1 2025:CGHC:23483 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1662 of 2025 1 - Mandeep Sharma S/o Satveer Sharma, Aged About 34 Years, R/o Milgor, Aman Nagar, Hisar, P.S. City Kotwali, Hisar (Haryana). ... Petitioner versus 1 - State of Chhattisgarh, Through: The District Magistrate, Raipur, Chhattisgarh. ... Respondent --------------------------------------------------------------------------------------- For Petitioner : Mr. N. Naha Roy, Advocate For Respondent/State : Ms. Pragya Shrivastava, Dy. G.A. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 12.06.2025 1 Heard. 2 The present petition has been filed by the petitioner under Section 528 of the BNSS, 2023 being aggrieved by the impugned order dated 15.04.2025 passed in Special Criminal Case No. 44/2018 by the Learned Special Jude (NDPS), Raipur (C.G.) whereby his opportunity to cross- examine the investigating officer has been closed and thereafter while rejecting the application filed on his behalf Digitally signed by HEERA LAL SAHU Date: 2025.06.13 10:44:23 +0530 2 under Section 317 of the Code of Criminal Procedure, 1973, his bail bond/surety has been cancelled and a warrant of arrest has been directed to be issued for securing his presence. 3 The case of the petitioner is that the petitioner is being subjected to a criminal trial in a Special Criminal Case No. 44/2018 before the learned Special Judge (NDPS) Raipur (C.G.) under Section 20(b) of the NDPS Act, 1985. In the course of trial the cross-examination of the IO was fixed on 15.04.2025, when the present petitioner filed an application for adjourning the case in view of pendency of the CRMP No. 3533/2024 before this Hon’ble Court, which however was not only rejected vide order dated 15.04.2025 (Annexure P-1) but led to closure of the opportunity to cross-examine the IO as a whole. Further, despite there being no reason for taking such step the learned trial Court rejected the application filed on his behalf under Section 317 of the Code of Criminal Procedure, 1973, for grant of exemption from appearance and further proceeded to issue a non-bailable warrant for securing his presence before the Court on 28.04.2025 by cancelling his bail bond and surety. 4 Learned counsel for the petitioner contended that the impugned order passed by the learned trial court without appreciating the facts in their totality is per se absolutely arbitrary and not sustainable in the eyes of law. The learned trial Court utterly failed to appreciate that the opportunity to cross examination could not be denied in an extremely capricious manner as has been done in the case for the same being an integral part of fair trial and the principle of natural justice and having so recognized by the Hon’ble Supreme Court in the case of Mohd. Hussain @ 3 Julfikar Ali vs. The state (Govt. of NCT), reported in (2012) 2 SCC 584. He further submits that the learned trial Court apparently failed to have appreciated that the closure of the opportunity to cross examine would result into a clear and grave violation of the provisions of Sections 138 of the Indian Evidence Act, 1872, leading to rendering the trial proceedings invalid, since in absence of the same the evidence led by the witness (IO in the present case) could not be relied upon. As such, to impugned order is liable to be set aside directing the trial Court below to ensure cross- examination of the Investigation Officer by the petitioner, as also set aside the direction to issue non-bailable warrant against the petitioner through the same order, in order to ensure a fair and fearless opportunity to the petitioner in the trial, in the larger interest of justice. 5 Learned State counsel opposes the same. 6 Looking to the order sheet dated 15.04.2025, it is clear that despite giving sufficient opportunity to petitioner for cross examination of the witness the counsel for the petitioner/accused has not duly co-operated with the Court to cross-examine the witness i.e. IO and was tried to take time repeatedly to cross-examine the witness and no sufficient reason has been given to remain absent to cross examine the witness. Therefore, the opportunity for cross- examination of the witness has been closed by the trial Court. However, looking to the facts and circumstances of the case, this Court is of the opinion to provide one more opportunity to the petitioner/accused to cross-examine the witness. 7 In those circumstances, the impugned order of the learned trial Court is set aside. It is directed that the petitioner shall appear before the trial Court concerned on 4 27th June, 2025 and shall file an application for cancellation of the arrest warrant issued against him by the learned Trial Court. On such appearance, the learned trial Court shall consider the application on the same day. Further, it is directed that the opportunity of cross- examination of Investigating Officer, Sanjay Meravi, shall be given to petitioner Mandeep Sharma, subject to payment of the cost of Rs. 3,000/- to the District Legal Services Authority, Raipur, within one week from today. In case the cost is not deposited, the opportunity given for cross-examination shall be cancelled. In case other circumstances arise, the trial Court may decide at its discretion to change the date and time. 8 Accordingly, the CRMP is disposed of with the aforesaid direction at the stage of admission. 9 The Registry is directed to send a copy of this order to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge H.L. Sahu