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2016 DIGILAW 254 (RAJ)

Hamir Khan v. State of Rajasthan

2016-02-16

SANDEEP MEHTA

body2016
ORDER: As directed earlier, the two Investigating Officers Shri Ashok Aanjana and Shri Virendra Meena are present in Court today. Shri Aanjana states that as per his investigation, the Turbo Vehicle No. RJ 19-1G-9342 had been sold by the present petitioner to the co-accused Moola Ram by an agreement. The agreement was duly verified during investigation. Moola Ram was in control and possession of the vehicle on the date of recovery and that is why, a charge-sheet was filed against him for the offence under Section 8/25 of the N.D.P.S. Act. He further states that during the course of trial Moola Ram has procured the interim custody of the vehicle by filing an application under Section 457 Cr.P.C. By way of the instant revision petition, the petitioner Hamir Khan has approached this Court being aggrieved of the order dated 15.12.2015 passed by learned Special Judge, N.D.P.S. Act Cases, Jodhpur in Sessions Case No.58/2012 whereby, the learned trial Court rejected the application for discharge filed on behalf of the accused petitioner and directed framing of charges against him for the offence under Section 8/25 of the N.D.P.S. Act. The recovery of contraband poppy straw was effected from Turbo vehicle No. RJ 19-1G-9342 by Sub Inspector Shri Rugha Ram posted at P.S. Jaitaran on 3.1.2012. Investigation was conducted by the Circle Inspector Shri Ashok Aanjana. He interrogated the present petitioner as being the registered owner of the said vehicle. The petitioner claimed that he had sold the vehicle to Shri Moola Ram long before the recovery. The Investigating Officer collected positive documentary evidence to the effect that the petitioner had as a matter of fact sold the offending vehicle to Moola Ram on 26.5.2010. The vehicle had been originally purchased by the petitioner after taking loan from a finance company. The purchaser Moola Ram deposited the amount due to the finance company through cheques. The Investigating Officer concluded that Moola Ram was in control and possession of the offending vehicle at the time of the seizure. While filing the initial charge-sheet in the Special Court, Moola Ram was arraigned as an accused for the offence under Sections 8/15 and 25 of the N.D.P.S. Act and the petitioner was cited as a witness for proving the factum of sale of the vehicle to Moola Ram. While filing the initial charge-sheet in the Special Court, Moola Ram was arraigned as an accused for the offence under Sections 8/15 and 25 of the N.D.P.S. Act and the petitioner was cited as a witness for proving the factum of sale of the vehicle to Moola Ram. It appears that while filing the charge-sheet, investigation was shown to be pending against some persons including the present petitioner. Later on, final charge-sheet was filed implicating the petitioner for the offence under Section 8/25 of the N.D.P.S. Act. Learned counsel for the petitioner submits that the Investigating Officer, while filing the first charge-sheet affirmatively concluded on the basis of oral and documentary evidence that the offending vehicle had been sold by the petitioner to Moola Ram long before the recovery of the contraband and that is why, charge-sheet was filed against Moola Ram for the offence under Section 8/25 of the N.D.P.S. Act. Thus, there was no justification for the subsequent charge-sheet arraigning the petitioner as an accused for the same offence. He contends that as a matter of fact, the petitioner is the most vital witness of the prosecution for proving the charge for the offence under Section 8/25 of the N.D.P.S. Act against Moola Ram. The trial Court has already framed charges for the offences under Section 8/15 read with 8/25 of the N.D.P.S. Act against Moola Ram on 15.6.2013 and thus the petitioner could not have been charged for the offence under Section 8/25 of the N.D.P.S. Act because by virtue of such an action, the seller and the purchaser are alleged to be simultaneously in control of the offending vehicle which is an apparent anomaly. He contends that as admittedly the vehicle had been sold by the petitioner to Moola Ram long before the recovery, the order framing charge against the petitioner for the offence under Section 8/25 of the N.D.P.S. Act is totally unjust and illegal and deserves to be quashed. Learned P.P. though formally opposes the submissions advanced by the learned counsel for the petitioner but he too agrees that subsequent charge-sheet appears to have been filed because of sheer inadvertence. Heard learned counsel for the parties and perused the material available on record. Learned P.P. though formally opposes the submissions advanced by the learned counsel for the petitioner but he too agrees that subsequent charge-sheet appears to have been filed because of sheer inadvertence. Heard learned counsel for the parties and perused the material available on record. It is undisputed that while filing the first charge-sheet, the Investigating Officer concluded that the petitioner had sold the vehicle to Moola Ram who was in possession thereof at the time of recovery. It is also not disputed that the dues of the finance company towards the loan taken for purchase of the vehicle were cleared by Moola Ram. Moola Ram applied for interim custody of the vehicle and the trial Court, by order dated 14.12.2012 accepted the application holding that he had purchased the vehicle from the present petitioner. The investigation officer, while filing the first charge-sheet, concluded that Moola Ram was in possession and control of the vehicle on the date of the seizure having purchased it from the petitioner under a written agreement. The trial Court has earlier, framed charge against Moola Ram for the offences under Sections 8/15 and 8/25 of the N.D.P.S. Act. The petitioner was cited as a witness for proving the sale. In this view of the matter, this Court is of the opinion that the trial Court committed grave factual and legal error in framing the charge against the petitioner for the offence under Section 8/25 of the N.D.P.S. Act. The petitioner is a vital witness of the prosecution for proving the charge under Section 8/25 of the N.D.P.S. Act against Moola Ram. His arraignment as an accused in the case would virtually redeem Moola Ram. The trial Court, while considering the application for discharge filed by the petitioner, observed that the subsequent charge-sheet was filed implicating the petitioner for the offence under Section 8/25 of the N.D.P.S. Act after extensive investigation whereas the facts show otherwise. On going through the contents of the subsequent charge-sheet, it is apparent that it was filed in a most mechanical manner without even adverting to the findings recorded in the first charge-sheet regarding the ownership and possession of the vehicle. The trial Court too, while passing the impugned order dated 15.12.2015 committed the same error. On going through the contents of the subsequent charge-sheet, it is apparent that it was filed in a most mechanical manner without even adverting to the findings recorded in the first charge-sheet regarding the ownership and possession of the vehicle. The trial Court too, while passing the impugned order dated 15.12.2015 committed the same error. In view of the admitted factual scenario noticed above, there could not have been any justification for the trial Court to have charged the petitioner for the offence under Section 8/25 of the N.D.P.S. Act. The impugned order is totally illegal. Resultantly, the instant revision deserves to be and is hereby allowed. The order dated 15.12.2015 passed by learned Special Judge, N.D.P.S. Act Cases, Jodhpur is set aside. Stay petition also stands disposed of.