Jayant Patel, J.

1. The short facts of the case are that as per the petitioner, after the arguments were completed but before the judgement was pronounced, the application was made through jail by the accused for passing appropriate order to arrive at the conclusion of actual quantity of contraband drug. The said application was treated as Ex. 129 . The learned Sessions Judge , after the hearing of both the sides, observed that the re-testing may not be required but when admittedly CRCL has carried out the quantitative analysis, the same can be produced by issuing summons to the witness concerned.

2. The petitioner, State Government through Narcotic Control Bureau has approached this Court challenging the said order passed by the learned Sessions Judge dated 15.5.2004.

3. Heard Mr. Nanavati, learned Counsel for the petitioner, Mr. Kapadia and Mr. Saiyed, learned Counsel for original accused - Respondents No.1 and 2 and Mr. Kogje, learned APP for the State of Gujarat.

4. The perusal of the order passed by the learned Judge shows that the learned Sessions Judge has exercised the judicial discretion on the basis of the reasons recorded on internal pages No.5 and 6 of the order. The said reasons, inter alia, provide that the learned Sessions Judge has found that instead of accepting the request for sending the sample for quantitative analysis to CRCL, New Delhi, as the said test had already been carried out by the said Laboratory, the concerned Expert needs to be summoned with his entire record of examination which would include the work-sheet and other notes, if maintained separately.

5. The said order appears to be purely a discretionary order passed by the learned Sessions Judge. If the Court, considering that the test is already conducted, the papers can be called for and the same may be helpful to the Court at the time when final decision is to be taken, has passed the order of issuing summons to the witness, it cannot be said that the exercise of judicial discretion is so perverse which may call for interference by this Court. Further, the impugned order passed by the learned Sessions Judge of issuing summons to the witness for properly conducting of the trial, cannot be said to be an error of jurisdiction on the part of the learned Sessions Judge.

6. Mr. Nanavati, learned Counsel appearing for the petitioner, however, attempted to submit that the reliance placed upon two decisions of Bombay High Court in case of Gousia George Fernandes v. State of Maharashtra, reported in 2004(1) JD 139 and in case of Karansingh Kumansingh Rajput v. State of Maharashtra, reported in 2004(1) JD 107 is ill-founded in as much as he submitted that the percentage containing contraband item from the item which is seized is irrelevant and, therefore, he submitted that the learned Sessions Judge ought not to have passed the impugned order of recalling the witness from CRCL, New Delhi, when earlier Dr. Dahya of CRCL was already examined. As such what weightage should be given to the percentage of contraband item in the item which is seized is a matter which is to be considered by the Court at the time when the judgement is to be rendered on conviction and also on quantum of punishment and, therefore, merely because passing reference is made, it cannot be said that the learned Sessions Judge has concluded on the said aspect. It is true that in normal circumstances the Court may not recall the witness for which the evidence is already taken with a view to curtail the delay of completing the trial, but at the same time, if there are extraordinary circumstances or the Court finds that there is valid reasons to recall the witness for having complete record of the case or certain clarification is required, there is no bar operating against the power of the Court to recall the witness. In the present case it appears that the learned Sessions Judge has found that as per Dr. Dahya quantitative analysis of the sample is being conducted in routine course and the learned Sessions Judge has found that when such material is already there and if it called for and produced in the present case, the same can be considered ultimately if action arises for such purpose and, therefore, the judicial discretion is exercised by recalling the witness. As observed earlier, such an exercise of the judicial discretion cannot be said to be perverse or will cause any serious injustice to either parties to the proceedings.

7. Under these circumstances, the order passed by the learned Sessions Judge which is impugned in this petition is not required to be interfered with by this Court in exercise of power under Article 227 of the Constitution of India.

8. In view of the above, the petition fails. Hence, the same is rejected. Rule discharged. I. R. vacated.

9. In view of the order passed in the main Special Criminal Application, no orders are required to be passed in Criminal Misc. Applications No.10011/2004 and No.7710/2005. Hence, both the applications shall stand disposed of accordingly. Office to send the writ expeditiously.