2021 (12) TMI 1370 - HC - Indian Laws

Petition Allowed, Additional Evidence Permitted for Just Decision

Muhammad Shafi Ganai Versus State Through Zeeant Ayour FSO Budgam

The petition was allowed, and the impugned order dismissing the petitioner's application under Section 428 of J&K Cr. P. C was set aside. The ... Dismissal of application seeking permission to lead additional evidence at appellate stage - 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 - HELD 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. 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. 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. Thus, it is concluded 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. Petition allowed. Issues Involved:1. Validity of the order dismissing the petitioner's application under Section 428 of J&K Cr. P. C.2. Relevance and admissibility of additional evidence at the appellate stage.3. Interpretation and scope of Section 428 of J&K Cr. P. C (Section 391 of Central Cr. P. C).Detailed Analysis:1. Validity of the order dismissing the petitioner's application under Section 428 of J&K Cr. P. C.:The petitioner challenged the order dated 08.03.2017 by the Principal Sessions Judge, Budgam, which dismissed his application under Section 428 of J&K Cr. P. C. The petitioner sought permission to produce additional evidence at the appellate stage, which was denied by the Appellate Court on grounds of irrelevance and inadmissibility. The Appellate Court observed that the petitioner had ample opportunity to produce the evidence during the trial and could not do so now to fill gaps in the evidence.2. Relevance and admissibility of additional evidence at the appellate stage:The petitioner argued that the evidence he sought to introduce came to his notice only after the trial court's judgment. The evidence included the testimony of Murtaza Ali, who detailed the sampling and sealing procedure during a departmental inquiry, and a research paper on the effects of Formalin in milk. The Appellate Court had dismissed these on the basis that they were post-trial developments and not new information unknown to the petitioner during the trial.3. Interpretation and scope of Section 428 of J&K Cr. P. C (Section 391 of Central Cr. P. C):The court noted that Section 428 of J&K Cr. P. C allows the Appellate Court discretion to take additional evidence if necessary, provided reasons are recorded. The Supreme Court, in various judgments, has emphasized that the purpose of this provision is to find the truth and ensure justice. The Appellate Court must exercise this discretion to secure the ends of justice without causing prejudice to any party. The additional evidence should not be used to fill gaps but must be essential for a just decision.Analysis and Judgment:Relevance of Murtaza Ali's Testimony:The court found that the Appellate Court's reasoning was misplaced. Murtaza Ali's testimony, made during a departmental inquiry post-trial, was relevant to the sampling and sealing procedure. Since the departmental inquiry occurred after the trial, the petitioner could not have known to produce this witness earlier. The Appellate Court's observation that the petitioner had enough opportunity during the trial was incorrect.Admissibility of the Research Paper:The court held that expert opinions, such as the research paper on Formalin's effects, are relevant under Section 45 of the Evidence Act. While the use of Formalin as a preservative is permitted, the petitioner aimed to show its impact on test results. The Appellate Court's dismissal of this evidence as irrelevant and inadmissible was erroneous. The court asserted that any research shedding light on relevant facts should be considered, especially when the trial judgment is not final and the appeal is a continuation of the trial.Conclusion:The court concluded that the evidence the petitioner sought to introduce was relevant and necessary for a just decision of the appeal. Denying this evidence would result in a failure of justice. The petitioner's request was not an attempt to fill gaps but to present new information discovered post-trial. Therefore, the impugned order by the Appellate Court was set aside, allowing the petitioner to lead additional evidence.Final Order:The petition was allowed, and the impugned order was set aside. The petitioner was permitted to introduce the additional evidence as sought in his application to the Appellate Court. A copy of the order was directed to be sent to the Appellate Court for compliance.