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2023 DIGILAW 289 (JK)

Samiullah Dar v. UT of J&K

2023-07-19

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged order dated 02.02.2023 passed by learned Principal Sessions Judge, Pulwama, whereby, inter alia, the petitioner has been charged for offences under Section 8/21 read with Section 29 of the NDPS Act. 2. Briefly stated, the case of the prosecution is that on 1st November 2022, Police Station, Pulwama, received information that accused Sheikh Imran has concealed contraband substance in his cow shed located at Alamdar Colony, Prichoo, Pulwama. Upon receiving this information, the police along with the Executive Magistrate proceeded to the spot and searched the cow shed of accused Sheikh Imran and recovered 13 bottles of Codeine therefrom. The aforementioned accused made a disclosure statement that other accused including the petitioner herein are involved in the business of drug trafficking. In the disclosure statement, the said accused further stated that accused Gowhar Ahmad Najar is in the process of transporting more contraband drugs to him. On the basis of this disclosure statement, the Dy.SP along with his escort laid a Naka at Wagum Mode Degree College, Pulwama, and on the basis of identification made by accused Sheikh Imran, one vehicle (Grand I10) bearing registration No.JK13E/6062 was intercepted. Upon search of the said vehicle, 11 Codeine bottles, two boxes containing 900 tables of Anxit, eight boxes of medicine Petril MD 0.5mg containing 800 tablets and Rs.80,000/ of Indian currency notes were recovered. Accused Gowhar Ahmad Najar could not furnish any explanation about the possession of these drugs. He is stated to have made a disclosure statement wherein he deposed about the involvement of other accused by stating that he obtained these drugs from accused Javaid Ahmad Dar and accused Sabzar Ahmad Parray through petitioner and accused Zain Mohammad Teli. In his disclosure statement, accused Gowhar Ahmad Najar further stated that accused Zain Mohammad Teli would carry these drugs in his car/vehicle with the aid and in presence of the petitioner herein with a view to sell these drugs to him. Thus, according to the prosecution story, all the accused including the petitioner herein are involved in commission of offences under Section 8/21 read with Section 29 of the NDPS Act. On the basis of these allegations, FIR No.302/2021 of Police Station, Pulwama, was registered and the investigation was set into motion. 3. Thus, according to the prosecution story, all the accused including the petitioner herein are involved in commission of offences under Section 8/21 read with Section 29 of the NDPS Act. On the basis of these allegations, FIR No.302/2021 of Police Station, Pulwama, was registered and the investigation was set into motion. 3. During the course of investigation, on 04.11.2021, accused Javaid Ahmad Dar and Aijaz Ahmad Bhat came to be arrested and they made confessional statements corroborating the confessional statement made by accused Sheikh Imran and Gowhar Ahmad Najar. During the investigation of the case, on 12.11.2021, accused Sabzar Ahmad Parray was also arrested who disclosed that he had purchased drugs from Yatoo Enterprises through its Proprietor Ghulam Hassan Yatoo. The said accused further disclosed that he was purchasing the drugs from different medical agencies as per the directions of the petitioner and accused Zain Mohammad Teli and thereafter, he would sell the same to different persons including accused Gowhar Ahmad Najar. 4. On 02.12.2021, the petitioner and accused Zain Mohammad Teli came to be arrested and they disclosed that they had purchased the drugs from accused Sabzar Ahmad Parray who is running a medical agency in the name of ‘Parray Enterprises’ and transported the said drugs in the vehicle belonging to accused Zain Mohammad Teli, for handing over the same to accused Gowhar Ahmad Najar, for the purpose of sale. During the investigation of the case, call details of the petitioner were obtained and it was also found that a huge amount of cash had been deposited in his account by some unknown persons. It was found that the petitioner was in contact with other accused persons. It was also found that the petitioner would use the vehicle belonging to accused Zain Mohammad Teli bearing registration No.JK22-0842 for transporting the illicit drugs from one place to another. According to prosecution case, the petitioner and accused Gowhar Ahmad Najar would secretly discuss about the trade of illicit drugs in the clinic. 5. It is the case of the prosecution that on the basis of aforesaid allegations, which came to the fore after the investigation of the case, offences under Section 8/21, 22(c) read with Section 29 of the NDPS Act stand established against the accused persons including the petitioner herein. Accordingly, the charge sheet was laid before the court. 