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2002 DIGILAW 475 (RAJ)

Raj Kumar S/o Punjab Ram v. The Union of India

2002-02-22

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This revision petition has been field by the petitioner - Rajkumar (hereinafter referred to as the added `accused-petitioner') against the order dated 20.12.2001 passed by the learned Special Judge, NDPS Cases Sri Ganganagar by which the learned Special Judge suo moto exercising the power under section. 319 Criminal Penal Code took cognizance against the petitioner for offence under sections. 8/15 & 25 of the NDPS Act, 1985. 2. The facts giving rise to this revision petition are as follows : (i) On 17.5.2002 at about 3 O'clock, one jeep came from 365 RD to 350 RD. In that jeep, two persons were sitting. When the custom range Officers stopped the jeep, one person ran away and another person Rajendra Kumar was caught hold and he said that the person who ran away was Raj Kumar. Then a search was taken of the jeep and 36 kg. of poppy husk was recovered and statement of Rajendra Kumar was also recorded. In that statement the fact that the owner of the jeep was added accused-petitioner has also come in picture. After usual investigation, the Custom Department submitted a challan for offence under section. 8/15 of the NDPS Act only against accused-Rajendra Kumar and not against present accused-petitioner. 3. After the challan was filed and before the charges were framed, the learned Special Judge took cognizance against the present accused-petitioner on 2.11.2000, but that order was set aside in criminal revision No. 656/2000 by this Court vide judgment dated 13.7.2001 and it was observed by this Court that it would be left open to the learned trial Court to proceed against any person other than accused persons facing trial under section. 319 Criminal Penal Code as and when if any occasion arises. 4. That thereafter five witnesses were produced by the prosecution and last witness PW-5 was produced on 5.12.2001 and the case was fixed for recording the statement of accused-Rajendra Singh under section. 313 Criminal Penal Code on 20.12.2001. 5. On 20.12.2001, the learned trial Judge suo moto took cognizance against the present accused-petitioner for offence under section. 8/15 & 25 of the NDPS Act. 6. Aggrieved from that order dated 20.12.2001, this revision petition has been filed. 7. 313 Criminal Penal Code on 20.12.2001. 5. On 20.12.2001, the learned trial Judge suo moto took cognizance against the present accused-petitioner for offence under section. 8/15 & 25 of the NDPS Act. 6. Aggrieved from that order dated 20.12.2001, this revision petition has been filed. 7. In this revision petition, the main contention of the learned counsel for the petitioner is that the cognizance has been taken at the fag end of the trial and further more when the Custom Department did not file any challan against the present accused- petitioner, in these circumstances, taking of cognizance suo moto by the learned trial Judge under section. 319 Cr.P.C. is per se illegal and without jurisdiction and should be set aside. 8. Heard. 9. Taking into consideration the fact that the Custom Department did not file any challan nor they moved any application for summoning the present accused-petitioner as additional accused and looking to the fact that the power under section. 319 was exercised by the learned Special Judge at the fag end of the trial and the case was fixed for recording the statement of accused under section. 313 Criminal Penal Code and looking to the position of law that the power under section. 319 Cr.P.C. should be used very sparingly and only when compelling reasons exists, the impugned order dated 20.12.2001 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar by which the learned Special Judge suo moto exercised the power under section. 319 Criminal Penal Code and the present accused-petitioner was further added as additional accused, cannot be justified. 10. For the reasons mentioned above, the impugned order dated 20.12.2001 cannot be sustained and the same is liable to be set aside and the revision petition filed by the petitioner is liable to be allowed.For the reasons mentioned above, this revision petition is allowed and the order dated 20.12.2001 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar is set aside.Revision petition allowed *******