Punjab-Haryana High Court
Aasif Alias Aasbo vs State Of Punjab on 23 September, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:125337
CRM-M-47661-2024 1
140 THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.47661 of 2024
Date of Decision: 23.09.2024
Aasif Alias Aasbo ..... Petitioner
Versus
State of Punjab ..... Respondent
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present: Mr. H. S. Chaddha, Advocate
for the petitioner.
***
RAJESH BHARDWAJ, J.
1. Petitioner has approached this Court impugning the order
dated 17.08.2024 (Annexure P-1) whereby a criminal misc. application
filed under Section 311 of Cr.P.C. for recalling of witnesses namely,
PW-1 ASI Jognath, PW-3 DSP Ajay Singh, PW-5 SI Sartaj Singh for
further cross examination in the main case FIR No.79, dated 08.07.2022,
registered under Sections 18, 27 of NDPS Act at Police Station Nurpur
Bedi has been erroneously dismissed by the trial Court. Further prayer has
been made for staying the proceedings before the trial Court during the
pendency of the present petition.
2. It has been submitted by learned counsel for the petitioner
that the petitioner has been falsely implicated in the present FIR wherein
recovery of 3kg Opium has been allegedly recovered from him. He has
submitted that initially, petitioner was represented by the counsel whom
he engaged through the inmates in the jail. He made various efforts to
contact his counsel and apprise him about the material facts however, he
could not meet him. Thereafter, he engaged another counsel and it was
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found that the material witnesses have already been examined but they
have not been cross-examined properly on the material points. He has
submitted that the petitioner is facing the prosecution for an offence under
the NDPS Act and provisions of the same are stringent in nature. He has
submitted that the alleged quantity recovered falls under the commercial
quantity and thus, in case the charges are proved against him, the
minimum sentence he would suffer is 10 years rigorous imprisonment. He
has submitted that compliance of provisions of Section 50 of the NDPS
Act has not been made in the present case as his earlier counsel has not
efficiently cross-examined the witnesses. It is submitted that no question
regarding compliance of Section 50 of the NDPS Act and link evidence on
the factual aspects are put to the witnesses. He has submitted that the
provisions of Section 311 Cr.P.C. can be invoked at any stage prior to the
pronouncement of the judgment. He has relied upon the judgments passed
by Hon'ble the Supreme Court in "Roy V.D. versus State of Kerala",
2000(4) RCR Criminal and by this Court in "Rajiv Sood vs. State of
Punjab", 2016(1) RCR (Criminal) 67; "Karamjit Singh vs. State of
Punjab", 2024(2) RCR (Criminal) 825; "Ajay Mehra vs. Surinder
Singh", 2019(4) RCR (Criminal) 979 and "Sanjiv Kumar Rama vs. State
of Punjab", 2024 (1) RCR (Criminal) 232 and Hon'ble High Court of
Karnataka in "Sri. Umesh B. M. vs. State of Karnataka", 2023(3) KCCR
2188. He thus, submits that the petitioner be provided one opportunity for
recalling these three witnesses for their cross-examination. He also
undertakes that he would not prolong the trial and would cross-examine
the witnesses as per the terms and conditions of the order to be passed by
this Court.
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3. Notice of motion.
4. On asking of the Court, Mr. Tarun Aggarwal, Sr. DAG,
Punjab appears and accepts notice on behalf of the respondent-State. He
has submitted that the witnesses prayed to be recalled have already been
cross-examined by counsel for the petitioner and thus, there is no infirmity
in the impugned order passed.
5. Heard. On hearing counsel for the parties and perusing the
record, it is apparent that petitioner is facing the prosecution for an
offence under the NDPS Act. The recovery in the present case is 3 kg of
Opium which falls under the commercial quantity. As submitted by
counsel for the petitioner, earlier counsel did not cross-examine the
witnesses regarding the compliance of Section 50 of the NDPS Act and
the link evidences. There is no denial to the fact that provisions of the
NDPS Act are stringent in nature and hence, as per the law settled,
compliance also required to be done meticulously. The apprehension of
the petitioner that in case the charges are proved for the laxity of his
counsel in inefficiently cross-examining the prosecution witnesses then he
would suffer an irreparable loss. He submits that as per the law settled,
this Court has ample power in invoking its power under Section 311
Cr.P.C. where the facts and circumstances of the case make out a case for
invoking its power. In the case in hand, apprehension of counsel for the
petitioner cannot be ignored. He has changed his counsel and he wants to
further cross-examine the three witnesses on the material points.
6. There is no gainsaying that the provisions of Section 311
Cr.P.C. are sacrosanct in nature and have been incorporated to secure the
ends of justice. For the decision of the issue involved, the provisions of
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Section 311 Cr.P.C. is necessary which read as under:
"311. Power to summon material witnesses, or
examine person present- Any Court may, at any stage
of any inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person
in attendance, though not summoned as a witness, or
recall and re-examine any person already examined; and
the Court shall summon and examine or recall and re-
examine any such person if his evidence appears to it to
be essential to the just decision of the case."
7. From the bare reading of the provision of Section 311 Cr.P.C.,
it is apparent that the Court has ample power to re-examine or recall any
such person whose evidence appears to be essential to the just decision of
the case. However, Hon'ble Supreme Court in the case of Swapan Kumar
Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328 held
as under:-
"12. It is well settled that the power conferred under
Section 311 should be invoked by the court only to meet
the ends of justice. The power is to be exercised only for
strong and valid reasons and it should be exercised with
great caution and circumspection. The court has vide power
under this Section to even recall witnesses for re-
examination or further examination, necessary in the
interest of justice, but the same has to be exercised after
taking into consideration the facts and circumstances of
each case. The power under this provision shall not be
exercised if the court is of the view that the application has
been filed as an abuse of the process of law."
8. In the facts and circumstances of the case, the impugned
order dated 17.08.2024 is set aside. The trial Court is directed to provide
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maximum three dates to the petitioner for further cross-examining the
witnesses i.e. PW-1, PW-3 and PW-5. It is being clarified that petitioner
would not be allowed to prolong the trial and if the trial Court finds the
petitioner violating the directions of the Court then it would be at liberty
to proceed with the trial in accordance with law.
9. Petition is allowed in above-mentioned terms.
23.09.2024 ( RAJESH BHARDWAJ )
m. sharma JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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