5. It is the case of the prosecution that on the basis of aforesaid allegations, which came to the fore after the investigation of the case, offences under Section 8/21, 22(c) read with Section 29 of the NDPS Act stand established against the accused persons including the petitioner herein. Accordingly, the charge sheet was laid before the court. The learned trial court has, after hearing the prosecution and the counsel for the accused persons including the petitioner herein, passed the impugned order whereby all the accused have been charged for offences under Section 8/21 read with Section 29 of the NDPS Act. 6. The impugned order has been challenged by the petitioner herein on the ground that the same has been passed in a mechanical manner without application of mind. It has been further contended that the charge against the petitioner has been framed on the basis of confessional statement of the co-accused which is inadmissible in evidence. It has been further submitted that even if the statements made by the prosecution witnesses during the course of investigation of the case are taken at their face value, still then no offence, much less an offence of conspiracy, is made out against the petitioner. According to the petitioner, the impugned order has resulted in grave miscarriage of justice to him as he has to undergo trial without there being any material against him. 7. I have heard learned counsel for the parties and perused the material on record including the impugned order and the trial court record. 8. So far as the trial of offences under the NDPS Act is concerned, the same is to be undertaken before a Special Court constituted under Section 36 of the said Act and the Special Court is deemed to be a Sessions Court while trying such offences. Section 36D of the NDPS Act is a transitional provision which provides for trial of the offence before a Court of Sessions until a Special Court is constituted. In view of this position, the procedure for undertaking trial of offences under NDPS Act is to be governed by the procedure for trial of Sessions cases as provided under the Code of Criminal Procedure. 9. In view of this position, the procedure for undertaking trial of offences under NDPS Act is to be governed by the procedure for trial of Sessions cases as provided under the Code of Criminal Procedure. 9. Sections 227 and 228 of the Criminal Procedure Code provide the guidelines to a Court for discharge/charge of an accused at the time of considering the material laid by the investigating agency before it. These provisions read as under: 227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge.— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 10. A conjoint reading of the afore-quoted two provisions show that if the Court, after considering the record of the case, finds that there is no sufficient ground for proceeding against the accused, he has to be discharged and if, upon consideration of the record, the Court is of the opinion that there is ground for presuming that the accused has committed the offence, charge has to be framed against him. 11. The purpose of Sections 227 and 228 of the Cr. 11. The purpose of Sections 227 and 228 of the Cr. P. C is to ensure that the Court, before framing charge against an accused, has to satisfy itself that the allegations made against him are not frivolous in nature and that there is some material against him that would warrant proceeding against such accused. The Supreme Court has, in the case of Keval Krishan vs. Suraj Bhan, (1980) Supp.(1) SCC 499, held that Section 227 is a beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. 12. At the time of framing of the charge, the Court has to see as to whether the evidentiary material on record if generally accepted, would connect the accused with the crime. The expression ‘sufficiency of ground’ used in Section 227 of the Cr. P. C connotes that if the Sessions Judge taking the material on its face value is of the opinion that there is a prima facie case against the accused, then charge has to be framed. The statements on record are to be taken at their face value and their truth or veracity cannot be judged at the charge stage. Even a strong suspicion found on material before the court is sufficient to frame the charge. 13. However, the Court cannot automatically frame the charge because the prosecution wants it. This Court has, in the case of State vs. A. K. Jain, 2002 (1) SLJ J&K 69, observed that the court while framing the charge, has to apply its judicial mind for consideration as to whether or not there is any ground to believe that accused has committed the offence for which he is charge sheeted before it by investigating agency. It has been further observed that framing of charge for an offence against the accused without any material on the file affects his liberty and unless a prima facie case is made out for which charge could be framed, the accused is to be discharged. 