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2018 DIGILAW 547 (GAU)

Anjai Kumar Singh v. Union of India

2018-03-27

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. D. Das, learned senior counsel for petitioner and Mr. S.C. Keyal, learned Asstt. Solicitor General of India. 2. By this petition under Section 482 of the Cr.P.C. the petitioner, who is an accused in Special (NDPS) case 5/2005 before the learned Special Judge (NDPS), seeks quashing of the order of the learned Special Judge dated 20.8.2015 whereby charge u/s. 20(b)(ii)(C) of the NDPS Act, 1985 is framed against the petitioner. 3. The prosecution case in a nutshell is that acting on specific information DRI officers at Guwahati with the assistance with the Assam police on 5.9.2005 at 2100 hrs intercepted three TATA trucks at southern end of Koliabhomra Bridge on the Brahmaputra River and on search of the trucks a total of 9208.6 kg of Manipuri ganja valued at Rs. 4,60,43,000, 8 rifles and 12 rounds of live ammunition etc valued at Rs. 8,06,200 and the vehicles valued at Rs. 9 lakh were allegedly recovered from the 12 persons found in the vehicles and they were taken into custody. Statements of the accused persons were recorded u/s. 67 of the NDPS Act. They disclosed names of other accused persons including the petitioner. At the conclusion of the investigation the final complaint was submitted against all the accused among whom the present accused along with 3 others were shown absconders. 4. On appearance of all the accused persons trial commenced before the learned Special Judge and after furnishing the necessary copies charge was framed on 20.8.2015 and thereafter the prosecution examined 7 witnesses(out of eight). At this stage the present petitioner came up with this petition seeking quashing of the charge and the entire proceeding on the ground that he is not implicated in the complaint and though the final complaint has been filed showing him absconder, the same is not at all maintainable inasmuch as the articles seized were not recovered from him and only on the basis of the statement of the co-accused u/s. 67 of the Act he cannot be roped in to the offence. 5. Referring to the decision of this court in criminal petition 765/2015 and 57/2016 it is urged that charge against two similarly situated accused absconders Sri Singh alias Mukhia and Md. Haider Ali has been quashed by this court and so the present petitioner should be given the same benefit. 6. 5. Referring to the decision of this court in criminal petition 765/2015 and 57/2016 it is urged that charge against two similarly situated accused absconders Sri Singh alias Mukhia and Md. Haider Ali has been quashed by this court and so the present petitioner should be given the same benefit. 6. Learned senior counsel for the petitioner Mr. D. Das has strenuously argued that although the prosecution on the basis of the statement of the co-accused recorded u/s. 67 of the Act has implicated the present petitioner but no such statement has been exhibited by the trial court. On the other hand. PW6 and PW7 have implicated the present petitioner but there is no corroboration between them and accordingly it is urged that there being no legal evidence against the present petitioner coupled with the fact that there is no recovery from the petitioner the charge framed is not sustainable and there is bleak chance of conviction. Prayer is also to give the same benefit which is given to the other co-accused by way of parity. 7. Reliance is placed in (1960) 3 SCR 388 R.P. Kapur Vs. State of Punjab to submit that the inherent jurisdiction u/s. 482 of the Cr.P.C. can be successfully invoked by the High Court where there is no legal evidence in support of the case, or evidence adduced clearly or manifestly fails to prove the charge. It is further held that it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate. 8. Further it is contended that the confessional statement of co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the court, reliance is placed on the decision of (2018) 8 SCC 271 . 9. Relying upon the decisions mentioned above it is submitted by Mr. Das. 9. Relying upon the decisions mentioned above it is submitted by Mr. Das. that on the basis of the statement of co-accused in absence of substantive evidence against the petitioner no prima facie case is made out against him. 10. Per contra, learned ASGI Mr. Keyal has vehemently opposed the prayer of the petitioner that the trial is at the fag end and at this stage quashing of the proceeding will amount to quashing of trial whereas all the witnesses are already examined except one witness. It is pointed out that in the complaint itself (para 56) the complicity of the petitioner is indicated wherein it is stated that he was instrumental to send some of the arrested accused by offering money and was one of the gang leaders in trafficking the seized articles and had planned the said operation. Further, there was statement of other co-accused recorded u/s. 67 of the Act, who has disclosed that the petitioner is involved in the said trafficking. The same aspect is also divulged in course of trial by some of the other witnesses. Accordingly it is submitted that at the time of framing charge there was prima facie material before the court and as such there was no irregularity in framing the charge and in course of the trial also the complicity of the petitioner is made out by the witnesses and the trial court will adjudge legality of the said evidence. This court is not in a position to appreciate the evidence led before the trial court. 11. Mr. Keyal has placed reliance on the decision in Prachi Bread Bakers Pvt. Ltd. Vs. Sri Maa Enterprise & Anr (2008) 2 GLT 356 and Umesh Kumar Vs. Andhra Pradesh (2013) 10 SCC 591 to submit that the charges framed by the trial court cannot be quashed by the High Court by weighing the correctness or sufficiency of evidence. Neither detail inquiry nor meticulous analysis of material or assessment or reliability or genuineness of allegation in the complaint warranted while examining the prayer of quashing complaint. 