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2004 DIGILAW 729 (ALL)

Rizwan Ali Raja v. State of Uttar Pradesh

2004-04-02

R.C.DEEPAK

body2004
R. C. DEEPAK, J. ( 1 ) THIS criminal revision has been filed for the setting aside of the orders dated 4-8-2003, 13-8-2003, 2-9-2003, 19-9-2003, 7-10-2003 and 29-10-2003, for the release of the accused-revisionist on bail and for any such order as may be deemed fit and proper in the interest of justice, mainly on the grounds inter alia that the Sessions Judge/special Judge, Auraiya wrongly, incorrectly, whimsically, illegally and indiscreetly passed the above-mentioned orders in the special case No. 51 of 2003 State v. Rizwan Ali alias Raja under Section 18 and 20 Narcotic Drugs and Psychotropic Substances Act, 1985, arising out of the crime No. 577 of 2003 pertaining to the police station Kotwali Auraiya, District Auraiya. ( 2 ) HEARD Sri D. S. Mishra, learned counsel for the accused revisionist, the learned Additional Government Advocate for the State and perused the record. ( 3 ) SUB Clause (d) of Section 36a of the Narcotic Drugs and Psychotropic Substances Act deals with the taking of the cognizance of the offence. This clause reads as under: (d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a com-plaint made by an officer of the Central Government or a State Government authorised in this behalf take cognizance of that offence without the accused being committed to it for trial. ( 4 ) THE Sessions Judge/special Judge, Auraiya on 4-8-2003 passed the order which is reproduced as under: AADESH PATRA AAJ YEH AAROP PATRA ABHIYUKT RIZ WAN ALl URF RAJA KE VIRUDH DHARA 18/20 NDPS. KE UNTERGAT PRASTUT KIYA GAYA! AAROP PATRA KE SAATH FARD BARAMDGI KE PRATHAM SUCHNA REPORT ROZNAMCHA AAM, NAKSHA NAZRI, MAAL BARAMDGI KA VIDHI VIGYAN PRAYOGSHALA LUCKNOW SE PRAPTI KI CHITHIYA, NATIJA PRAYOGSHALA ABHI PRAPT NAHI HUA HAl, JISKE DUARA PRATHAM DRASHTYA PRAMANIT NAHI HAl KI ABHIYUKT SE KATHIT VASTU KYA THI! CASE DIARY BHI PRASTUS KI GAYI HAIl SABHI ABHILEKHO SE DRASHTIGAT RAKHTE HUE IS PRAKARAN KA SANGYAN ATEDDUARA LIYA JATA HAl! MUKADMA PANJIKRAT HO ! NAKLAIN A VILAMB TAIYAR KARAI JAI I ABHIYUKT JAIL SE DINANK 11-8-2003 KO TALAB HO! CASE DIARY BHI PRASTUS KI GAYI HAIl SABHI ABHILEKHO SE DRASHTIGAT RAKHTE HUE IS PRAKARAN KA SANGYAN ATEDDUARA LIYA JATA HAl! MUKADMA PANJIKRAT HO ! NAKLAIN A VILAMB TAIYAR KARAI JAI I ABHIYUKT JAIL SE DINANK 11-8-2003 KO TALAB HO! HASTAKSHAR/satra NAYAYADHEESH/vishesh NAYAYADHEESH, AURAIYA 4-8-2003 ( 5 ) THE learned counsel for the revisionist has vehemently argued that the learned Special Judge has categorically mentioned in the above order that it is not prima facie certified/established in the absence of the Chemical Exami-ners report as to what matter/substance was found allegedly in possession of the accused-revisionist and yet he took cognizance of the alleged offence without exercising his judicial discretion. This is, according to him, something astoni-shing, startling and surprising and there-fore, the above order dated 4-8-2003 regar-ding taking cognizance of the alleged offence is wholly illegal and injudicious. The learned Additional Government Advocate did not express anything in the course of his arguments, otherwise than this. Therefore, it may be mentioned without ventilating anything on the merits of the arguments of the learned counsel for the revisionist that his above contention