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2014 DIGILAW 476 (JK)

Manzoor Ahmad Malik v. State

2014-11-28

TASHI RABSTAN

body2014
JUDGMENT : Tashi Rabstan, J.:- (A) 561-A No. 277/2014 1. Petitioner-accused has invoked the jurisdiction of this Court under Section 561-A of Code of Criminal Procedure (hereinafter, for short CrPC) for quashing the charges framed against him by the learned Principal Sessions Judge, Ramban vide order dated 25.02.2014 in FIR No. 02/2014 registered at Police Station Banihal under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, N.D.P.S. Act), and the proceedings drawn in the said case. This petition has been filed by the petitioner-accused through his father, namely, Ghulam Mohammad Malik on the ground that he is judicial lock-up for the last more than six months and has authorized his father to file the instant petition. The facts as gathered from the petition are that on 1.01.2014 the petitioner-accused was travelling in Mahindra vehicle bearing registration No. 4959-JK22 which was heading towards Srinagar from Jammu. During traffic checking, it was alleged that 180 bottles of Lupi-cough and 690 bottles of Sposmo Proxyvon were recovered from the bag of petitioner-accused. FIR No. 02/2014 came to be registered at Police Station Banihal against the petitioner-accused under Section 8/21 N.D.P.S. Act After completing the investigation, Challan was presented before the learned Principal Sessions Judge, Ramban. It is contended that the Challan does not disclose the commission of offence under N.D.P.S. Act. Further, not even a single prosecution witness has been examined for the last more than six months. It is also contended that the investigating authorities have referred the seized contraband for chemical analysis and expert's opinion. Further stand of the petitioner is that even as per the communication of expert the seized contraband does not fall under N.D.P.S. Act and the same can be sold on license by anyone. Thus, the contention of petitioner is that the trial Court was not justified in framing the charges against the petitioner under the provisions of N.D.P.S. Act. Further, the charges have been framed by the trial Court without complying with the mandatory provisions of law as laid down in Chapter XXIII of the Code of Criminal Procedure, as the very existence of Narcotic Drugs is lacking. 2. State was put on notice in this petition, but despite several opportunities the respondents have failed to file objections. However, Mr. Chopra, learned Government Advocate stated at the Bar that he adopts the objections filed in 561-A No. 239/2014. 2. State was put on notice in this petition, but despite several opportunities the respondents have failed to file objections. However, Mr. Chopra, learned Government Advocate stated at the Bar that he adopts the objections filed in 561-A No. 239/2014. His statement is taken on record. 3. I have heard learned counsel appearing for the parties, considered the rival contentions meticulously and perused the record of trial Court. 4. The precise ground taken by the petitioner is that the Challan presented before the learned trial Court does not disclose the commission of offence under the N.D.P.S. Act nor the alleged seized contraband falls under the said Act. Further stand of the petitioner is that the learned trial Court while framing the charges has failed to comply with the provisions of Chapter XXIII and Section 268 of Cr.P.C. The main thrust of the arguments of learned counsel for petitioner is communication dated 04.02.2014 addressed to Sub Divisional Police Officer, Banihal by Assistant Controller Drug, Udhampur (Annexure 'C to the petition). It has also been mentioned therein that the seized contraband does not come under Narcotic and can be sold by licensed Drug Dealer under the supervision of qualified person on prescription of registered Medical Practitioner/Doctor. 5. On the contrary Mr. Chopra, learned Government Advocate submitted that the present case is not maintainable as the same has been filed by the petitioner-accused through his father. He stated that during police checking of vehicles near Jawahar Tunnel, Banihal, 185 bottles of 100 ml each of Lupic of and 40 strips of Spasmo Proxyvon Capsules were recovered from the possession of petitioner-accused. He thus stated that as the petitioner-accused was involved in a heinous offence of illegal trade of Narcotic Drugs, therefore, the present case is attracted under Section 8 of N.D.P.S. Act, 1985 read with Sr. No. 28 of the Notification specifying small quantity and commercial quantity. He argued that as the seized contraband was of commercial quantity and one of the contrabands contained Codeine Phosphorus Narcotic Drug and Psychotropic Substance as mentioned in the Notification specifying small quantity and commercial quantity (sub-clause vii(a) and xxiii(a) of Section 2 of the Act); therefore, rigors of Section 37 of the N.D.P.S. Act are attracted. 6. Learned Government Advocate stated at the Bar that the sample of seized contraband has been sent for chemical analysis and the report has yet not been received. 6. Learned Government Advocate stated at the Bar that the sample of seized contraband has been sent for chemical analysis and the report has yet not been received. He, however, argued that as the seized contraband was of commercial quantity, therefore, the offence is cognizable one as per the provisions of Section 37 of N.D.P.S. Act. 7. The N.D.P.S. Act is a special Act dealing with special class of crimes which is an international menace. Since chemical analysis report of seized contraband is still awaited, it would be premature to conclude either way. Therefore, in absence of the opinion of Forensic Laboratory, communication of Assistant Controller Drug dated 04.02.2014 has no significance. Moreover, it has also to be established by the petitioner-accused whether he was having any valid license to carry the seized contraband or not. 8. Further, the petitioner-accused is basing his claim on the statement of only one prosecution witness, namely, Head Constable Abdul Rashid on the ground that he has not deposed anything against him, whereas, the fact of the matter is that, as per the record of trial Court, there are 14 prosecution witnesses mentioned in the Charge Sheet and rest of the prosecution witnesses are yet to be examined; meaning thereby important and material witnesses are still to be examined. In the given circumstances, the argument of learned counsel for petitioner that the only witness examined so far has not supported the prosecution case need not to be gone into at this stage. Therefore, taking into consideration the ground realities, it would be premature for this Court to form any opinion whether the petitioner is guilty of the offence or not. This Court cannot take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether the charges have been rightly framed against the petitioner-accused or not, The case before the trial Court is at its infancy and this Court cannot go into the truthfulness or otherwise of the charges at this stage. As the trial Court is already seized of the matter, therefore, it is for the trial Court to see whether the charges have been rightly framed against the petitioner-accused or not after the chemical analysis report is received by it and the material evidence are led by the parties. 