ORDER
Pratibha Upasani, J.
1. This criminal writ petition is filed by the petitioner/original complainant, who is Assistant Collector of Customs, Bombay, being aggrieved by the order dated 17th March, 1994 passed by the learned Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, rejecting the application made by the complainant for recalling the prosecution witness No. 1. It is prayed that the impugned order be set aside and quashed, and the complainant’s application for recalling witness i.e. P.W. 1 on 16th March, 1994 in case No. l/CW-1989 be granted.
2. Few facts which are required to be stated are as follows :
Prosecution was initiated by Assistant Collector of Customs against two accused by name Ebrahim Haji Husen Sanghani and Jakoo Kasam Bavla for offences punishable under Section 135(1)(a) and Section 135(1)(b) bothread with Section 135(1)(i) of the Customs Act, 1962 and under Section 5 of the Imports and Exports (Control) Act, 1947. The complaint was filed on 19th August, 1988. Evidence before charge was recorded and charge was framed against both the accused. They pleaded not guilty and claimed to be tried. Prosecution examined in all four witnesses in support of its case. The last witness i.e. P.W. 4 was examined on 16th February, 1994. Thereafter, the case was adjourned for statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. Thereafter, statements of both the accused under Section 313 of the Code of Criminal Procedure, 1973, were recorded on 7th March, 1994, and the case was adjourned till 16th March, 1994 for hearing the arguments of both the sides.
3. On l6th March, 1994, application was made by the Advocate appearing for Customs Department that certain documents could not be produced during the course of recording of evidence of prosecution witnesses, and therefore, prosecution witness No. 1 be recalled and he be allowed to be examined as a witness and also be allowed to produce the documents which could not be produced during the course of recording of his evidence or evidence of other witnesses.
4. The learned Advocate appearing on behalf of the accused opposed this prayer. It was his contention that even statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, and hence, allowing the prosecution to examine or re-examine the witness, at this stage, would cause serious prejudice to the case of the accused.
5. The learned Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, after going through the Roznama and notes of evidence, found that prosecution witness No. 1, who was sought to be recalled, was first examined on 23rd November, 1989, and his examination-in-chief was deferred on the ground that he had not brought the remaining property, which was to be produced in the Court. His examination-in-chief was resumed on 19th December, 1990, and he was cross-examined by the learned Advocate for the accused before charge on 19th February, 1990. He was recalled after framing of charge and was cross-examined by the Advocate for the accused on two occasions i.e. on 21st September, 1993 and 24th October, 1993. Thereafter, P.W. 2 was cross-examined. The Customs Department examined additional witnesses i.e. P.W. 3 and P.W. 4, who were also cross-examined by the Advocate for the accused. Thereafter, the prosecution closed its case, and the matter was fixed for arguments of both the sides.
6. Thereafter, application for recalling prosecution witness No. 1 was made, when case was fixed for arguments of both the sides. When this application was made, the witness who was sought to be recalled, also was present in the Court, and he himself was unable to explain as to what prevented the Department to produce the documents in the Court on earlier occasions. The only meek explanation sought to be given by the Advocate appearing for the Customs Department was that there were different cells in the Customs Department, and the property and documents of a particular case were not kept at one place and, therefore, it was difficult to locate as to where the particular property and documents were lying.
7. The learned Metropolitan Magistrate, 32nd Court, after hearing both the sides, and after perusing the Roznama, rejected the application for recalling P.W. 1, by a reasoned order.
8. I have heard Mr. Salvi, the learned A.P.P. appearing for the respondent No. 3/ State of Maharashtra. Neither any Advocate from the Customs Department is present, nor anyone from the respondents/original accused is present. I have also gone through the entire proceedings and I find that the impugned order passed by the learned Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, is a correct order, as is revealed from the proceedings. The trial of the case was going on for more than four years. If the Customs Department was diligent enough to produce the documents, it could have produced those documents. In fact, it was their duty to do so; however, the lethargy and the laziness on the part of the Customs Department is really unpardonable. The officers concerned have been extremely negligent in not taking prompt steps to produce the documents during the course of trial. Allowing the application for recalling prosecution witness No. 1, at such a belated stage, would have been tantamount to allow the prosecution to fill up the lacunas, which is not permissible, as it would have caused prejudice to the accused. Statements under Section 313 of the Code of Criminal Procedure, 1973 also were recorded, and it was at this stage, that the Department, it appears, realised the lacuna in the prosecution case, and sought permission to recall P.W. 1 and produce the documents. The learned Metropolitan Magistrate has properly rejected the application and no interference is warranted by this Court in its writ jurisdiction under Article 226 of the Constitution of India. Hence, the following order :
Criminal Writ Petition No. 418 of 1994 is dismissed. Rule discharged. Interim order dated 23rd March, 1994 is hereby vacated.
