HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc(Pet.) No. 5489/2022

Ahmad Nawaz @ Chidiya S/o Sh. Jan Mohammad @ Jani, Aged

About 45 Years, R/o Gudiya, Tehsil And PS Tibbi, Presently R/o

Ward No. 25, Tehsil Sangaria, Distt. Hanumangarh (Rajasthan)

(Presently In Custody In Sub Jail Sangaria)

----Petitioner

Versus

State Of Rajasthan, Through P.P.

----Respondent

For Petitioner

:

Mr. Harshad Bhadu

For Respondent

:

Mr. S.K. Bhati, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/12/2022

1.

This Criminal Misc. Petition under Section 482 has been

preferred claiming the following reliefs:-

“a. the petition may kindly be allowed and the Order dated

21.06.2022 passed by the learned AD & SJ, Sangaria, Dist.

Hanumangarh in Session Case No.16/2017 may be

quashed and set aside; and that

b. the evidence of witnesses recorded in the absence of

the accused may be quashed and set-aside and the

learned Trial Court may be directed to record such

evidence de-novo after ensuring presence of the accused

in Court at the time of taking such oral evidence; and that

c.

any other appropriate/consequential orders or

directions that may be deemed just and proper in the facts

and circumstances of the case may be passed, in the light

of equity, justice and good conscience.”

2.

Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that, an F.I.R. was registered on

27.05.2017 for the offences under Sections 8/18 & 29 of the

N.D.P.S. Act, 1985 against the present petitioner, on the basis of a

report received from a confidential informant. The petitioner was

apprehended at a police check-post, and upon search, was found

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[CRLMP-5489/2022]

to be in possession of the contraband (opium), weighing 4.130

kgs. i.e. a commercial quantity. Upon completion of the

investigation, a charge-sheet came to be filed for the

aforementioned offences, and subsequent thereto, the learned

Trial Court took cognizance against the present petitioner and

framed charges against him accordingly.

3.

Learned counsel for the petitioner submits that the trial

before the learned Court below is going on, and that about eight

prosecution witnesses, out of total fourteen witnesses, have been

examined, however, the accused-petitioner was not produced

before the learned Court below, despite being in judicial custody.

And thus, there is a clear violation of the provision of law, as

contained in Section 273 Cr.P.C.

4.

Learned counsel for the petitioner further submits that

despite repeated requests made on behalf of the accused before

the learned Court below, the learned Court below failed to ensure

the presence of the accused-petitioner during recording of the

evidence, and proceeded to incorrectly record the testimony of the

prosecution witnesses in his (petitioner’s) absence.

5.

Learned counsel for the petitioner also submits that two

applications, dated 25.05.2022 and 21.06.2022 were preferred on

behalf of the petitioner, praying for the same; vide the impugned

order dated 21.06.2022, the learned Court below held that the

accused-petitioner stands represented before the Court through

his pleader, thereby dispensing with his presence in accordance

with Section 273 Cr.P.C.

6.

Learned counsel for the petitioner further submits that the

impugned order is therefore not sustainable in the eye of law, and

that the learned Court below has erred in passing the said order,

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[CRLMP-5489/2022]

as it is in clear violation of the provision of law contained in

Section 273 Cr.P.C.

7.

Learned counsel for the petitioner sought to fortify the

submissions so made by placing reliance upon the judgment

rendered by the Hon’ble Apex Court in the case of Atma Ram &

Ors. v. State of Rajasthan (2019) 20 SCC 481, which was

followed by this Court in the judgment rendered in the case of