The central legal point established in the judgment is the discretion of the trial judge in granting permission for the examination of witnesses under section 233 of the Cr.P.C., and the importance of providing cogent reasons for such decisions.

ORDER :

1. The prayer is made to examine the correctness, legality and propriety of order below Exhibits-648 and 649 dated 13.04.2023, impugned in Criminal Revision Application No.534 of 2023 and Exhibit-725, dated 27.04.2023, impugned in Criminal Revision Application No.541 of 2023 passed by the 3rd Additional Sessions Judge and Special Judge [NDPS Act], Banaskantha, Dist. - Palanpur in Special [NDPS] Case No.3 of 2018, and accordingly prayed to quash and set aside the same.

2. Mr. A.J. Yagnik, learned advocate for the applicant stated the list of about 69 witnesses were provided by the prosecution and out of those, 19 were examined, while 50 were dropped. He submits that at the stage of defence, an application was moved with a list on 06.04.2023 by the present applicant to examine about 19 witnesses. Mr. Yagnik submitted that permission to examine four witnesses were granted, and out of them, one has died; while one turned hostile, and the permission for examination of one was with qualification that he could be only contradicted and another witness prayed for is a accused turned approver, which was rejected. Mr. Yagnik stated that F.S.L. officer, Mr. M.P. Chaudhry, listed at serial no.7, was also not granted permission for examination; thus stated that as a right of fair trial equal opportunity is required to be granted to both the sides.

3. While countering the argument, Mr. Mitesh Amin, learned Public Prosecutor stated that, while after examining 19 witnesses, a closure pursis was filed, and an application justifying the reason for dropping witnesses was filed by the prosecution, and thereafter, the matter was posted for further statement on 29.03.2023 of the accused. Mr. Amin stated that initially one whatsapp list to examine four witnesses was placed, but later on the accused disowned stating that he had not given any such instruction to his Advocate.

3.1 Referring to the provision of section 233 of the Cr.P.C., Mr. Amin submitted that the right of the accused to examine the witnesses or production of any document or thing is not absolute; it is only on the discretion of the Judge, for the reasons to be recorded, the learned trial Court Judge may refuse the application on the ground, if it is found that the purpose behind such application is vexatious or to cause delay or, even if, learned trial Court Judge considers it as defeating the ends of justice.

3.2 Referring to the witness list, Exh.648 placed by the accused, Mr. Amin submitted that four of the persons at Sr. Nos.1, 10, 12 and 18, were permitted to be examined, while the particulars mentioned at Sr. No.1 is concerned, it relates to the calling of the original inquiry report and papers pursuant to inquiry conducted by Mr. D.K. Dhagal. It is stated by Mr. Amin that application under section 91 Cr.P.C. was moved and at list, Exh.236, about 207 documents were placed on record containing volume of 1046 pages, and thus, the learned trial Court Judge permitted the examination of the said witness for contradicting him, where the inquiry was on the application made by Secretary, Bar Association, Pali. The person cited at Sr. No.2 had turned as an approver. It is submitted that the said witness was examined for about three months as P.W.9. The order was challenged of his turning as an approver, who was even again recalled and was examined at length; thus Mr. Amin submitted that no prejudice has been caused to the applicant denying the examination of the approver, who was a P.I. to the present applicant.

3.3 Mr. Amin stated that for the person cited at Sr. No.3 had been examined as defence witness no.1, while the person cited at Sr. No.4 – Dy. S.P. J.R. Mothaliya, the prayer was allowed, but he was dropped by the defence, and the person cited at Sr. No.5 – Mr. D.K. Dhagal, which is also connected at Sr. No.1 the said witness has been examined, and contradictions have been asked at length, as defence witness no.2. It is stated that P.I. - Dilip Agarwal at Sr. No.6 was assisting