Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1087 (MP)

Ashish Tiwari v. State of M. P.

2011-09-15

U.C.MAHESHWARI

body2011
ORDER 1. This revision is directed on behalf of the applicant/accused under section 397/401 of the CrPC, being aggrieved by the order dated 11.9.2007 passed by the Special Judge, constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act (in short the Act) in Special Case No. 2/07 framing the charges against rum for the offence of section 20 (b) (ii) (b) read with section 29 of the Act. 2. As per case of the prosecution the co-accused Arvind Awasthy was anticipated and from his possession 1.200 kg of contraband substance, the Ganja, was recovered for which, in accordance with the prescribed procedure the investigation was carried out. In the course of such investigation, on recording memorandum of such accused under section 27 of the Evidence Act, he disclosed that the Ganja recovered from his possession was purchased by him in consideration, from the present applicant. Pursuant to such memorandum at the instance of said co-accused Arvind Awasthy, in presence of witnesses, on making interrogation from the present applicant, then Rs. 1200/- obtained by him from co-accused Arvind Awasthay, was recovered from his possession. In accordance with the prescribed procedure. in presence of the Panch witnesses, seizure memo of such sum was prepared. In such premises, the applicant was found to be involved in selling contraband substance, the Ganja, to the co-accused. In such factual matrix, the applicant was implicated as accused for in the case and on completion of the investigation along with the said co-accused, he is also charge sheeted for the offence under section 20 (b) (ii) (b) read with section 29 of the Act. On framing the charge of such offence, he abjured the guilt and came to this Court with this revision to set aside the order impugned. 3. After taking me through the papers of the charge-sheet placed on the record along with the impugned order and the framed charges, applicant's counsel has argued that mere on the memorandum of the co-accused recorded under section 27 of the Evidence Act which is not the admissible document, the applicant has been implicated in the matter under the wrong premises. He further argued that as per aforesaid memorandum, the applicant sold the alleged Ganja to the co-accused in consideration of Rs. 1000/- while according to the seizure memo Rs. 1200/- of such consideration was seized from his possession. He further argued that as per aforesaid memorandum, the applicant sold the alleged Ganja to the co-accused in consideration of Rs. 1000/- while according to the seizure memo Rs. 1200/- of such consideration was seized from his possession. In view of such material inconsistency also the alleged memorandum and seizure memo were not sufficient to frame the alleged charge against him. According to him except the aforesaid circumstances there is no any other evidence or the papers showing the involvement of the applicant with alleged offence in any manner and by placing his reliance on a decision of this Court in the matter of Balkrishna Narendar Kumar Naikv. State of M.P. 2001 (1) JLJ 90 = 2001 (1) MPLJ 295 prayed to set aside the framed charges by admitting and allowing this revision. 4. On the other hand, responding the aforesaid argument Smt. Nirmala Nayak, GA by justifying the charges framed by the trial Court said the' same is in consonance with the papers of the charge sheet and are also in accordance with the provisions of section 20 (b) (ii) (B) read with section 29 of the Act. In continuation she said that according to section 29 of the Act, the person who abets the offence punishable under the Act as well as who involve him self in any criminal conspiracy, pursuant to that any offence punishable under the Act is committed by any person then such person like applicant is also liable for prosecution under the above mentioned sections. In such premises, the trial Court has not committed any error in framing the impugned charge and prayed for dismissal of this revision. 5. Having heard the counsel, keeping in view their arguments, I have carefully gone through the papers of the charge sheet placed on the record and also the impugned order along with the charges framed. According to the charge sheet initially the co-accused Arvind Awasthy was found in possession of the alleged contraband substance, the Ganja. On recording his memorandum under section 27 of the Evidence Act, he disclosed the name of the applicant from whom he purchased the same in consideration. Pursuant to that, at his instance, on making the interrogation of the present applicant, he produced the alleged consideration of Rs. 1200/- before the investigation officer, the same was seized by preparing the requisite panchnama in presence of the witnesses. 6. Pursuant to that, at his instance, on making the interrogation of the present applicant, he produced the alleged consideration of Rs. 1200/- before the investigation officer, the same was seized by preparing the requisite panchnama in presence of the witnesses. 6. True it is, no contraband substance was recovered from the actual possession of the applicant and he has been implicated in the matter only on the ground of selling such contraband in consideration to co-accused which has been prima facie revealed in investigation on recording the aforesaid memorandum of the co-accused and pursuant to which at his instance such currency of consideration Rs. 1200/- was recovered from the applicant. In view of the provision of section 29 of the Act, I am of the considered view that in the above mentioned circumstances available in the charge sheet, at this stage, it could not be deemed that the applicant was not involved in such criminal conspiracy with the co-accused Arvind Awasthy from whose possession the substance was recovered. In other words, as alleged by selling the contraband substance to the co-accused, the applicant by involving himself, has abetted such co-accused to commit the aforesaid offence made punishable under the Act. As ready reference, I would like to reproduce section 29 of the Act. The same reads as under:- 29. Punishment for abetment and criminal conspiracy. (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning for this section, who, in india, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which - . (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, If committed within India. 7. 7. In view of the aforesaid provision and discussion it is held that the impugned I charge has been rightly framed by the trial Court. 8. At the stage of framing the charge the Court has not to consider the merits or demerits of the case or think whether on holding the trial the case shall be culminated in conviction or not but on establishing the prima facie ingredients of the alleged offence against the accused like applicant from the charge sheet then there is no option with the Court except to frame the charge of such offence. Whatsoever issues raised by the applicant's counsel in his argument, the same any be good defence for the applicant at trial but at the stage of the charge, the same could not be considered to discharge the appellant. 9. So far the case law cited on behalf of the applicant in the matter of Balkrisbna Narendra Kumar Naik (supra) is concerned, such case was decided after recording the evidence and on appreciation of the same and not at the stage of framing the charge. So, the same being distinguishable on facts and the stage of the trial, is not helping to the applicant although this Court does not have any dispute regarding the principle laid down in the cited case. 10. In view of the aforesaid discussion, I have not found any perversity, illegality, infirmity or any thing against the propriety of the law in the order impugned requiring any interference at this stage under the revisional jurisdiction of this Court. Consequently, this revision being devoid of any merit, is hereby dismissed at the stage of motion hearing. Pursuant to it, the interim order passed earlier staying the further proceedings of the trial Court has also come to an end. the trial Court be intimated in this regard. 11. The Revision is dismissed as indicated above.