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2021 DIGILAW 1183 (RAJ)

Amba Lal v. State

2021-07-20

SANDEEP MEHTA

body2021
JUDGMENT 1. The instant revision petition has been preferred by the accused-petitioners Ambalal, Radheyshyam and Chhogalal for assailing the order dated 31.10.2018 passed by learned Special Judge, NDPS Cases No.2, Chittorgarh in Sessions Case No.46/2014 (47/2008) whereby charges were framed against the accused petitioners for the offences punishable under Section 8/18 of the NDPS Act and Sections 211 & 120-B of the IPC. 2. Previously by order dated 04.07.2014, the trial court had framed charges against the petitioners for offence under Section 8/29 of the NDPS Act. The said order was challenged by the petitioners by filing a revision (No. 1280/2014) which came to be decided by order dated 22.05.2015 and the order dated 04.07.2014 was quashed and set aside in the following manner:- 3. In furtherance to such direction, the trial court re-heard the arguments advanced by learned defence counsel and learned Public Prosecutor and passed the order dated 31.10.2018 framing charges against the petitioners in the above terms. 4. Briefly stated the facts relevant and essential for disposal of the revision are noted herein below:- On 21.01.2007, the SHO PS Badi Sadari received a secret information and acting in furtherance thereof he proceeded to search the house of one Rooplal Dangi at the Village Fachar and recovered 1 Kg of contraband opium. Rooplal was arrested and after conducting investigation, the petitioners too were arrested in this case. The Investigating Officer carried out investigation and reached to a conclusion that the petitioners had conspired to get the opium planted in the house of Rooplal. Accordingly, an application under Section 169 Cr.P.C. was filed qua the accused Rooplal whereas the accused petitioners were charge-sheeted for the offence under Section 8/29 of the NDPS Act. The Special Court rejected the application under Section 169 Cr.P.C. filed by the 10 qua the accused Rooplal and the matter was sent back to the investigating agency for further investigation by a senior police officer. In furtherance to the said direction, further investigation was undertaken and once more, the 10 proceeded to submit an application under Section 169 Cr.P.C. qua the accused Rooplal while the chargesheet against the petitioners was reiterated. In furtherance to the said direction, further investigation was undertaken and once more, the 10 proceeded to submit an application under Section 169 Cr.P.C. qua the accused Rooplal while the chargesheet against the petitioners was reiterated. The trial court rejected the said application and took cognizance against accused Rooplal for the offence under Section 8/18 of the NDPS Act observing that the investigating agency was seeking discharge of the said accused purely on the basis of the confessional statements of the co-accused persons, which were ex-facie not admissible in evidence and on the contrary, the witnesses of seizure were establishing a prima facie case against the accused Rooplal. Upon remand by this Court, the matter was re-heard and charges were framed against the accused petitioners as above by order dated 31.10.2018 which is assailed in this revision. 5. Learned counsel Shri Pitaliya vehemently and fervently urged that there does not exist a semblance of evidence on the record of the case so as to justify framing of charges against the petitioners for the offences mentioned above. He urged that the possession of the opium in question has been persistently attributed to Rooplal as he has been charged by the trial court for the offence under Section 8/18 of the NDPS Act by observing that there is prima facie evidence on record to show his involvement for such offence. Shri Pitaliya urged that ex-facie, there is no material whatsoever on the entire record which can show that the petitioners were ever in possession or control of the house from where the opium was recovered or that they got the opium planted and thus, there was no justification whatsoever for the trial court to have directed framing of charges against the petitioners for the offence under Section 8/18 of the NDPS Act which makes possession of contraband opium to be an offence or for the offences under Sections 211 & 120-B IPC. He further urged that this Court had directed trial court vide order dated 22.05.2015 to reconsider the matter and pass a reasoned order as to whether there exists evidence to hold the petitioners prima facie liable for the offence punishable under Section 8/29 of the NDPS Act. He further urged that this Court had directed trial court vide order dated 22.05.2015 to reconsider the matter and pass a reasoned order as to whether there exists evidence to hold the petitioners prima facie liable for the offence punishable under Section 8/29 of the NDPS Act. However, the trial court has passed a very conjectural, laconic and anomalous order because the petitioners have been specifically discharged from the offence punishable under Section 8/29 of the NDPS Act but thereafter it has been observed that the petitioners conspired together and planted opium in the house of Rooplal and instead, they have been charged for the offence punishable under Section 8/18 of the NDPS Act and Section 120-B of the IPC. He further submits that once the petitioners have been discharged/exonerated from the charge of hatching a conspiracy and planting opium in the house of Rooplal, they could not have been charged for the offences under Sections 120-B & 211 of the IPC. On these submissions, Shri Pitaliya craved acceptance of the revision and urged that the petitioners deserve to be completely exonerated and discharged from the charges. 