Fair opportunity to cross-examine witnesses was denied when the appellate authority ignored a summons application and relied on untested statements.

Failure to consider an application to summon witnesses for cross-examination and remand was treated as a material procedural error. The record showed that such a request had in fact been made, so the appellate authority's finding that no request existed was contrary to the record. Because the witnesses' statements had been relied upon against the appellant, ignoring the request deprived the appellant of a fair opportunity to test that evidence. The resulting order was held unsustainable as it caused miscarriage of justice.

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Issues: Whether the appellate order was vitiated because the application to summon witnesses for cross-examination was not considered, and whether the resulting finding that no such request had been made could stand.

Analysis: The record showed that an application had been made seeking summoning of the relevant witnesses for cross-examination and also for remand, but that application was not dealt with by the appellate authority. The impugned finding that no request had been made was therefore contrary to the record. Since the statements of those witnesses were relied upon against the appellant, failure to consider the request deprived the appellant of a fair opportunity to test that evidence.

Conclusion: The failure to consider the application amounted to a material error and miscarriage of justice, and the appellate order could not be sustained.

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