CGHC010316922026 2026:CGHC:36171 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2144 of 2026 1 - Chhotu Yadav S/o Dwarika Prasad Yadav, Aged About 23 Years R/o Gersa, Police Station Lundra, District Surguja (C.G.) 2 - Md. Atikur Rahman, S/o Rahmatullah Ansari, Aged About 42 Years R/o Uchri, Ward No. 01, Garhwa, Jharkhand. ... Petitioners versus • State Of Chhattisgarh Through P. S. Batouli, District Surguja (C.G.) ... Respondent For Petitioners : Mr. Kamlesh Patel, Advocate For State : Ms. Priya Sharma, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 14.08.2026 1. The petitioners have filed the present Cr.M.P. under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 assailing the order dated 10.04.2026 (Annexure P/7) passed by the learned Special Judge (NDPS), Ambikapur, District Surguja (CG) in Special Criminal Case (NDPS) No. 22 of 2022 whereby the application filed by the petitioners under Section 311 of Cr.P.C. 1973/Section 348 of the BNSS for giving further opportunity to cross examine the Investigating Officer (PW-09), has been dismissed by the learned trial Court. BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2026.08.17 18:44:46 +0530 2. The brief facts reflected from the record are that the petitioners are charge-sheeted for commission of offence under Section 21(C) read with Section 29 of the NDPS Act wherein Investigating Officer was examined by the prosecution on 05.07.2024 as PW-09 and his examination-in-chief could not be completed on the said date, therefore, the matter was taken up on 23.02.2026 for further examination-in-chief of this witness. The order sheet of the case dated 23.02.2026 would reveal that examination-in-chief of the investigating witness and his cross-examination on behalf of accused Yogesh Porte have been concluded on 08.01.2025, but due to paucity of time cross- examination on behalf of petitioners/accused could not be concluded, therefore, the matter was taken up on 23.02.2026 and on the said date junior counsel informed that his senior counsel is engaged in another Court, therefore, no cross-examination took place. Accordingly, the learned trial Court has closed opportunity of the petitioners/accused to cross-examine the Investigating Officer (PW-09). 3. The learned trial Court while closing the rights of the applicants to cross-examine this witness has recorded its finding that the Investigating Officer (PW-09) who is posted 100 kms. away from the Court in another District and is present since 11.00 a.m. and the counsel for the defence did not appear to cross-examine Investigating Officer which depicts that the counsel deliberately avoided cross- examination of this witness. 4. Thereafter, the petitioners had moved an application on 09.03.2026 when the matter was fixed for statement of the accused. The learned trial Court vide impugned order dated 10.04.2026, has rejected the same. Being aggrieved with the said order the petitioners have preferred the instant petition. 5. Learned counsel for the petitioners would submit that the learned trial Court has closed the right of the petitioners, as the counsel engaged by the petitioners/accused could not appear before the Court on the said date. He would further submit that the petitioners/accused ought not to suffer on account of the negligence of their counsel. He would further submit that the petitioners/accused did not deliberately remain absent before the learned Trial Court and would submit that the situation was beyond the control of the counsel as he was also engaged in another case before the Court and would pray for allowing the instant petition by giving an opportunity to cross-examine the Investigating Officer. 6. Per contra, learned counsel for the State opposing the submission would submit that the trial Court has not committed any illegality or irregularity which warrants interference of this Court. She would further submit that when the witness was present before the trial Court, it was incumbent upon the counsel for the petitioners to remain present. She would further submit that the counsel should have shown due courtesy to the Court by informing that he/she is engaged in other matter, as such, he/she is unable to appear and should have requested that the matter be taken up at any convenient time of the Court which is not reflected from the application filed by the applicants before the trial Court thus she would pray for dismissal of the petition. 7. I have heard learned counsel for the parties and perused the record. 8. From perusal of the record, it is evident that the Investigating Officer was present before the learned Trial Court at 11:00 a.m., and the learned Trial Court waited till 1:30 p.m. for the defence counsel to cross-examine the witness, however for the reasons best known to the learned counsel appearing for the defence, the Investigating Officer could not be cross-examined. Even before this Court, no material has been placed on record to demonstrate that the learned counsel was engaged in some other matter and, therefore, he was unable to appear before the learned Trial Court. In the absence of any such material, this Court is unable to hold that the order passed by the learned Trial Court suffers from any illegality or irregularity. However, keeping in view the principles of natural justice and fair play, this Court is of the considered view that the accused ought to be afforded an opportunity to defend themselves by setting aside the order dated 23.02.2026 by which the right of the petitioners to cross-examine the Investigating Officer has been rejected as well as order dated 10.04.2026 by which the learned trial Court has rejected the application under Section 311 of Cr.P.C./348 of BNSS. 9. It has been informed by the learned counsel for the petitioners that the trial is fixed on 18.08.2026 for recording of the statement of the accused, on the said date the learned trial Court will fix the date for evidence of Investigating Officer and the learned trial Court shall afford only two opportunities to the defence to conclude the cross- examination of the Investigating Officer. It is further directed that learned trial Court shall fix a date for recording the evidence of the Investigating Officer, preferably on 08.09.2026 and 09.09.2026 thereafter, the Trial Court shall proceed with the matter in accordance with law. The aforesaid opportunity shall be granted by the trial Court subject to payment of cost of Rs. 1,500/- payable by the petitioners to the District Legal Services Authority/legal aid. The payment of cost is condition precedent for availing the aforesaid opportunity of cross- examination. 10. With the aforesaid observation and direction, the instant Cr.M.P is allowed. Sd/- (Narendra Kumar Vyas) Judge Bhumika