6. Learned Public Prosecutor on the other hand vehemently and fervently opposed the submissions advanced by the petitioners' counsel and contended that at the stage of framing of charges, the trial court is not required to make a meticulous appreciation of the evidence available on record and even strong suspicion is sufficient to frame charge against the accused. Nonetheless he too is not in a position to dispute the fact that the findings recorded by the trial court in the impugned order are self-contradictory inasmuch as, the petitioners have been discharged from the offence punishable under Section 8/29 of the NDPS Act and at the same time, they have been charged for the offence punishable under Section 120-B of the IPC whereas both the offences deal with conspiracy. 7. I have given my thoughtful consideration to the facts and circumstances as available on record and have gone the impugned order dated 31.10.2018, the previous order dated 22.05.2015 passed by this Court in the revision of the petitioners and the charge-sheet. 8. 7. I have given my thoughtful consideration to the facts and circumstances as available on record and have gone the impugned order dated 31.10.2018, the previous order dated 22.05.2015 passed by this Court in the revision of the petitioners and the charge-sheet. 8. Suffice it to say that in the first round of litigation, while remanding the matter to the trial court, by order dated 22.05.2015, this Court had directed the trial court to consider the evidence available on record to find out whether there existed prima facie material to charge the accused for the offence under Section 8/29 of the NDPS Act. However, after remand, the trial court discharged the accused from the offence punishable under Section 8/29 of the NDPS Act and instead, had directed framing of charge against them in the above terms. 9. Strictly speaking, in terms of Section 216 Cr.P.C, the trial court on remand, was not powerless to reconsider as to what charges ought to have been framed against the accused on the basis of evidence available on record but then in the circumstances noted above the order passed by the trial court on the aspect of charge had to be reasoned, logical and based on legally admissible evidence. It is equally true that an order framing charge can be passed if there exist strong suspicion against the accused but such suspicion has to be based on legally admissible evidence and charge cannot be framed merely on whims and caprices. Once, this Court remanded the case for reconsideration to pass a fresh order on charge after providing opportunity of hearing to the parties, it was expected of the trial court to have referred to evidence available on record, before directing framing of charge against the accused in this case. The fact that the charge framed against the accused Rooplal for the offence under Section 8/18 of the NDPS Act by order dated 04.07.2014 has attained finality is very material and relevant but unfortunately, the trial court has totally ignored this important aspect of the matter while directing framing of charge against the accused petitioner in the above terms. The trial court recorded following findings in the impugned order:- 10. The trial court recorded following findings in the impugned order:- 10. On a bare perusal of these observations and findings of the trial court, it is apparent that no consideration whatsoever was made by the trial court to any legal evidence available on record on the basis whereof the above conclusions were drawn against the accused. Only the findings recorded by the 10 in the charge-sheet which are totally conjectural in nature were reproduced in a totally mechanical manner and the charges were directed to be framed against the accused-petitioners. 11. In wake of the discussion made hereinabove, I am of the firm opinion that the impugned order dated 31.10.2018 does not stand to scrutiny as the same has been passed without referring to the admissible evidence, if any available on record so as to direct framing of charge against the accused petitioners for the offence under 8/18 of the NDPS Act and Sections 211 & 120-B of the IPC. Thus, the impugned order dated 31.10.2018 is hereby quashed and set aside. The matter is remanded to the trial court to pass a fresh order on the question of framing charges against the petitioners. Such exercise shall be undertaken after providing opportunity of hearing to the petitioners' counsel and learned Public Prosecutor and thereafter the trial court shall pass a reasoned order by referring to the legally admissible material available on record. The trial court shall proceed with the matter expeditiously and fresh order after remand shall be passed within a period of two months from the date of receipt of copy of this order. The revision is allowed in these terms.