9. As the trial Court is already seized of the matter, therefore, it is for the trial Court to see whether the charges have been rightly framed against the petitioner-accused or not after the chemical analysis report is received by it and the material evidence are led by the parties. 9. Further, it is no more res-integra that the power under Section 561-A Cr.P.C. is permissible rarely in exceptional circumstances, i.e., when there is a chance of abuse of the process of the Court or there is a chance of failure of justice. No such exceptional case has been made out in the present case which would warrant quashing of the charges framed against the petitioner by the trial Court. 10. It is a well settled law that the defences whatsoever of the accused are a matter of trial and cannot be looked into in a petition for quashing the proceedings under Section 561-A Cr.P.C. The petitioner herein can agitate his grievances or put forth his defences before the trial court and the trial court is free to decide the same at appropriate stage. 11. The Apex Court in case State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 , has observed that the powers under Section 561-A Cr.P.C. should be exercised very sparingly and with circumspection and that too in rarest of rare cases. It would be relevant to reproduce paragraph 109 thereof hereunder. "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 12. The Apex Court in its latest judgment in Padal Venkata Rama Reddy v. Kowuri Satyanarayana Reddy, (2011) 12 SCC 437 while relying on the case of Ch. Bhajan Lal (supra) has held as under: "31. ...When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. Bhajan Lal (supra) has held as under: "31. ...When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal (supra). The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution." 13. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, that the High Court can and must exercise its inherent powers under Section 561-A of this Code. This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it. The power under Section 561-A is not intended to scuttle justice at the threshold but to secure justice. 14. At the time of framing of charge, the court has to consider the material, which is collected during investigation or inquiry, in order to satisfy itself as to whether there exists sufficient ground to proceed against the accused. The power under Section 561-A is not intended to scuttle justice at the threshold but to secure justice. 14. At the time of framing of charge, the court has to consider the material, which is collected during investigation or inquiry, in order to satisfy itself as to whether there exists sufficient ground to proceed against the accused. It has been pointed out by the Hon'ble Supreme Court in Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra, (1998) 7 SCC 337 , that at the stage of framing of charge, the court is required to confine its attention to only those materials collected during investigation or enquiry which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. 15. The case set up to invoke inherent powers and seek quashment of criminal proceedings of FIR must not hinge on appreciation of evidence or involve analysis and sifting of the material before the trial Court or available to an investigating officer. Such power rightly belongs to the trial Court or the investigating officer and the High Court in exercise of inherent powers cannot highjack the trial or investigation and step into the shoes of the trial Court or the investigating officer. 16. In Satish Mehra v. State of N.C.T. of Delhi, 2012 AIR SC W 6442 the Apex Court has held as under. ' "15. ...In fact the Power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the material revealed by the investigation carried out usually comes on record and such material can be looked into, not for the purpose of determining the guilt or innocence of the accused, but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused." 17. The Supreme court in its latest judgment in Sheoraj Singh Ahlawat v. State of Uttar Pradesh, (2013) 11 SCC 476 has observed that whether or not the alleged allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. 18. The Supreme court in its latest judgment in Sheoraj Singh Ahlawat v. State of Uttar Pradesh, (2013) 11 SCC 476 has observed that whether or not the alleged allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. 18. The case projected by the present petition to seek quashment of proceedings emanating from the case, FIR No. 02/2014 as is evident from above discussion does not satisfy the requirement of Section 561-A Cr P C the law on the subject and the case law cited hereinabove. So viewed the petition on hand does not call for exercise of inherent powers under Section 561-A Cr.P.C. and the same, is, accordingly, dismissed along with connected Cr.M.A(s). Trial Court shall not be influenced by any of the observations made here in deciding the matter on its own merits. 19. Trial Court is directed to expedite the trial of the petitioner- accused and conclude the same within a period of three months from the date a copy of this order is received by it. (B) B.A. No. 57/2014 20. In view of the detailed discussion made in 661-A Cr.P.C. No. 277/2014,1 do not find any merit in the bail application. Further, no development has taken place in the trial of petitioner-accused after his bail application was rejected by the trial Court nor there is any new ground urged in the present bail application which could persuade the Court to take a view other than the one taken by the trial Court. Since the trial of this case is at its infancy, therefore, it would be improper and premature to admit the petitioner-accused to bail at this stage. Accordingly, the bail application is dismissed. However, the petitioner is at liberty to move fresh application for bail as and when any new ground arises. (C) 561-A No. 239/2014 21. In view of the detailed discussion made hereinabove and in view of dismissal of 561-A No. 277/2014 and B.A. No. 57/2014, the present petition does survive and is, accordingly, dismissed along with connected Cr.M.A(s). Send down the record of trial Court along with a copy of this order forthwith.