12. I have given due consideration to the submissions made above and gone through documents annexed. 13. Neither detail inquiry nor meticulous analysis of material or assessment or reliability or genuineness of allegation in the complaint warranted while examining the prayer of quashing complaint. 12. I have given due consideration to the submissions made above and gone through documents annexed. 13. It may be mentioned here that the earlier two accused persons came before this court as far back as 2015 challenging the charges and this court allowed their prayer but this petition is filed much later in the year 2017 and by this time almost all the witnesses have been examined and some of the witnesses have also implicated the petitioner. Copies of statements of the witnesses are also annexed to the petition wherein PW6 and PW7 have stated about the complicity of the petitioner. This court cannot ignore the said aspect which is brought to the notice of this court. The offence itself is related to recovery of a large amount of drugs which is commercial quantity. The final complaint has already implicated the petitioner on the basis of which charges are framed. Only because the petitioner was not implicated in the complaint itself cannot be a ground to reject the entire prosecution case as subsequent material has emerged in course of the investigation which indicated the complicity of petitioner. The scope of Section 29 of the Act cannot be denied in the given background of the case. 14. The law to invoke the power u/s. 482 of the Cr.P.C. is well defined. This extraordinary power can be invoked only to prevent the abuse of the process of law and otherwise to secure ends of justice. In State of Haryana Vs. Bhajan lal (1992) Suppl (1) SC 335 the Honourable Apex Court has laid down certain parameters when the High Court can exercise such power, which are as follows: (i) Where the allegations made in the First Information Report (FIR), or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the First Information Report (FIR) and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s. 156(1) of the Code except under order of the Magistrate within the purview of Sec. 155(2) of the Code. (ii) Where the allegations in the First Information Report (FIR) and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s. 156(1) of the Code except under order of the Magistrate within the purview of Sec. 155(2) of the Code. (iii) Where the uncontroverted allegations made in the First Information Report (FIR) or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute a non-cognisable offence and no investigation is permitted by a police officer without an order from a Magistrate as contemplated under Sec. 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can reach such a conclusion is just conclusion that there is sufficient ground for offence. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceeding at or where there is specific provision of the Code or Act providing efficacious redress or the grievances for the aggrieved party. (vii) Where the criminal proceeding is manifestly attended with mala fide or where the proceeding is maliciously instituted with an ulterior motive or wreaking vengeance on the accused with a view to spite him due to private and personal grudge. 15. In Minu Kumari & Anr Vs. State of Bihar & Ors. (2006) 4 SCC 359 and Narinder Singh & Ors. Vs. State of Punjab & Anr. (2014) 6 SCC 466 , it is held that the provision of Section 482 of the Cr.P.C. should not be exercised to stifle the legitimate prosecution and the High Court should refrain from giving a prima facie decision. When the prosecution evidence is almost completed or after conclusion of evidence the matter is at the stage of argument the trial court is in a position to decide the case finally on merits whether the offence was committed or not and normally the High Court should refrain itself from invoking its power u/s. 482 of the Code. 16. In Umesh Kumar Vs. 16. In Umesh Kumar Vs. Andhra Pradesh (2013) 10 SCC 591 , the Supreme Court has held that in exercising such power it is not permissible to appreciate the evidence as it can evaluate material documents on record to the extent of prima facie satisfaction of existence of sufficient ground to proceed against the accused and cannot look at the material, the acceptability of which is essentially a matter of trial. 17. Reverting to the case at hand, as discussed above, there is evidence to suggest the complicity of petitioner and other witness is yet to be examined. Exercising the power under Section 482 of the Cr.P.C. is an exception, not the rule. The inherent jurisdiction is to be exercised carefully and with caution only when such exercise is justified by the rules specifically laid down in the Section itself. 18. In view of the guidelines laid down by the Apex Court this court under the guise of the provision of Section 482 of the Code cannot appreciate the evidence on record so as to decide the merit of the case as submitted by the learned senior counsel for the petitioner. The charge was framed as far back as 20.8.2015 and by this time prosecution evidence is almost complete and at this juncture the trial Court is in a position to decide the merit of the case having regard to all the material on record. 19. It may be mentioned here that in the criminal justice delivery system the balance tilts in favour of accused in case of any doubt in the trial. Non-compliance of any procedural aspect, lack of proper evidence if any as contended will lean in favour of the defence at the end of the trial. 20. Upon hearing the parties and going by the entire material on record this court finds it difficult to accept the submission of the learned senior counsel to allow the petition by giving parity to the earlier decision of the coordinate Bench of this court. 21. In view of all above the petition is dismissed with direction to the trial court to conclude the trial without further delay preferably within two months from the date of receiving certified copy of this judgment.