14. It has been further observed that framing of charge for an offence against the accused without any material on the file affects his liberty and unless a prima facie case is made out for which charge could be framed, the accused is to be discharged. 14. The Supreme Court has, in the case of Naranjan Singh Karan Singh Punjabi vs. Jeetader Bim Raj ( AIR 1990 SC 1962 ), observed that the court is required to evaluate the material and documents on record with the view of finding out if the facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence and it cannot be expected at the initial stage to accept all that the prosecution states as gospel truth, even if it is opposed to common sense. 15. Thus, from the foregoing discussion of the legal position, it is clear that framing of the charge is not an idle formality and whatever has been stated by the investigating agency in the charge sheet cannot be accepted as gospel truth. The court has to apply its judicial mind to the material collected by the investigating agency and then come to a conclusion whether or not there is any ground for proceeding against the accused. Without fully adverting to the material on record, the Court cannot blindly adopt the decision of the investigating agency, though the court is not required to scan the evidence minutely. The Court has to see whether on the basis of the material, it were to think that the accused might have committed the offence while framing charge against the accused, though for conviction, the conclusion is required to be that the accused has committed the offence. 16. In the light of the aforesaid legal position as regards the charge/discharge of an accused, let us now advert to the facts of the instant case. The petitioner, who is, admittedly, a doctor by profession, has been roped in the instant case on the basis of confessional statements made by co-accused, his call data record, the money alleged to have been deposited in his bank account and the statements of certain prosecution witnesses, according to whom he was conversing with co-accused Gowhar Ahmad Najar. 17. The petitioner, who is, admittedly, a doctor by profession, has been roped in the instant case on the basis of confessional statements made by co-accused, his call data record, the money alleged to have been deposited in his bank account and the statements of certain prosecution witnesses, according to whom he was conversing with co-accused Gowhar Ahmad Najar. 17. The first document, on the basis of which involvement of the petitioner in the alleged crime has been shown, is the disclosure statement made by co-accused Sheikh Imran. As per his disclosure statement, accused Gowhar Ahmad Najar was about to transport contraband drugs to him. His further disclosure is that in the trade of drug trafficking, other accused persons including the petitioner herein, are also involved. The other disclosure statement has been made by accused Gowhar Ahmad Najar, who has stated that on 1st November, 2021, the contraband drugs recovered by the police from his vehicle bearing No.JK13E/6062, were obtained by him from co-accused Javaid Ahmad Dar C/O Javaid Enterprises and Sabzar Ahmad Parray C/O Parray Enterprises, through petitioner and accused Zain Mohammad Teli. He goes on to state that accused Zain Mohammad Teli, in presence of the petitioner, would transport these drugs in his vehicle and handover the same to him. He further stated that Aijaz Ahmad Bhat is also involved in drug trafficking. 18. So far as the disclosure statement made by accused Sheikh Imran is concerned, his statement to the extent of recovery of drugs from the vehicle of accused Gowhar Ahmad Najar is admissible in evidence as the same is saved by the provisions contained in Section 27 of the Evidence Act but rest of the statement made by the said accused is inadmissible in evidence as the said witness has levelled allegations against the other accused including the petitioner herein while in custody of the police before the police officers/officials without anything having been recovered from the possession of these persons on the basis of the said statement. His statement is, therefore, hit by Section 25 of the Evidence Act which makes the confessional statement of an accused before a police officer inadmissible in evidence. 