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2021 DIGILAW 450 (JK)

Munish Khosla v. State of J&K

2021-09-02

PUNEET GUPTA

body2021
JUDGMENT : 1. The petitioner through the medium of present petition has sought setting aside of order dated 18.10.2011, passed by the court of learned Principal Sessions Judge, Jammu, whereby the court has directed framing of charges against the petitioner herein and the private respondents under Sections 8/21/29/60 NDPS Act and consequently framed formal charges against them, on the ground that the so called statement recorded by the petitioner before the respondent No. 1 in terms of Section 67 NDPS Act does not disclose any offence against the petitioner. In fact there was no material which could prompt the trial court to frame charges against the petitioner. As the present petition has been filed by one of the accused in the case, namely, Munish Khosla, the order passed in the present petition shall govern the said petitioner and any observation or finding herein shall confine to the present petition and not to have any effect on the merits of the case pending before the trial court. It is submitted during the course of arguments that the respondent No. 3, Vishal Gupta, has since expired. 2. Heard Mr. P.N. Raina, learned Senior counsel for the petitioner and Mr. Suneel Malhotra, learned Government Advocate appearing for respondent No. 1. 3. The complaint filed by the respondent No. 1 reveals that the occurrence of 23.07.2007 which is stated to have taken place at B.C. Road, near Shakuntla Theatre resulted into filing of the complaint against the petitioner herein and three other accused persons. As per the case set up by the complainant, one Maruti Car bearing registration no. DL8CD-5211 was intercepted near Shakuntla Cinema as the naka was laid by the NCB team. During checking, Pritam Singh and Vishal Gupta were found to be the occupants of the vehicle. The vehicle was searched and 0.600 kilo gram cocaine was allegedly found in the vehicle. The seizure of the contraband and other formalities were completed. The statements of the aforesaid persons under Section 67 NDPS Act were recorded and they revealed the involvement of Munish Khosla and Rahil Verma alias Ricky in this case of smuggling of the narcotic drugs. The statement of petitioner-Munish Khosla under Section 67 of the NDPS Act was recorded on 24.07.2009. The accused Rahil Verma who is stated to have supplied the narcotics to Pritam Singh and Vishal Gupta is still at large. 4. Mr. The statement of petitioner-Munish Khosla under Section 67 of the NDPS Act was recorded on 24.07.2009. The accused Rahil Verma who is stated to have supplied the narcotics to Pritam Singh and Vishal Gupta is still at large. 4. Mr. P.N. Raina, learned senior counsel appearing for the petitioner has argued that except for the statement of the petitioner under Section 67 of the Act there is no other evidence on record to connect the accused with the alleged commission of offence. In fact the statement recorded under Section 67 of the Act is not admissible in terms of the judgment of the Hon'ble Supreme Court titled Tofan Singh v. State of Tamil Nadu, Criminal Appeal No. 152/2013, decided on 29.10.2020 : 2020 (5) JKJ 270[SC]. Further it is submitted that the statement itself does not make out any case for framing the charges against the petitioner. Mr. Malhotra, learned Government Advocate appearing for respondent No. 1 has submitted that the involvement of the petitioner is prima facie evident from the statement recorded in terms of Section 67 of the Act. There is no illegality in the order impugned in the present petition. 5. It is not in dispute that except for the statement recorded under Section 67 of the Act there is no other evidence implicating the petitioner in the present case. It is apparent from the order impugned in the petition that the trial court while framing the charges against the petitioner-accused also has not stated as to how the evidence brought on record by the complainant makes out a case for framing charges against the petitioner-accused. The trial court has indeed given the facts as mentioned in the complaint and has also stated that at the stage of framing of charge the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. 6. The bare look at the statement of the petitioner recorded allegedly in terms of Section 67 of the Act does not prima facie reveal the necessary material against the petitioner-Munish Khosla which could make out a case for framing charges against him. It is just that the accused Pritam Singh and Vishal Gupta are reported to have mentioned the name of the petitioner of his involvement in the case. It is just that the accused Pritam Singh and Vishal Gupta are reported to have mentioned the name of the petitioner of his involvement in the case. In pursuance to the same, the statement of the petitioner has been recorded in terms of Section 67 of the Act. Looking to the statement of the petitioner recorded on 24.07.2009 it is revealed that the petitioner was made aware of the fact by Pritam that he is in contact with a party who intends to purchase white powder and in case the petitioner arranges the white powder Pritam will give him substantial sum in lieu of the same. The petitioner has further revealed in his statement that Vishal Gupta informed the petitioner that he will arrange the white powder and he should bring the money. Thereafter he along with Pritam visited the shop of Vishal and Pritam gave 2.80 lacs for the narcotics to Pritam. He had also contributed Rs.5000/- in it but as Vishal could not arrange the narcotics, therefore, Vishal returned the money to Pritam. On 22.07.2009 Vishal telephoned him that his friend Rahil Verma possesses white powder as per the call received by him. The petitioner then made a call to Pritam and asked him to talk to Vishal as his mother is serious and he refused to accompany the said Pritam. He came to know of the occurrence of 23.7.2009 on 24.07.2009. He had agreed to work with Vishal Gupta and Pritam as he was in need of money. What is culled out from the statement of the petitioner is that he had at some point of time intended to contribute for the purchase of the narcotics but that transaction did not materialize. So far as the occurrence of 23.07.2009 is concerned the court does not find that the statement of the accused Munish Khosla connects him with the recovery alleged to have been made on 23.07.2009 from the accused Pritam Singh and Vishal Gupta. It is not prima facie made out from the statement that the petitioner herein had facilitated the procurement of the narcotics or had otherwise any connection with the narcotics which was recovered on 23.07.2009 from the vehicle of which Pritam Singh and Vishal Gupta were occupants. It is not prima facie made out from the statement that the petitioner herein had facilitated the procurement of the narcotics or had otherwise any connection with the narcotics which was recovered on 23.07.2009 from the vehicle of which Pritam Singh and Vishal Gupta were occupants. May be the respondent-agency could set up some case against the petitioner on the basis of the statement but the statement does not, in any case, connect the petitioner with the occurrence of 23.7.2009. Since the statement of 24.07.2009 of the petitioner reportedly recorded under Section 67 of the NDPS Act does not reveal the involvement of the petitioner in connection with the recovery made on 23.07.2009 and there is no other material on record to show the complicity of the petitioner in the mater, the court is of the view that there was no sufficient ground to frame charges against the accused-Munish Khosla. Merely because the complaint is lodged under different provisions of the NDPS Act does not mean that the court is bound to frame the charges against the accused persons. The court is not required to sift the evidence while considering framing of charges but at the same time sufficient material has to be there on record for framing of the charges against the accused. In the present case necessary material to frame charges against the petitioner is found wanting. 7. In addition the argument of the learned counsel for the petitioner that the so called confessional statement recorded under Section 67 of the NDPS Act is hit by Section 25 of the Evidence Act and, therefore, the statement recorded of the petitioner under Section 67 has no value in the eyes of law in view of the judgment in Tofan Singh's case (supra) could not be met by the learned counsel for the respondent. 8. In view of the discussion made above, the court finds merit in the petition. The petition is allowed and the order impugned dated 18.10.2011 directing framing of charge and consequently the formal framing of charge against the petitioner-Munish Khosla are set aside.