that the respondent-accused Firm purchased Deshi Ghee from Haryana Milk Food Ltd. at Haryana and sold the same to certain firms at Jodhpur. It was also detected that the accused-Firm did not deposit the market fee. The said Company was under an obligation to deposit the market fee with the petitioner-Samiti. It was also noticed that the accused-Company was indulging in the sale of the notified agriculture produce without seeking licence from the petitioner-Samiti. In order to prove the charge against the accused-Company the complainant- Samiti relied on the bills in their possession. The copies of the bills indicated that the accused-Company mentioned articles ST paid and MT (Market Tax) paid. In these circumstances, the petitioner-complainant filed an application under Section 91 Cr.P.C. r/w Sections 63 and 64 of the Indian Evidence Act seeking direction to the accused for production of the original bills, Account book and Ledger in their possession. In alternate, it was prayed that the petitioner-Samiti be allowed to lead secondary evidence. The accused-Company filed a reply to the application and took the objection that the accused cannot be compelled to produce the incriminating evidence against him. Considering the rival contentions the learned trial Court partly allowed the application of the Samiti to the extent of permitting to lead secondary evidence. The matter was carried in revision before the Court of Sessions Judge by the accused-respondent-Company. The learned Additional Sessions has taken the view that unless it is proved that the original bills of which reference has been made in the application are lost or destroyed in terms of Section 65, no secondary evidence can be adduced.
(3.) I have heard learned.counsel for the parties and considered the rival contentions. It is held by this Court in Smt. Samrath v. Khemji, reported in 1983 RLW page 77 that the accused persons cannot be called upon to produce incriminating evidence against him. In these circumstances the accused-respondent cannot be directed to produce the original bills. In my view as per the provisions of Section 65 of the Evidence Act which provides secondary evidence may be adduced regarding the contents of documents, when original are shown or appear to be in possession or power of the person against whom the documents is sought to be proved. Thus, the trial Court rightly allowed the petitioner-complainant to adduce secondary evidence. It was not obligatory on part of the learned Additional Sessions Judge to interfere with the interlocutory order.;