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2024 DIGILAW 107 (HP)

Kanishka Shekhar Singh v. State of H. P.

2024-01-12

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. A police party consisting of HC Sameer Kumar No. 46, C. Maha Chand No. 403 and HHG Anil Kumar, No. 7-2/16 were present at Rashi-Aage Jungle on 16.4.2019 at around 11.00 PM for Nakabandi and traffic checking duty. A vehicle bearing registration No. UP-63Z-0003 came from Malana at about 11:20 PM. The police stopped the vehicle for checking. Shreshta Pandey (petitioner No.5) was driving the vehicle and other petitioners were present in the vehicle. The police searched the vehicle and recovered one black bag kept underneath the driver seat containing 118 grams of charas. The police arrested the occupants, seized the charas, conducted the investigation and filed the charge sheet against the accused before the Court. 2. The petitioners-accused filed an application for discharge asserting that the Investigating Officer was not vested with the powers to carry out the investigation. The investigation could have been conducted by a Non-Gazetted Police Officer Grade-I who should be assisted by Non-Gazetted Police Officer Grade-II. The State had not framed any rules and the rules prescribed by the Central Government would apply to the present case. The entire exercise conducted by the Head Constable is without jurisdiction and the accused cannot be charged and tried for the commission of any offence. The Assistant Sub Inspector is a Non-Gazetted Police Officer in Grade I and the Head Constables are Police Officers in Grade II. In the absence of the Assistant Sub Inspector, the investigation could not have been conducted by the Head Constable. Therefore, it was prayed that the accused be discharged. 3. The application was opposed by the State by asserting that HC Sameer Kumar, who conducted the investigation, was competent to do so. There is no bar under Section 78(2) of the H.P. Police Act to the Head Constable to carry out the investigations. Provisions of Section 42 of the ND&PS Act do not apply to the present case. Therefore, it was prayed that the application be dismissed. 4. The learned Trial Court held that the Court cannot sift the evidence while framing the charge and has to proceed on the basis whether the facts taken at their face value disclose the commission of any crime or not. The Court also cannot act as the Post Office or mouthpiece of the prosecution. There was no violation of the provisions of Section 42 of the ND&PS Act. The Court also cannot act as the Post Office or mouthpiece of the prosecution. There was no violation of the provisions of Section 42 of the ND&PS Act. HC Sameer Kumar was competent to carry out the investigation. The recovery was effected from the vehicle, which was being occupied by all the accused and they were in possession of the contraband. Hence, the application was rejected and the charge was framed. 5. Being aggrieved from the order passed by the learned Trial Court, the present revision has been filed asserting that the petitioners No.1 to 4 are Engineering Graduates in private service. Petitioner No.5 is an Advocate and petitioner No.6 is a businessman. The search and seizure were made at night after sunset. There was a clear violation of Section 42 of the ND&PS Act. No grounds of belief were recorded as to why a search warrant or authorization could not be obtained. The search in violation of Section 42 will vitiate the whole proceedings. The Government Order No. 171002 dated 18.8.1987 is contrary to the provisions of the ND&PS Act as it supersedes the provisions of Section 42 of the ND&PS Act. The law laid down in the case of Sanjay Kumar vs. State of H.P. is not a good law. Sub Inspector is competent to carry out the investigation under the Punjab Excise Act, 1914 and Head Constable is not competent to carry out any investigation. The Head Constable and Constable can only assist the Non-Gazetted Officer Grade-I. No rules were framed by the State Government and the authorities prescribed under the Central Act can carry out the investigation. The search and seizure have to be carried out by an Officer above the rank of the Constable. The Allahabad High Court also held that the Inspector is the authorized officer for enforcement of the ND&PS Act. Therefore, it was prayed that the present revision be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. Deepak Kaushal, learned Senior Counsel assisted by Mr. Aditya Chauhan, learned counsel for the petitioners and Mr. Jitender Sharma, learned Additional Advocate General for the respondent- State. 7. Mr. Therefore, it was prayed that the present revision be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. Deepak Kaushal, learned Senior Counsel assisted by Mr. Aditya Chauhan, learned counsel for the petitioners and Mr. Jitender Sharma, learned Additional Advocate General for the respondent- State. 7. Mr. Deepak Kaushal, learned Senior Counsel for the petitioners submitted that in the present case, the investigation was conducted by a Head Constable who is not an authorized officer, therefore, there is a violation of Section 42 of the ND&PS Act which is fatal to the prosecution case. He relied upon the judgments of Hon’ble Supreme Court in Roy V.D. v. State of Kerala, (2000) 8 SCC 590 , Boota Singh v. State of Haryana, 2021 SCC OnLine SC 324, Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655 and Rajasthan v. Jagraj Singh, (2016) 11 SCC 687 in support of his submission. 8. Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the matter is concluded by the judgment of this Court in Sanjay Kumar vs. State of H.P. 2020 (4) ShimLC 2278 . Hence, the plea that the Head Constable is not an empowered officer is not acceptable. There was no violation of Section 42 of the ND& PS Act. Therefore, he prayed that the present petition be dismissed. 9. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 10. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 that the Court has to look into the material placed before it at the time of framing of charge. It was observed: “7. It is trite law that the application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of charge sheet material. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that the accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. 