The rejection of a request for further cross-examination must not violate the legal rights of the petitioner and should be examined in light of the evidentiary value of the oral evidence.

ORDER :

1. The petition, under Section 401 read with 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), is filed challenging the order dated 25.1.2023 passed below Exh.508 and Exh.529 i.e. the deposition of witness no.16 in Special NDPS Case no.3 of 2018 by the learned Special Judge, Banaskantha urging that the Hon’ble Judge has forbidden the petitioner to ask certain relevant questions during the cross-examination of the said witness and therefore, prayer is made to direct the learned Trial Court to recall the witness no.16 so as to enable the petitioner to further cross-examine the said witness in Special NDPS Case no.3 of 2018 pending before the learned Special Judge, Banaskantha.

2. Learned Senior Advocate Mr. K.B. Anandjiwala for the petitioner stated that the prayer is made to recall the witness no.16 only for the limited purpose of establishing a contradiction by using the previous statements of the same witness recorded earlier and to allow the petitioner–accused to ask the pending question on page no.120 of the said witness and further subsequent questions which may arise subject to the answers of the depositions of the said witness to the said question.

3. Mr. Anandjiwala, referring to the record submits, that the petitioner is accused no.2 in NDPS Case and witness no.16 - Ramanbhai Parsottamdas Patel whose examination-in-chief was recorded before the concerned Court came to be concluded on 3.1.2023 and soon the cross-examination commenced, it continued on 4.1.2023, 10.1.2023, 11.1.2023, 12.1.2023, 17.1.2023, 18.1.2023, 19.1.2023, 21.1.2023 and finally got concluded on 25.1.2023.

4. Mr. Anandjiwala submits that during the course of cross-examination of the witness, a question was put forth by the defence advocate to establish the contradiction while the learned Public Prosecutor raised an objection to the said question, and on hearing the parties to the question of law, the learned Judge disallowed the defence advocate of the petitioner to ask or contradict the said question with an observation in the deposition on 25.1.2023 that the objection raised by the Public Prosecutor is sustainable. Mr. Anandjiwala submitted that thereafter, the cross-examination further proceeded to be concluded on the same day.

5. Mr. Anandjiwala further stated that since the objection raised by the learned Public Prosecutor was confirmed, the defence advocate gave an application at Exh.529 on 25.1.2023, since they wanted to challenge the issue before this Court on the ground of involvement of question of law and therefore, prayer was made before the learned Trial Court Judge requesting for time to postpone/defer the further cross-examination of the said witness, which as per the record came to be rejected by the learned Trial Court Judge.

6. Referring to provision of Section 145 of the Evidence Act, Senior Advocate Mr. Anandjiwala submitted that the request was made to the learned Trial Court Judge to contradict witness no.16 – R.P. Patel in connection with his previous statement to establish the contradiction by producing the evidence of said witness who was a Police Sub-Inspector raiding party at the relevant point of time in connection with Prohibition CR nos. 51/1996 to 54/1996, which came to be registered at Agthala Police Station, Banaskantha at the time when the FIR in connection with the impugned matter came to be registered. Mr. Anandjiwala submits that the evidence of the said witness no.16 in connection with the aforesaid FIRs and the averments made in Paragraph 4 of the examination-in-chief in Special NDPS Case no.3 of 2018 before the learned Special Judge, Banaskantha was contradictory in nature and the said deposition was required to be considered/acknowledged by the said witness and was to be brought on record in confirmity with the provisions of Section 145 of the Evidence Act and thus, submits that for a fair trial, Exh.529 was given which was rejected on 25.1.2023 and according to Mr. Anandjiwal