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2001 DIGILAW 250 (BOM)

Ritesh Moraskar v. State

2001-03-15

A.M.KHANWILKAR

body2001
ORAL JUDGMENT A.M. Khanwilkar, J.-This appeal takes exception to the order passed by the Special Judge, NDPS Court. Mapusa, dated February 25, 2000 in Special Criminal Case No. 11/98. The appellant has been convicted for the offence punishable under Section 21 of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lakh. in default to undergo another one year Simple Imprisonment. 2. It will be unnecessary to dwell upon the facts and evidence that has come on record while deciding the present appeal. The short ground on which this appeal should succeed is on the basis of the grievance made in grounds (vii) and (viii) of the appeal memo. In substance, the grievance is that the appellant has been deprived of a fair opportunity to cross-examine PW 6, the Investigating Officer. According to the appellant, an application in writing was made before the trial Court which was marked as M-12, in which the appellant made a grievance that the Investigating Officer has already been examined as PW 6 and therefore it would be inappropriate to permit the prosecution to examine any other witnesses thereafter. By the said application, the appellant specifically prayed that, in the alternative, the I.O. be recalled for cross-examination and also permit the appellant to put contradictions to the I.O. There is no dispute that the said application was filed on 18th January, 2000 and the same has been taken on record by the trial Court and marked as M-12. This is fortified from the roznama dated 18th January, 2000. Besides the said application, the appellant has also filed other applications. being M-13 and M-14 to place on record that the appellant wanted to put certain questions to PW 6, but which were not permitted. Although the trial Court has passed an order on the applications M-13 and M-14 respectively, however, admittedly no order has been passed on the application M-12. being M-13 and M-14 to place on record that the appellant wanted to put certain questions to PW 6, but which were not permitted. Although the trial Court has passed an order on the applications M-13 and M-14 respectively, however, admittedly no order has been passed on the application M-12. In other words, the main grievance made in this appeal is that due to denial of permission to the appellant to cross-examine PW 6, it has occasioned serious miscarriage of justice and which is a good ground for setting aside the impugned order and remitting the matter to the trial Court to decide it afresh after permitting the appellant to cross-examine PW 6, including permitting the appellant to put contradictions to the said witness. 3. The learned P.P. fairly concedes that in view of the record before the trial Court, the contention raised on behalf of the appellant for permitting the appellant to cross-examine PW 6, cannot be seriously doubted. Insofar as the main prayer in application M-12 that no other witness be allowed to be examined since the I.O. was already examined, the same deserves to be stated to be rejected. However, there is force in the alternative prayer sought in the said application and the learned P.P. has therefore fairly not resisted the same. Unquestionably, cross-examination is universally acknowledged to be a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his version. It is well settled that a right to cross-examine a witness is an integral part of the examination of a witness; and failure to provide a fair opportunity to the accused to exercise such right, within the permissible norms under the Evidence Act, would entail the examination of that witness incomplete and ineffective. No doubt, the accused at the trial could waive or abandon this right, but in the present case, the accused has expressly asserted his right in the form of applications marked as M-12, M-13 and M-14. In the circumstances, the trial Court could not have ignored the said request and was obliged to allow the appellant's prayer therefor. It is well settled that the right of cross-examination cannot be curtailed or circumscribed in any manner and denial of an opportunity of a fair cross-examination in any manner would necessarily result in injustice to the accused which would be fatal. It is well settled that the right of cross-examination cannot be curtailed or circumscribed in any manner and denial of an opportunity of a fair cross-examination in any manner would necessarily result in injustice to the accused which would be fatal. In my view, the defect which has occurred in the conduct of the trial in the present case, is a serious defect which vitiates the decision; and therefore it is not possible to sustain the impugned decision on this count alone. In the circumstances, I have no other option, but to set aside the impugned order of conviction and remit the matter to the trial Court, to decide it afresh, after permitting the appellant to cross-examine the I.O. (PW 6). The trial Court shall also permit the appellant to put all the relevant questions; and in case the trial Court is of the opinion that the questions are not relevant, shall 'record reasons therefor, so that this Court will have the advantage of considering the efficacy of the said questions including the grievance regarding fairness of the trial. 4. For the aforesaid reasons, this appeal succeeds. The impugned order is set aside and the case is remanded to the trial Court for retrial as aforesaid. It is made clear that no other aspect has been examined by this Court; and the trial Court would decide the matter afresh after giving fair opportunity to the appellant to cross-examine PW 6 without being influenced by any of the observations in the judgment which is set aside or in the present decision. The trial Court shall decide the matter expeditiously and preferably within three months from the date of receipt of the writ of this Court. The Superintendent of Central Jail, Aguada, is directed to produce the appellant before the trial Court on 31st March, 2001 to enable the trial Court to fix the next date of hearing. 5. In view of the order passed in the main appeal no further orders are necessary in the miscellaneous application. Appeal allowed.