goes uncontradicted. Sub-section 2 of Section 309 Cr. P. C. reads as under: (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. ( 6 ) THE learned counsel for the revisionist has, on the basis of the above sub-section, argued that the learned Special Judge should, by a warrant, have remanded the accused revisionist after allegedly taking cognizance of the alleged offence because the accused-revisionist was allegedly in custody and that what he Special Judge appears (sick matter) Annexure 4 at pages 22, 23 respectively on the record: ABHIRAKSHA MAIN RAKHNE KA WARRANT :- DHARA 309 DPS. NAYAYALAYA JANPAD-AURAIYA ADHIKSHAK JILA KARAGAR, ITA VA CHUNKI RIZ WAN ALl URF RAJA, UMRA KARIB 32 VARSH, PUTRA MUSA-RRAT ALl, NIVASI SUJANPUR, THANA SULTANPUR, JILA SAJAPUR, (MP), MA. S. 577/03 DHARA 18-20 NDPS. NAYAYALAYA JANPAD-AURAIYA ADHIKSHAK JILA KARAGAR, ITA VA CHUNKI RIZ WAN ALl URF RAJA, UMRA KARIB 32 VARSH, PUTRA MUSA-RRAT ALl, NIVASI SUJANPUR, THANA SULTANPUR, JILA SAJAPUR, (MP), MA. S. 577/03 DHARA 18-20 NDPS. ACT, THANA KOTWALI, AURAIYA, JILA AURAIYA KO MERE SAMNE UPASTHIT KIYA GAYA SAMBANDHIT AAROP KE AVLOKAN TATHA TATHYON PER SAMYAK VICHAR KARNE PER UPROKT ABHIYUKT PARIKSHAN AVADHI TAK POLICE ABHIRAKSHA/karagar ABHI-RAKSHA MAIN NIRUDH KARNA MAIN AVASHYAK SAMAJHTA HOON! ATH: AAPKO IS LEKH DUARA ADESH KIYA JATA HAl KI AAP UPROKT ABHIYUKT KO APNI ABHIRAKSHA MAIN RAKHE TATHA PUSHT PER NIYAT TITHI NAYA-YALAYA RAVANA KAREIN! DINANK 13-8-2003 HASTAKSHAR. ( 7 ) THE learned counsel for the revisionist has, on the basis of the order passed on the order- sheet of the case and on the basis of the above alleged warrant of remand, laid much emphasis in the course of his arguments that the learned Special Judge has not passed any order of remand after taking cognizance of the alleged offence and that the documents at pages 22-23 do not and cannot consti-tute in any manner whatsoever the order of remand and therefore, the detention of the revisionist in the jail is wholly illegal. ( 8 ) SECTION 439 Cr. P. C. reads as under: 439. Special Powers of High Court or Court of Sessions regarding bail. (1) A High Court or Court of Sessions may direct (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modify. Provided that the High court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Sub-Section 3 of Section 36a of the Narcotic Drugs and Psychotropic Substances Act reads as under: (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section included also a reference to a Special Court constituted under section 36. ( 9 ) ORDERS dated 13-8-2003, 2-9-2003, 19-9-2003, 7-10-2003, 24-10-2003, 27-10-2003 and 29-10-2003 are respecti-vely reproduced as under: 13-8-2003 DINANK 11 V 12-9-2003 KA AVKASH GHOSHIT! ABHI-YUKT POLICE ABHIRAKSHA MAIN JAIL SE UPASTHIT AAYA! VISHESH VAAD VASTE HA. DINANK 02-9-2003 KO PESH HO! HASTAKSHAR. /special JUDGE/j. M. 2-9-2003 PUKARA GAYA! ABHIYUKT POLICE ABHIRAKSHA MAIN JAIL SE UPASTHIT AAYA! ABHMJK KO CASE DIARY KI NAKPL PPAD. N KI GP! VISHESH VAAD VASTE HA. DINANK 19-9-2003 KO PESH HO! HASTAKSHAR/special JUDGE/j. M. 19-9-2003 PUKARA GAYA! ABHIYUKT POLICE ABHIRAKSHA MAIN JAIL SE UPASTHIT AAYA! NAYAYIK KARYA SE VIRAT RAHNE KE KARAN PRATIK-SHA KE BAAD BHI ADHIVAKTAGAN NAYAYALAYA UPASTHIT NAHI AAYE! VISHESH VAAD VASTE HA. DINANK 7-10-2003 KO PESH HO! HASTAKSHAR/special JUDGE/j. M. 7-10-2003 PUKARA GAYA! ABHIYUKT POLICE ABHIRAKSHA MAIN JAIL SE UPASTHIT AAYA! UBHAY PAKSH KE ADHIVAK-TAGAN KO SUNA GAYA! ABHIYUKT KE VIRUDH AAROP VIRCHIT KIYA GAYA! ABHI-YUKT NE AAROP SE INKAR KIYA EVAM PARIKSHAN KI MMNG KI! VISHESH VAAD VASTE SAKSHY DINANK 24-10-2003 KO PESH HO! GAVAHAN TALAB HON! HASTAKSHAR/special JUDGE/j. M. 24 TO 27-10-2003 DEEWALI AVKASH 29-10-2003 PUKARA GAYA! ABHIYUKT POLICE ABHIRAKSHA MAIN JAIL SE UPASTHIT AAYA! P. O. MAHODAYA AVKASH PAR HAT! VISHESH VAAD VASTE SAKSHY DINANK. 