Lalu Alias Lal Singh and anr. Vs. State of M.P. - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs.orderj.g. chitre, j.1. being aggrieved by the order dated 26-9-96 passed by iiird addl. sessions judge, mandsaur presided by shri shashikiran tamrakarin s. t. no. 123/94, offence under section 302/34 i.p.c. whereby p.w. 12 a.s.i. mewalal dube is recalled for further examination, in spite of the fact that p.w. 12 was examined and cross-examined by the defence and on 22-8-96 prosecution closed their evidence, petitioners are filing this revision petition.brief statement of facts :that petitioners are facing trial under section 302/34 i.p.c. in s. t. no. 123/94, pending before the learned lower court. that, on 22-8-96, prosecution closed their evidence and the case was posted for accused's (sic) 9-10-96.shri s.m. jain learned counsel for the applicant heard.shri jain is making a prayer that the order which has been passed by 3rd addl. sessions judge mandsaur on 26-9-96 be set aside as it is illegal. he submitted further that by summoning h.c. rajaram for giving evidence in the said sessions trial, the court is allowing the prosecution to fill up a lacuna. he further submitted that before passing of this order, the prosecution has already closed its case and there was no reason for calling this witness. the trial court had no right to summon the witness suo motu. he made reference to the certified copy of the order sheet of the relevant dates in that s. t.2. certified copy of the order sheet shows that on 22-8-96 the addl. p. p. shri dube had informed the court that the prosecution was closing the evidence. the order sheet also shows that thereafter the court fixed the case on 26-8-96 for examination of the accused in view of the provisions of section 313 of the code of criminal procedure 1973 (hereinafter referred to as 'code'). on 26-8-96 an adjournment was sought by the defence as the accused was not present before the court and thereafter the case was posted for further hearing on 29-8-96. on that date the said case could not be taken up because the presiding judge was on leave.3. on 30-8-96, court found that on 10-5-95 deceased narayan son of manaji had filed a report against the accused in nahargarh police station which was registered at serial no. 156/94 by h.c. rajaram. in view of that, the court found that the said report was relevant and material for just decision of the said sessions trial and, therefore, the court suo motu summoned the said h.c. rajaram for the purpose of getting examined in context with the said report.4. shri jain placed reliance on a judgment of this court in the matter of pritam v. state of m.p., (1994) 2 mp wn 351 note no. 262 wherein s. b. of this court held that the defence had no right to recall a witness who was examined in chief and cross-examined fully. shri jain also placed reliance on a judgment of supreme court in the matter of mir mohd. omar v. state of w.b., air 1989 sc 1785 : 1989 cri lj 2070 to substantiate his arguments. it appears that it has been forgotten that these cases are dealing with 're-calling of a witness who has been examined-in-chief and cross-examined fully'. here is the case in which a report was lodged by the deceased against the accused in nahargarh police station on 10-5-1994 bearing serial no. 156/94 reduced it in writing by h.c. rajaram and court found that examination of the said head constable is material in just decision of the sessions trial and, therefore, the court decided to summon and examine h.c. rajaram suo motu.5. section 311 of the cr. p.c. empowers the court to examine any prosecution witness as a witness though not summoned at any stage of enquiry or trial or other proceeding, under the code, if it appears to the court that his evidence is essential for just decision of the case. here it is pertinent to note that the said h.c. was neither examined in examination-in-chief nor cross-examined by the defence.6. the prosecution agency may afford to be unmindful of the importance of examining a prosecution witness, but if the court finds that the evidence of such a witness is material, essential for just decision of the case, the court is certainly empowered to examine such a witness though not summoned by the prosecution. the prosecution may afford to close its evidence being unmindful of the importance of the evidence of a particular witness or witnesses but it does not mean that by such act on the part of the prosecution, the court is prohibited from examining such a witness or witnesses if the court finds that the evidence of such a witness or witnesses is essential for just decision of the case. after all, the court has to give just decision in the case placed before it and tried by it, by considering the material collected during the investigation keeping in view the legal provisions. the court has also to keep in mind the golden principle of innocence and it has also to see that no prejudice is caused to the defence of accused. after examination of such a witness or witnesses, the accused should be given opportunity to cross-examined him/them. the court is also entitled to put questions to such a witness or witnesses if the court finds proper in the interest of justice.7. as a result of the aforesaid discussion, the revision application fails and is dismissed without notice to other side.

Judgment:
ORDER

J.G. Chitre, J.

