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SURYA PARTAP SINGH, J. –

1. By invoking the extra-ordinary jurisdiction vested in this Court by virtue of Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, hereinafter being referred as “BNSS”, the present petition has been filed by the petitioners for quashing of order dated 19.11.2025, passed by learned Special Judge, Fatehabad under NDPS Act.

2. In nut-shell the facts emerging from record are that, that for the commission of offence, punishable under Sections 20/27-A of NDPS Act, the petitioners have been sent to face trial before the above-mentioned Special Court by SHO Police Station Sadar Fatehabad. During the course of above-mentioned trial, the prosecution moved an application under Section 311 Cr.P.C. seeking for permission to examine Criminal Ahlmad/Copiest of the Court of learned ACJM, Fatehabad. The learned Special Judge after giving an opportunity, to the petitioners/accused, hereinafter being referred to as ‘petitioners’, to oppose the above-mentioned application, allowed the same by virtue of order dated 19.11.2025 hereinafter being referred to as ‘impugned order’.

3. The present petition has been moved on the ground that during the course of trial PW, i.e. copiest in the Court of CJM, Fatehabad was given-up by the learned Public Prosecutor, vide his statement dated 18.07.2019, and that the above-mentioned option was exercised by the learned Public Prosecutor without reserving any right or subject to any pre-condition. According to petitioner, once the above-mentioned witness was given-up, at the fag end when the evidence of the prosecution was likely to be closed, the permission to examine the above-mentioned witness cannot be given.

4. Notice of motion.

5. Since advance notice has already been served upon the State, Mr. Parveen Kumar Aggarwal, Addl. A.G, Haryana, accepts notice on behalf of respondent-State, and waives service.

6. Heard.

7. It has been contended on behalf of petitioner that in the present case, the contents of statement of learned Public Prosecutor recorded on 18.07.2019 (Annexure P-3) and the copy of order dated 18.07.2019 passed by the learned trial Court, Annexure P-4, makes it abundantly clear that at the time of giving-up PW, i.e. Copiest in the Court of CJM, any right was not reserved to recall him at a later stage. According to learned counsel for the petitioner once the above-mentioned witness was given up unconditionally, with a purpose to fill up the lacuna he cannot be permitted to be examined, by invoking the provision under Section 311 Cr.P.C. In support of his arguments, learned counsel for the petitioner has referred to the observations made by this Court in the case of Sandeep vs. State of Haryana CRM-M-42544 of 2021 and by Madhya Pradesh High Court in the case of Sunil Jat vs. State of M.P. & Ors M.Cr.C. No.22805 of 2019.

8. The learned State counsel has controverted the above-mentioned submissions. According to learned State counsel with regard to necessity to move application under Section 311 Cr.P.C. for permission to examine copiest, arose in view of the subsequent development, as ASI Surender Singh, who was a witness passed away during the pendency of the trial. According to learned State counsel in order to prove the documents pertaining to investigation of the case, it has become necessary that Criminal Ahlmad should be examined. The learned State counsel has argued that, but for the above-mentioned exigency, the objection of petitioners could have been valid, and that in the given fact situation when there was no course left but to prove the document with the help of copiest, the application under Section 311 Cr.P.C. deserved to be allowed. While defending the impugned order the learned State counsel has requested for dismissal of present petition.

9. The record has been perused carefully.

10. In the present case at the very-outset, it is pertinent to mention here that by virtue of application under Section 311 Cr.P.C. any new witness has not been introduced by the prosecution. Rather a witness, whose name already found mentioned in the list of witnesses, and was given up, has been sought to be examined and this necessity arose due to death of police official ASI Surender Singh.

11. In my opinion in the change circumstances once the above-mentioned necessity arose, any mala fide cannot be attributed to the prosecution. Otherwise also this fact cannot be ignored that purpose of any trial is to do justice, and in the name of technicalities the above-said goal cannot be ignored. Firstly the Ahlmad is not a private witness, who could have been subsequently created, and secondly, he is going to prove some public document only. Thus in my considered opinion a right view has been taken by the learned trial Court, while allowing the application moved by the prosecution under Section 311 Cr.P.C.

12. The factual matrix of the present case being altogether different, it is hereby held that the observations made in the case of Sandeep vs. State of Haryana CRM-M-42544 of 2021 and by Madhya Pradesh High Court in the case of Sunil Jat vs. State of M.P. & Ors M.Cr.C. No.22805 of 2019 are not applicable to the present case.

13. As a sequel to above-mentioned observations, it is hereby held that there is no scope for interference in the findings recorded by the learned trial Court, in the impugned order. Thus, it is hereby held that present petition is devoid of merit and deserves dismissal. The same is hereby dismissed accordingly.

Petition dismissed.

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