CR.RA/630/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 630 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No. 5 Whether it is to be circulated to the civil judge? No. ========================================================= MANSUKHBHAI CHHAGANBHAI BHATT - Applicant(s) Versus INTELLIGENCE OFFICER & 1 - Respondent(s) ========================================================= Appearance : MR JB PARDIWALA for Applicant(s) : 1, MR PR ABICHANDANI for Respondent(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 05/03/2008 ORAL JUDGMENT : 1. Learned advocate Mr. Abichandani for the respondent No. 1 seeks permission to place on record written instructions F. No.NCB/AZU/CR- 05/2002/143 dated 5-3-2008 given by Intelligence Officer, NCB, Ahmedabad. The said document is ordered to be taken on record. CR.RA/630/2007 2/6 JUDGMENT 2. The petitioner by way of filing this criminal revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr. P. C.”) challenged the order dated 4-10-2007 passed below the application Exh. 267 in NDPS Case No. 1 of 2003 by learned Special Judge, 2nd Fast Track Court, Valsad, rejecting the application filed by him to examine defence witness. 3. The petitioner is being prosecuted for the offences punishable under the Narcotic Drugs and Psychotropic Substances Act (NDPS). After recording of the evidence of the prosecution witnesses, further statement of the accused u/s 313 of the Cr. P. C. was recorded. The petitioner in his further statement stated that he wants to examine defence witness. Thereafter, the petitioner gave application Exh. 267 for issue of witness summons to the witnesses named therein. The learned trial Judge after hearing, rejected the application. Being aggrieved by the said decision, the petitioner – accused has filed this criminal revision application. 4. I have heard learned advocate Mr. J.B. Pardiwala for the petitioner, learned advocate Mr. P.R. Abichandani for the respondent No.1 and learned A.P.P. Mr. K.C. Shah for the opponent CR.RA/630/2007 3/6 JUDGMENT No.-2 – State at length and in great detail. 5. Under Section 233 (3) of the Cr. P.C. where the accused is not acquitted under Section 232 of Code, he is required to be called upon to enter on his defence and adduce any evidence he may have in support thereof. If the accused applies for issue of any process for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process unless he considers, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The only reason assigned by the learned trial Judge is that no material fact is likely to come to light by calling the witness. Therefore, the reason assigned by the learned Judge is not justifiable and the learned trial Judge has committed error in passing the impugned order. 6. The application indicates that the petitioner sought issue of summons to examine two witnesses. One of the witnesses, Mr. Rakeshkumar Sharma is Chief Public Information Officer (CPIO). It is stated by learned advocate Mr. Pardiwala that witness Mr. Rakeshkumar Sharma is sought to be examined to prove the information given by the witness vide letter CR.RA/630/2007 4/6 JUDGMENT dated 27-8-2007 in the subject of Right to Information Act. It appears that the petitioner sought some information under the provisions of the Right to Information Act from the office of the Commissioner of Customs. In response to the application made by the petitioner, the witness by letter dated 27-8-2007 supplied the information. Copy of letter dated 27-8-2007 is annexed at Annexure-C. 7. Learned advocate Mr. Abichandani for the opponent No. 1 states that in view of written instructions received by him in letter dated 5-3-2008 from Sanjay Gokhle, Intelligence Officer, NCB, Ahmedabad information given by letter F. NO.II/39-51/RTI/2007/875 dated 27- 8-2007 produced in the trial court be exhibited and the contents thereof be read in evidence. In view of this, the information supplied by witness Mr. Rakeshkuamr Sharma by his letter F. No. II/39-51/RTI/2007/875 dated 27-8-2007 produced on the record of the trial court be exhibited and the contents thereof be read in the evidence. Therefore, as said witness Mr. Rakeshkumar Sharma was sought to be examined to prove the document, the witness is not required to be summoned to prove the contents of the said document. Therefore, that part of the order refusing to summon witness Rakeshkumar Sharma (CPIO) does not require any interference. CR.RA/630/2007 5/6 JUDGMENT 8. As far as other witness Mr. Saheb Singh is concerned, it is settled proposition that accused has right to adduce any evidence in support of his defence and the Court is required to issue process for compelling attendance of the witness unless it is found that the application is made for the purpose of vexation or delay or for defeating the ends of justice. The impugned order does not indicate any of these reasons. Therefore, learned trial Judge committed error in passing the impugned order. Therefore, the impugned order has resulted into grave injustice to the petitioner. Therefore, that part of the impugned order is required to be set aside. 9. In the result, this criminal revision application is partly allowed. The order dated 4- 10-2007 passed by learned Special Judge, 2nd Fast Track Court, Valsad below application Exh.267 in NDPS Case No. 1 of 2003 with regard to witness summons to Rakeshkumar Sharma (CPIO) is confirmed with direction to exhibit and admit in evidence letter F.No.II/39-51/RTI/2007/875 dated 27-8-2007 written by Mr. Rakeshkumar Sharma, CPIO to the petitioner with the contents thereof. The order in respect of witness summons to Mr. Saheb Singh is quashed and set aside and the trial court is directed to issue witness summons as prayed for. CR.RA/630/2007 6/6 JUDGMENT Rule is made absolute to the aforesaid extent. Interim relief with regard to stay of further proceedings of NDPS Case No.1 of 2003 pending in the Court of 2nd Fast Track Court Judge, Valsad stands vacated forthwith. (Bankim N. Mehta, J.) /JVSatwara/