19. Now coming to the disclosure statement made by accused Gowhar Ahmad Najar. He is stated to have made the said statement in the presence of an Executive Magistrate. His statement is, therefore, hit by Section 25 of the Evidence Act which makes the confessional statement of an accused before a police officer inadmissible in evidence. 19. Now coming to the disclosure statement made by accused Gowhar Ahmad Najar. He is stated to have made the said statement in the presence of an Executive Magistrate. Admittedly, no recovery has been made pursuant to the aforesaid statement made by accused Gowhar Ahmad Najar while in custody in the presence of police officers/officials. 20. This Court in the case of Rayees Ahmad Dar vs. UT of J&K (Bail App No.05/2022 decided on 21.05.2022), has held that confessional statement made by an accused before an Executive Magistrate in presence of police while in custody of the police is inadmissible in evidence and the same is not saved by the provisions contained in Section 26 of the Evidence Act. It has been held that a confessional statement of an accused becomes admissible in evidence only if it is recorded before a Judicial Magistrate in the manner as provided in Section 164 of the Cr. P. C. Thus, neither the confessional statement of co-accused Sheikh Imran nor the confessional statement of co-accused Gowhar Ahmad Najar, to the extent they implicate the petitioner in the alleged crime, are admissible in evidence. These statements cannot be proved against the petitioner and, as such, the same cannot be used against him even for the purpose of framing charge. 21. That takes us to the call data records, according to which the petitioner was in touch with accused Gowhar Ahmad Najar. The investigating agency has collected the call data record of the petitioner, which shows that from 25.01.2021 upto 30.01.2021, there has been exchange of calls between him and accused Gowhar Ahmad Najar as many as 16 times. There is, however, evidence on record collected by the investigating agency which shows that accused Gowhar Ahmad Najar was working in the clinic where petitioner was attending to patients and the said accused would collect fee from the patients. The evidence on record clearly shows that the relationship of the said accused with the petitioner was that of an employee collecting fee for the doctor. In such circumstances, the contact between the petitioner and accused Gowhar Ahmad Najar cannot be termed as something unusual that would give rise to any suspicion about involvement of the petitioner in the conspiracy. The evidence on record clearly shows that the relationship of the said accused with the petitioner was that of an employee collecting fee for the doctor. In such circumstances, the contact between the petitioner and accused Gowhar Ahmad Najar cannot be termed as something unusual that would give rise to any suspicion about involvement of the petitioner in the conspiracy. Therefore, in these circumstances, mere exchange of telephone calls by the petitioner with Gowhar Ahmad Najar who is one of the key accused, would not by itself make the petitioner a part of the conspiracy. 22. Learned counsel for the respondent has relied upon the judgment of this Court in the case of Mashooq Ahmad Beigh vs. UT of J&K & Ors. (CRM(M) No.99/2022 decided on 10.08.2022), to support his contention that mere exchange of calls between a person and the main accused would be sufficient to frame charge against such person. The judgment relied upon by learned counsel for the respondent does not apply to the facts of the instant case because in the said case, there was not only exchange of calls between the person from whose possession the contraband drugs were recovered and the petitioner therein but there was also evidence on record that the petitioner therein was the owner of the vehicle in which the drugs were being carried. It is in those circumstances that this Court observed that offences under NDPS are made out against the said persons but in the instant case, the relationship between petitioner and the person from whose possession the drugs were recovered was that of a doctor and his employee and, as such, there was nothing unusual in exchange of calls between them. 23. The other material relied upon by the prosecution in this case is the statements of PWs Jahangir Alam Bhat, Faizan Farooq Mir and Arshad Hussain Dar. According to PW Jahangir Alam Bhat, on 30.01.2021, the petitioner as usual came to his clinic in the evening in a vehicle belonging to accused Zain Mohammad Teli, who is a medical representative. The vehicle was bearing registration No.JK22C-0842. The witness has further stated that accused Zain Mohammad Teli came inside the clinic with a box in his hand that was containing medicine and he handed over this box to accused Gowhar Ahmad Najar. The vehicle was bearing registration No.JK22C-0842. The witness has further stated that accused Zain Mohammad Teli came inside the clinic with a box in his hand that was containing medicine and he handed over this box to accused Gowhar Ahmad Najar. He also stated that accused Gowhar Ahmad Najar asked accused Zain Mohammad Teli to keep this box in his vehicle bearing No.JK13E-6062 and later on this box of medicines was recovered by police from the aforesaid vehicle. The statement of PW Faizan Farooq Mir is on similar lines. 