Ramzani vs State of U.P. and Another

S.C. Agarwal, J.—Heard Sri N.I. Jafri, learned Counsel for the applicant, learned A.GA. for the State and perused the material available on record.

This Application u/s 482 Code of Criminal Procedure has been filed with a prayer to quash the order dated 26.11.2010 passed by Additional Sessions Judge, Court No. 12, Ghaziabad in S.S.T. No. 308 of 2008 (State v. Ramzani) u/s 8/20 of N.D.P.S. Act, PS. Kotwali, District Ghaziabad, whereby the application moved on behalf of the applicant for permission to cross-examine the prosecution witnesses was rejected.

Learned Counsel for the applicant frankly admitted that there have been some lapses on the part of the counsel for the accused, as he did not cross-examine prosecution witnesses inspite of opportunity granted to him, but subsequently, the accused has changed the counsel and opportunity should be granted to him for cross-examination of the witnesses.

From the perusal of the impugned order, it is revealed that P.W.1 was examined in chief on 11.11.2008, P.W.2 was examined in chief on 13.8.2009 and examination-in-chief of P.W.3 and P.W.4 were recorded on 29.3.2010 and 16.11.2010 respectively, but none of the witnesses were cross-examined by learned Counsel for the defence. It is also obvious that on 26.11.2010, the accused applicant engaged another counsel, who moved an application for recalling the witnesses for cross-examination. The said application was rejected on the ground that the same has been moved with intention to delay the proceedings and the prosecution witnesses were not deliberately cross-examined.

Offence punishable u/s 8/20 of N.D.P.S. Act is a serious offence entailing grave penal consequences. No doubt, there have been some lapses on the part of the then defence counsel in not cross-examining the defence witnesses, but the interest of the accused should not suffer due to fault of the counsel. Now the new counsel has been engaged and he wants to cross-examine the witnesses. In these circumstances, it is in the interest of justice that an opportunity be granted to the applicant for cross-examination of P.W. 1 to P.W.4. subject to payment of cost.

Application u/s 482 Code of Criminal Procedure is allowed.

Impugned order dated 26.11.2010 is quashed.

Applicant is directed to deposit a sum of Rs. 3000/- before the trial Court within three weeks from today. If such a deposit is made within three weeks from today, the trial Court shall fix a date for cross-examination of P.W. 1 to P.W.4 and shall summon these prosecution witnesses and proper opportunity of cross-examination shall be granted to the applicant.

If the said amount of Rs. 3000/- is not deposited within the specified time, this Application shall stand dismissed and order passed by learned Sessions Judge shall stand revived.