29-11- 2003 KO PESH HO! GAVAHAN TALAB HO! HASTAKSHAR/special JUDGE/j. M. ( 10 ) IT is on the basis of the above orders passed by the learned Special Judge on the order- sheet that the learned counsel for the revisionist has argued that all these orders are stereo-typed and that the Special Judge has passed them whimsically, illegally and indiscreetly. ( 11 ) SECTION 211 Cr. P. C. indicates the contents of charge and reads as under: 211. ( 11 ) SECTION 211 Cr. P. C. indicates the contents of charge and reads as under: 211. Contents of Charge (1) Every charge under (2) If the law (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall (7) If the accused, having ( 12 ) THE learned counsel for the accused-revisionist has, while referring to the above order dated 7-10-2003 and sub-sections 3 and 5 of Section 211 Cr. P. C. , argued that the Special Judge has, framed the charge even in the absence of the report of the chemical examiner regarding the Charas alleged to have been recovered from the accused-revisionist, without going through the record and without exercising his judicial discretion in any manner whatsoever and therefore, the order dated 7-10-2003 is illegal and the charge framed against the accused-revisionist is groundless. ( 13 ) IT may be mentioned in this very connection without hitch or hesi-tation that benevolence is ones duty. Whereas malevolence is ones crime. One who is a protector is not expected to become a perpetrator. The higher is the position, the greater is the responsibility. A man is known by the company he keeps and a Nation is known by the judiciary it has. The judiciary is a vast ocean of learning. The deeper one dives, the more pearls one finds. The more one reads, the less one feels satisfied. The more one acquires knowledge, the more one remains hallow and humble. Moderation in temper is a great virtue whereas moderation in principle is a great vice. Perception from the core of heart strengthens practicable aspect. One is expected to be apparently and transparently conscious and conscientious in the performance of ones duty. Desires cause fear, arrogance is the cause of ignorance. ( 14 ) IN view of what has been observed hither to above I arrive at the conclusion that this revision be allowed. Consequently, the revision is allowed. One is expected to be apparently and transparently conscious and conscientious in the performance of ones duty. Desires cause fear, arrogance is the cause of ignorance. ( 14 ) IN view of what has been observed hither to above I arrive at the conclusion that this revision be allowed. Consequently, the revision is allowed. The impugned orders dated 4/8/2003, 13/8/2003, 2/9/2003, 19/9/2003, 7/10/2003 and 29/10/2003 are set aside. ( 15 ) THE revisionist Rizwan Ali alias Raja involved in case crime No. 577 of 2003 under Section 18/20 N. D. P. S. Act, P. S. Kotwali Auraiya, District Auraiya is released on bail subject to his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Revision allowed. . .