TMI Blog2001 (11) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on 5th of December 1991 during the deposition of the abovesaid witness. The facts go to show that the present respondent along with other accused are charged under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 and are being tried by the learned Addl. Sessions Judge, Mehsana in Sessions Case No. 58/90. It is the case of the prosecution that the present three respondents during Police remand were subjected to Lie Detection Test carried out by Dr. Smt. S. L. Vaya, PW-16, Exh. 126. While deposition was being recorded in examination-in-Chief, the objection was raised that the statements recorded by PW-16 is confessional in nature and she had no authority to record the statements of the accused though it was urged on behalf of the prosecution that the evidence was relevant under Section 45 of the Indian Evidence Act but the learned Addl. Sessions Judge not only held that the statements of the accused were inadmissible but closed the evidence of the witness PW-16 at that stage. 2. Learned Advocate General Mr. S. N. Shelat was heard on behalf of the State-petitioner and learned Sr. Advocate Mr. A. D. Shah was heard on behalf of respondent No. 1. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the matter of Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras, reported in AIR 1999 SC 2355 wherein confession before the Intelligence Officer was held relevant and the decision of this Court in the matter of Trikambhai @ Tiko Ravajibhai Thakore v. State of Gujarat, reported in 2001 (1) GLH wherein a statement of the accused before the Doctor even if the accused was in custody was held admissible. Learned Advocate General also relied upon a decision of this Court in the matter of Rajan Johnsonbhai Christie v. The State of Gujarat, reported in 1997 (1) GLH 799 and submitted that Lie Detection Test is a scientific test and expert be allowed to depose and if any objection is raised, the same can be finalised as directed by the Supreme Court in Bipin Shantilal Panchal's case (supra). It was urged that therefore the order impugned of the learned Addl. Sessions Judge concluding that the statements of the accused are not relevant and thereby closing the evidence is erroneous, illegal and incorrect. 4. As against this, learned Advocate Mr. A. D. Shah for respondent No. 1 vehemently urged that the order impugned is an interlocutory order and Revision cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent manner than provided by the statute. It was urged that the learned Addl. Sessions Judge was correct in discarding the confessional statements of the accused and since no foundation for the expert evidence was laid down, the learned Addl. Sessions Judge was correct in closing down the evidence of PW-16 and no interference of this Court is called for. It was vehemently urged that the decision of the Apex Court in the matter of Bipin Shantilal Panchal (supra) will not be applicable to this case because the same is not establishing any ratio decidendi under Article 141 of the Constitution of India. Learned Advocate Mr. Shah in this respect has relied upon a decision of the Apex Court in the matter of Union of India v. Dhanwani Devi, reported in (1996) SCC 44, relying upon Paras 9 and 10 of the decision, it was urged that the enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. It was submitted that it is only the principle laid down in the judgement that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as referred by the learned Advocate for the respondent No. 1 what is decided by the Apex Court in Bipin Shantilal Panchal's case (supra) is ratio decidendi and has binding effect under Section 141 of the Constitution of India. Not only the question of extension of period for the completion of trial was under consideration of the Supreme Court but the very vital question of speedy trial in the Trial Court was under consideration before the Supreme Court and, therefore, the Supreme Court was pleased to open the judgment in following words: 1. This is yet another opportunity to inform the Trial Courts that despite the procedural trammels and vocational constraints we have reached a stage when no effort shall be spared to speed up trials in the criminal courts. It causes anguish to us that in spite of the exhortations made by this Court and a few High Courts, time and again, some of the Trial Courts exhibit stark insensitivity to the need for swift action, even in cases where the accused are languishing in prisons for long years as undertrials, in accelerating the process during trial stage. Therefore, what is decided by the Supreme Court in Paras 13, 14, 15 and 16 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence taking stage, would not be wasted on account of raising such objection and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 16. We, therefore, make the above as a procedure to be followed by the Trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence. 6. True it is that the courts must admit the evidence in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Addl. Sessions Judge closing down the evidence and to conclude at the recording of the evidence stage that those statements were inadmissible in evidence is clearly in breach of the direction of the Apex Court in Bipin Shantilal Panchal's case (supra) 7. The facts go to show that the witness is yet to be examined fully, the prosecution has not been given chance to lay down the foundation to declare that PW-16 is an expert witness. What is stated by PW-16 is her qualification and the fact that the accused were brought before her and one of the accused consented to go for the Lie Detection Test. Now at this juncture before the witness proceeds further the defence and the court jumped to the conclusion that the statements recorded was closed by the learned Addl. Sessions Judge. Even, the statements which were held irrelevant and inadmissible were not allowed to be brought on the record and, therefore, as has been apprehended by the Supreme Court in Bipin Shantilal Panchal's case has taken place in this case that this Court is deprived of the material which is held inadmissible by the Trial Court. The order, therefore also, is required to be quashed and set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