1. Being aggrieved by the order dated 26-9-96 passed by IIIrd Addl. Sessions Judge, Mandsaur presided by Shri Shashikiran Tamrakarin S. T. No. 123/94, offence Under Section 302/34 I.P.C. whereby P.W. 12 A.S.I. Mewalal Dube is recalled for further examination, in spite of the fact that P.W. 12 was examined and cross-examined by the defence and on 22-8-96 prosecution closed their evidence, petitioners are filing this revision petition.

BRIEF STATEMENT OF FACTS :

That petitioners are facing trial Under Section 302/34 I.P.C. in S. T. No. 123/94, pending before the learned Lower Court. That, on 22-8-96, prosecution closed their evidence and the case was posted for Accused's (sic) 9-10-96.

Shri S.M. Jain learned counsel for the applicant heard.

Shri Jain is making a prayer that the order which has been passed by 3rd Addl. Sessions Judge Mandsaur on 26-9-96 be set aside as it is illegal. He submitted further that by summoning H.C. Rajaram for giving evidence in the said Sessions Trial, the Court is allowing the prosecution to fill up a lacuna. He further submitted that before passing of this order, the prosecution has already closed its case and there was no reason for calling this witness. The trial Court had no right to summon the witness suo motu. He made reference to the certified copy of the order sheet of the relevant dates in that S. T.

2. Certified copy of the order sheet shows that on 22-8-96 the Addl. P. P. Shri Dube had informed the Court that the prosecution was closing the evidence. The order sheet also shows that thereafter the Court fixed the case on 26-8-96 for examination of the accused in view of the provisions of Section 313 of the Code of Criminal Procedure 1973 (hereinafter referred to as 'Code'). On 26-8-96 an adjournment was sought by the defence as the accused was not present before the Court and thereafter the case was posted for further hearing on 29-8-96. On that date the said case could not be taken up because the Presiding Judge was on leave.

3. On 30-8-96, Court found that on 10-5-95 deceased Narayan son of Manaji had filed a report against the accused in Nahargarh Police Station which was registered at serial No. 156/94 by H.C. Rajaram. In view of that, the Court found that the said report was relevant and material for just decision of the said Sessions Trial and, therefore, the Court suo motu summoned the said H.C. Rajaram for the purpose of getting examined in context with the said report.

4. Shri Jain placed reliance on a judgment of this Court in the matter of Pritam v. State of M.P., (1994) 2 MP WN 351 note No. 262 wherein S. B. of this Court held that the defence had no right to recall a witness who was examined in chief and cross-examined fully. Shri Jain also placed reliance on a judgment of Supreme Court in the matter of Mir Mohd. Omar v. State of W.B., AIR 1989 SC 1785 : 1989 Cri LJ 2070 to substantiate his arguments. It appears that it has been forgotten that these cases are dealing with 're-calling of a witness who has been examined-in-chief and cross-examined fully'. Here is the case in which a report was lodged by the deceased against the accused in Nahargarh police station on 10-5-1994 bearing serial No. 156/94 reduced it in writing by H.C. Rajaram and Court found that examination of the said head constable is material in just decision of the Sessions Trial and, therefore, the Court decided to summon and examine H.C. Rajaram suo motu.

5. Section 311 of the Cr. P.C. empowers the Court to examine any prosecution witness as a witness though not summoned at any stage of enquiry or trial or other proceeding, under the Code, if it appears to the Court that his evidence is essential for just decision of the case. Here it is pertinent to note that the said H.C. was neither examined in examination-in-chief nor cross-examined by the defence.

6. The prosecution agency may afford to be unmindful of the importance of examining a prosecution witness, but if the Court finds that the evidence of such a witness is material, essential for just decision of the case, the Court is certainly empowered to examine such a witness though not summoned by the prosecution. The prosecution may afford to close its evidence being unmindful of the importance of the evidence of a particular witness or witnesses but it does not mean that by such act on the part of the prosecution, the Court is prohibited from examining such a witness or Witnesses if the Court finds that the evidence of such a witness or witnesses is essential for just decision of the case. After all, the Court has to give just decision in the case placed before it and tried by it, by considering the material collected during the investigation keeping in view the legal provisions. The Court has also to keep in mind the golden principle of innocence and it has also to see that no prejudice is caused to the defence of accused. After examination of such a witness or witnesses, the accused should be given opportunity to cross-examined him/them. The Court is also entitled to put questions to such a witness or witnesses if the Court finds proper in the interest of justice.

7. As a result of the aforesaid discussion, the revision application fails and is dismissed without notice to other side.