Cr.MMO No. 143 of 2010 28.07.2010 Present: Mr. Satyen Vaidya, Advocate, for the petitioner. Ms. Ruma Kaushik, Addl. Advocate General for the respondent. Cr.MMO 143 of 2010 Heard learned counsel appearing for the petitioner and the learned Additional Advocate General. The petitioner herein is aggrieved by the order passed by the learned Sessions Judge, Shimla declining the application under Section 311 of the Code of Criminal Procedure seeking permission to cross examine two witnesses namely PW2 Tilak Raj and PW3 Devender Singh. This application was opposed by the prosecution. One of the important grounds urged for recalling these witnesses for cross examination is that the accused who is in custody facing trial for offences under the Narcotic Drugs and Psychotropic Substances Act, instructed his counsel to cross examine these witnesses on some facts in a particular manner, but this was not done. Learned counsel was changed and when the case was subsequently conducted by the defence, the counsel found that material questions going to the root of the case as to the seizure of narcotic substance, had not been put to these witnesses. It is also the case of the petitioner that presence of a very particular person is doubted for which purpose, this fact is to be supported by some documents obtained by the petitioner under the Right to Information Act. 2. Learned Sessions Judge concludes on the pleadings of parties before it that negligence of the counsel has not been established on record of the case and therefore recalling the witnesses under Section 311 of the Code of Criminal Procedure would be an exercise in futility. 3. The first important aspect in this case is that petitioner is in custody and due to this reason he is handicapped in instructing his counsel. It is undisputed that it is a constitutional right of the petitioner to be defended by a counsel of his choice. Later on he was advised that a particular line of cross examination had not been adopted and that the answers to be elicited in this line of questioning would be favourable to his defence, meaning thereby that if these questions are left out and the petitioner is likely to suffer conviction in all probability. The learned Sessions Judge should have exercised discretion in favour of the petitioner. This is not a case of filling up lacuna in case an adequate opportunity was given to the petitioner to prove his case. In Mohan Lal Shamji Soni vs. Union of India, 1991 Supp (1) SCC 271, on the ambit of Section 311, the Supreme Court holds that it is the cardinal rule in the law of evidence that the best available evidence should be brought before the Court and proved in accordance with law. After considering the law in detail, the Court commended a liberal approach on application under Section 311 of the Code of Criminal Procedure holding that it is the truth which is the primary object to be achieved first and other consideration case to be kept in the background. This principle of law was reiterated in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat & others, (2006) 3 SCC 374. These principles have been followed by this Court in Narcotic Control Bureau vs. Yuvraj Gurang and another, 2006 Cri. L.J. 2862, holding that the concept of filling up lacuna in evidence cannot be used in the old conventional sense of the term. All that need be said is that in Mukunda Dev Baral vs. Sanjib Baral and others, 1992 Cri. L. J. 3048, the High Court of Orissa holds that discretion for grant of an opportunity to lead evidence is available to the prosecution as also the defence. Taking into consideration the facts and circumstances of this case, this petition is allowed. The order of learned Sessions Judge refusing permission for recalling the witnesses is quashed and set aside. July 28, 2010 (Dev Darshan Sud), ms Judge