24. PW Arshad Hussain Dar has stated that the petitioner does his private practice as a doctor in Lalded Diagnostic Centre, of which he happens to be the proprietor. He has further stated that accused Gowhar Ahmad Najar remains present in the laboratory when the petitioner comes over there. He also stated that one Aijaz Ahmad Bhat often comes to meet accused Gowhar Ahmad Najar who keeps on talking to him secretly. He has gone on to state that after some time, Pulwama Police recovered drugs and it was confirmed to him that the petitioner is also involved in the drug trade. 25. From the aforesaid statements, nothing incriminating comes to fore against the petitioner. What comes to the fore from these statements is that accused Gowhar Ahmad Najar was working as a part time employee with the petitioner for the purpose of collecting fees from patients. Merely because accused Zain Mohammad Teli came with a box of medicines in the clinic which did not belong to the petitioner and he handed over the same not to the petitioner but to accused Gowhar Ahmad Najar who kept it inside his own vehicle, does not make out a case of conspiracy against the petitioner. Similarly, if some talks were going on between petitioner and his employee i.e., accused Gowhar Ahmad Najar, which one of the witnesses felt to be suspicious in nature, does not show anything incriminating against the petitioner. These statements, even if taken at their face value, do not even lead to a suspicion about the involvement of the petitioner in the alleged crime. 26. Another circumstance which has been relied upon by the prosecution is deposition of cash amounts in the bank account of the petitioner. These statements, even if taken at their face value, do not even lead to a suspicion about the involvement of the petitioner in the alleged crime. 26. Another circumstance which has been relied upon by the prosecution is deposition of cash amounts in the bank account of the petitioner. Copies of pay-in-slips have been seized by the police during investigation of the case which reflect deposition of cash amounts in the account of petitioner from time to time. However, the investigating agency has not taken trouble to connect these deposits with any of the co-accused. Merely, because certain amounts have been deposited in the account of the petitioner, who, as per the prosecution case, happens to be a renowned doctor of the area, does not mean that he is involved in the alleged crime. 27. From the foregoing analysis of the facts and the material available on record, it is clear that the evidence relied upon by the prosecution against the petitioner is either inadmissible in nature or the same, even if taken at its face value, does not connect the petitioner with the alleged crime. The learned trial court has, while framing charges against the accused, relied upon inadmissible evidence and the material which does not connect the petitioner with the alleged crime. According to the learned trial court, a strong suspicion exists towards the criminal conspiracy angle against the petitioner. But even a strong suspicion has to be based on some material. Such a suspicion cannot be raised on the basis of inadmissible evidence and sketchy material which does not connect the petitioner with the alleged crime. The learned trial court has, therefore, landed itself into error while holding that there are grounds for presuming that the petitioner is involved in the alleged crime. 28. In view of the abovesaid discussion, the impugned order, if allowed to stand, would cause grave miscarriage of justice, inasmuch as the petitioner would be subjected to protracted trial without there being anything on record to presume that he is involved in the commission of the alleged crime. Therefore, this is a fit case where this Court should exercise its jurisdiction under Section 482 of the Cr. P. C to secure the ends of justice. 29. Therefore, this is a fit case where this Court should exercise its jurisdiction under Section 482 of the Cr. P. C to secure the ends of justice. 29. For the foregoing reasons, the petition is allowed, and the impugned order passed by the learned trial court, to the extent of framing charge against the petitioner, is set aside. The learned trial court shall, however, proceed against other accused persons in accordance with the law.