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2009 DIGILAW 897 (RAJ)

Manoj Kumar @ Manish v. State of Rajasthan

2009-03-30

MAHESH CHANDRA SHARMA

body2009
JUDGMENT 1. - This revision petition has been filed against the order dated 22nd June, 2004 passed by the Special Judge, NDPS Cases, Jaipur, in Sessions Case No. 23/2002, by which he has framed the charge under Section 8/15 of the Narcotic Drugs and Psychotropic Substance Act (for short 'NDPS Act') against the accused petitioner. 2. Brief facts of the case are that as per Rojnamcha dated 28.06.2Q02 of Police Station, Bagru, District Jaipur, an information was received on 26.06.2002 at 2.30 A.M. in respect of contraband (Doda Chura) which was kept in Godown situated at 0-52, New RIICO Area, Bagru. On this information, a raid was conducted and it was alleged that from the Godown of the aforesaid closed factory, 108 bags of Doda Chura were recovered and the same were seized. Thereafter on 28.06.2002, an FIR was lodged by the Station House Officer, Bagru in respect of the aforesaid recovery under Section 8/15 of the NDPS Act. After investigation, the police filed challan before the learned court below for the offence, as indicated above. The learned Special Judge framed the charge against the accused petitioner for the offence, as indicated above. Aggrieved from the said order dated 22.06.2004 passed by the Special Judge, NDPS Cases, Jaipur in Sessions Case No. 23/2002, the present revision petition has been filed. 3. Heard learned counsel for the parties. 4. The learned counsel Mr. Shantanu Kumar appearing on behalf of Mr. Anil Upman has contended that the court below has failed to appreciate the settled principle of law because under Section 41,42 arid 53 of the NDPS Act any recovery of illicit material or collection of material including the evidence by the unauthorized person is illegal and criminal proceedings cannot be initiated on the basis of such evidence or material which has been collected by the unauthorized person and in this case it is admitted fact that recovery was affected from the Godown of closed factory and at the time of recovery, the petitioner was not present at the spot and that the entire investigation of this case has been done by the Sub Inspector Bharat Singh, who was not authorised to investigate the matter under NDPS Act. He has also drawn the attention of this Court towards the Notification dated 16.10.1986 and submits that the petitioner was not involved in this matter. The petitioner is also not owner of this factory. He has also drawn the attention of this Court towards the Notification dated 16.10.1986 and submits that the petitioner was not involved in this matter. The petitioner is also not owner of this factory. 5. On the other hand, the learned Public Prosecutor has opposed the argument advanced by Mr. Shantanu, the learned counsel appearing on behalf of the petitioner and drew the attention of this Court towards the decision in the case of Om Prakash & Anr. v. State of Rajasthan-S.B. Criminal Revision Petition No. 1282 of 2003, decided on January 22,2009 , wherein this Court laid down the following principles in regard to framing of charge by the courts below: (i) No reasons are required to be recorded when the charges are framed against the accused persons. (ii) In cases instituted otherwise than on a police report, the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. (iii) Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. (iv) The High Courts to be loath in interfering at the stage of framing the charges against the accused. (v) At the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. (vi) It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. (vii) At the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. (vii) At the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. (viii) If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. (ix) The Supreme Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons. (x) Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law. 6. The Apex Court in Om Wati v. State, AIR 2001 SC 1507 held as under: "...It would not be safe at this stage to deprive the prosecution in proving its case on the basis of direct evidence, the statement of the deceased claimed to be admissible under Section 32 of the Evidence Act and the other documents including the inquest report allegedly disclosing the infliction of injuries on the person of the deceased which resulted in his death. The acceptance of the opinion of the doctors, as incorporated in the post mortem report for the cause of death of deceased being hepatic failure following viral hepatitis' cannot be accepted on its face value at this stage. Therefore, the order of the High Court would be illegal and liable to be set-aside. The Supreme Court reminded the High Courts of their statutory obligation not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law. 7. 7. For these reasons, I do not find any illegality or infirmity in the order dated, 22nd June, 2004 passed by the Special Judge, NDPS Cases, Jaipur. Consequently, the revision petition is dismissed. The trial court is directed to expedite the trial. 8. Since the main revision petition has been dismissed, the stay application, filed therewith, does not survive and the same also stands disposed of.Revision Dismissed. *******