IMPORTANT POINT
The prosecution is required to open the case and disclose charges and evidence against the accused as mandated by section 226 of the Cr.P.C. to ensure a fair trial.

JUDGMENT :

1. Rule. Learned advocate Mr. Kartik V. Pandya and learned APP waives service of notice of Rule on behalf of respective parties. Rule is fixed forthwith.

2. The present application has been filed under section 397 and 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), challenging the order dated 15.07.2019 below Exh.42 in NDPS Special Case No.4/2015 passed by Special Judge, NDPS Court, Surat.

3. Mr. Narendra L.Jain, learned advocate for the applicant submitted that five persons came to be arrested in the year 2015 by the complainant and its officers, who were detained for the alleged offence under the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as “NDPS Act”). After the investigation, the original complainant i.e. respondent no.2 herein, had preferred to file a complaint under sections 36A(1)(iv) of the Narcotic Drug and Psychotropic Substances Act,1985 (as amended).

3.1 Advocate Mr. Jain stated that initially all the relevant documents including certain material documents were not made available to the applicant and the co-accused, therefore, the applicant, vide Exh.42, on 15.07.2019, made a prayer seeking direction against the prosecution to open the case in terms of section 226 of the Criminal Procedure Code (for short ‘Cr.PC.) Mr. Jain submitted that the application came to be rejected and aggrieved by the same the applicant is before this Revision Court.

3.2 Referring to the judgment in the case of Manishaben Gajjugiri Goswami Vs. State of Gujarat, reported in 2022 (1) GLR 133, and the judgment in case of Navinchandra Vishanuprasad Shah Vs. State of Gujarat & Anr., reported in 2014 (2) GLR 1129, Advocate Mr. Jain submitted that the charges cannot be framed mechanically and the Court is required to follow the procedure as laid down under section 226 of Cr.P.C., so that the accused would be made aware of the case against him.

3.3 Advocate Mr. Jain stated that opening of the case by the prosecution is not a frivolous exercise, but it is to safeguard the interest of both the sides, and the section itself mandates that when the accused appears or is brought before the Court in pursuance of the commitment of the case under section 209, the prosecutor is required to open his case by describing the charge brought against the accused, and by stating by what evidence he proposes to prove the guilt of the accused. Advocate Mr. Jain submitted that the provision would give a clarity to the Court before framing of the charge so that the facts of the case becomes clear to the Court as well as the accused right to defend would be ensured, as he would get to know the information with regard to the case as well as, could have the knowledge of the evidence, which are proposed to be produced to prove against him.

3.4 Advocate Mr. Jain has referred to the judgment of Hon’ble Apex Court in Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, IN RE Vs. State of Andhra Pradesh And Others, reported in (2021) 10 SCC 598, to state that the courts are now required to follow directions as laid down; and further submitted that right of the accused to properly defend himself/herself can be ensured by having access to all statements, documents and material objects under sections 207/208 Cr.P.C.

3.5 Referring to para-11 of the said judgment, Advocate Mr. Jain submitted that the accused are required to be furnished with list of documents and statements, which the prosecution relies on and are kept in the dark about other material, and even material which may be in possession of the police, exculpatory in nature, assisting the accused, so that the accused may have the fair trial. Mr. Jain further stated that the Hon’ble Supreme Court has observed that the Courts in all criminal trial should hold a preliminary hearing observing the procedure under section 294 Cr.P.C.

4. Mr. Kartik V.Pandya, learned advocate for Narcotic Control Bureau submitted that the p