Del HC | No prior permission required to be taken by party seeking to lead secondary evidence; law on S. 65 of Evidence Act explained

Delhi High Court: Sanjeev Sachdeva, J. while holding that no prejudice was caused to the petitioner, dismissed his petition filed against the order of the trial court whereby it had allowed an application filed by the Narcotic Control Bureau under Section 65 of the Evidence Act, 1872.

Subject application was filed by the Bureau contending that some relevant files, required for the purposes of prosecution, were misplaced and therefore permission was sought to lead secondary evidence. The application was allowed by the trial court. Aggrieved thereby, the petitioner filed the present criminal revision petition.

In the High Court’s opinion: “…. no application is required to be filed by a party seeking permission under Section 65 Indian Evidence Act to lead secondary evidence.” It was held: “merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.” The law on the subject was explained by the Court thus:

Section 61 of the Indian Evidence Act lays down that contents of a document may be proved by primary or secondary evidence. Section 63 defines Secondary Evidence. Section 64 provides that documents must be proved by primary evidence, except in cases thereafter mentioned i.e. in Section 65, Section 65 A and Section 65 B.

Section 65, Indian Evidence Act, permits secondary evidence to be led in the contingencies mentioned therein. Section 65 does not contemplate the filing of any application or seeking prior permission of the court for leading secondary evidence.

A party producing secondary evidence before a court has to satisfy the conditions mentioned in Section 65 of the Indian Evidence Act and only when the conditions of Section 65, Indian Evidence Act are satisfied, secondary evidence would be admissible.

While adducing secondary evidence, a party shall have to lead evidence firstly to show the existence of the contingency or situation stipulated in Sections 65 and 65B, as the case may be and Secondly lead evidence in proof of the said document.

Only after the evidence is led before the court, would the court be in a position to form an opinion as to whether circumstances/situation, as stipulated under Section 65 Indian Evidence Act, making secondary evidence admissible, exist or not.”

In such view of the matter, it was found that the impugned order neither favoured the Bureau nor prejudiced the petitioner. Therefore the petition was dismissed. However, it was clarified that the Bureau would have to lead evidence to show the requirements of Section 65 were satisfied prior to the secondary evidence being admissible. [Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, decided on 06-05-2019]

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