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2000 DIGILAW 1277 (MP)

Kanhaiyalal @ Kana v. Central Narcotics Bureau

2000-12-01

N.K.JAIN

body2000
Short Note 1. Applicant Kanhaiyalal s/o Shambhoolal is aggrieved by the Order dated 12.9.1999, passed by Special Court, Ratlam, framing charge u/s 8/29 of Narcotics Drugs and Psychotropic Substances Act, against the applicant. Three other co-accused, namely, Chandra Shekhar, Smt. Shirin Bohra and Kanhaiyalal S/o Devilal, are also being prosecuted together with the applicant on the basis of a complaint made u/s 8/21 and 8/29 of NDPS Act by respondent-The Inspector, Central Narcotics Bureau, Ratlam. 2. From the complaint and the papers filed therewith, it appears that on 31.7.1998, co-accused Chandra Shekhar and Smt. Shirin, travelling in an Ambassador Car, were intercepted by the respondent -- Inspector in between Ratlam and Indore and 4.00 Kgs. of Heroin was recovered from inside the Diesel tank of the car. Statement of co-accused Chandra Shekhar was recorded u/s 67 of the Act which revealed that the seized contraband was supplied to him by co-accused Kanhaiyalal s/o Devilal. He further informed that accused-applicant Kanhaiyalal s/o Shambhoolal had also in the past about 4 months prior to the alleged seizure, supplied him similar contraband for being carried to Indore. On the basis of this information, accused-applicant and his two sons were also noticed by the respondent - Inspector and their statements were recorded u/s 67. While the two sons of the applicant categorically denied their involvement in the crime in question, accused applicant is said to have confessed his guilt stating that he has been supplying Heroin to the said co-accused Chandra Shekhar for being taken to and sold at Indore. Said co-accused Kanhaiyalal s/o Devilal is still absconding. The Court below has proceeded against the remaining 3 accused, the applicant herein, Chandra Shekhar and Smt. Shirin. Applicant has been charged u/s 8/29 while the other two accused have been charged u/s 8/21 of the Act. 3. The contention of the learned counsel for the applicant is that as per prosecution's own showing, the applicant was not at all concerned with the contraband seized from the other two co-accused on 31.7.1998. The charge framed u/s 8/29 of the Act against the applicant is, therefore, wholly groundless, submitted the counsel. 4. As against it, Shri G. Desai, learned counsel for respondent-Department, defended the impugned order and contended that the complicity of the accused applicant in the crime is established prima facie and no interference is, therefore, called for by this Court in revision. 4. As against it, Shri G. Desai, learned counsel for respondent-Department, defended the impugned order and contended that the complicity of the accused applicant in the crime is established prima facie and no interference is, therefore, called for by this Court in revision. It is further pointed out that part of the evidence has already been recorded and the applicant would be, therefore, better advised to ventilate his grievance at the trial itself and secure acquittal. 5. Statements recorded u/s 67 of the Act are admissible in evidence. It is a different matter that what importance is to be attached to those retracted statements. I need not at this stage, express any opinion on the merits or demerits of those statements, lest it may prejudice one party or the other at the trial. Suffice to say that the charge against the applicant cannot be termed as groundless. 6. It is true that no statement is made by co-accused Chandra Shekhar against the applicant-accused in respect of the said 4.00 Kgs of Heroin seized from the former on 31.7.1998. However, the offence in question seems to have been committed in the course of series of transactions and as per statement of Chandra Shekhar, the accused-applicant was actively involved in those transactions. Ss.219 to 223 of the Code of Criminal Procedure provide for joinder of the charges as also accused persons in respect of similar offences committed during period of one year or the offences committed in one series of the same transaction. In the instant case, the view taken by the trial Court that the accused applicant can also be tried jointly with other co-accused persons for the alleged supply of contraband by him to co-accused Chandra Shekhar, cannot be termed as wholly unreasonable. If there is any ambiguity in the charge, the same can be corrected by the trial Court by taking recourse to section 216 of the Code. No interference is, however, called for by this Court in revision at this stage of the trial. The applicant would be rather better advised to ventilate his grievance at the trial itself and secure acquittal. 7. The revision thus fails and is dismissed.