9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr. P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O. 10. P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O. 10. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held: “29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, the probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini-trial at this stage.” 11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of the existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.” 11. It was submitted that the Head Constable is not empowered to carry out the investigation. The reference was made to the various provisions of the ND&PS Act and the HP Police Act. This question is no longer res-integra. It was submitted that the Head Constable is not empowered to carry out the investigation. The reference was made to the various provisions of the ND&PS Act and the HP Police Act. This question is no longer res-integra. It was laid down by a Division Bench of this Court in Gulam Rasool Vs. State of H.P. 2002 (1) Shim.LC 189 that as per the notification issued by the State Government in exercise of the power under Section 41(2) of the ND& PS Act, a Head Constable is authorized to carry out an investigation. SPEAKING through Hon’ble Mr. Justice Lokeshwar Singh Panta, J. (as His Lordship then was) the Court observed as under:- 10. Lastly, the learned Counsel for the accused has argued that the investigation was conducted by PW-7 who is not an empowered officer under the NDPS Act. The contention raised deserves to be rejected in view of the fact that the State Government has issued a notification in exercise of the powers conferred by sub-section (2) of Section 41 of the Act empowering the officers of gazetted rank who have been appointed under Section 7 of the said Act and who are working in the executive field in the departments of Revenue, Excise and Taxation and police of the Government of Himachal Pradesh to exercise the powers specified in sub-section (2) of Section 41 of the Act, within the area of their respective jurisdiction. PW-7 Head Constable Satpal was, therefore, an authorized officer to investigate the present case. The defence of the accused in his statement under Section 313 Cr.P.C. was not found plausible and sustainable as he has failed to point out any reason that the prosecution witnesses examined in this case have falsely implicated him in the commission of the crime. Thus, in our considered view, we do not find any fact in this case as also recorded by the trial Court that there has been any violation of Section 42 or Section 50 of the Act. The trial Court has appraised and scrutinized the entire evidence on record and came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and in our view the conviction of the accused has been rightly recorded. 12. This judgment is binding upon this Court. 13. The trial Court has appraised and scrutinized the entire evidence on record and came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and in our view the conviction of the accused has been rightly recorded. 12. This judgment is binding upon this Court. 13. The question was also considered by a Single Bench of this Court in Sanjay Kumar (supra) and after discussing the provisions of Section 42 and various judgments, this Court held that a Head Constable is empowered to carry out the investigation. It was observed:- 5(ii)(d) Bare provisions of Section 42 make it clear that only an officer above the rank of peon, Sepoy or Constable of the police department can carry out a search in terms of Section 42 of the NDPS Act. The Head Constable is superior in rank to a Constable and has not been barred under the Act from carrying out the search. A division Bench of this Court in titled Raj Kumar v. State of Himachal Pradesh, (2001) 1 ShimLC 150 while dealing with the plea of the accused therein that ASI who effected search was not empowered under Section 42 of the Act held that it is only in case of an officer belonging to 'any other department of a state government' that a general or special order by the state government is necessary for empowering them under Section 42 of the Act and not otherwise. Relevant para from the judgment are produced hereinafter:- "12. Placing emphasis and reliance on the words "as is empowered in this behalf by general or special order of the State Government," the learned Counsel for the accused has contended that there is nothing on the record to show that PW 13, ASI PushapLata, who had carried out the search, was duly empowered under Section 42 of the Act. Therefore, since the search was carried out by an officer who has not been duly empowered, such a search would be an illegal search and cannot be pressed into service against the accused. 13. We do not find force in the contention raised by the learned Counsel for the accused that PW 13 ASI Pushap Lata was not empowered under Section 42 of the Act. 13. We do not find force in the contention raised by the learned Counsel for the accused that PW 13 ASI Pushap Lata was not empowered under Section 42 of the Act. A bare reading of the section shows that all such officers superior in rank to a peon, sepoy or constable belonging to the revenue, drugs control, excise and police are empowered under Section 42 of the Act by virtue of their office. It is only in the case of an officer belonging to "any other department of a State Government" that a general or special order by the State Government is required empowering them under Section 42 of the Act. The word "or" appearing after the word "police" and before the words "any other department of a State Government" has to be read disjunctively in order to give effect to the manifest intention of the Legislature. So reading, it is evident that the words "as is empowered in this behalf by general or special order of the State Government" are to be read only with the words "any other department of a State Government". Therefore, PW 13 ASI Pushap Lata being a police officer superior in rank to a constable, is an officer duly empowered under Section 42 of the Act." 5(ii)(e) Learned Additional Advocate General has placed on record various notifications/instructions which reveal that a notification dated 18.08.1987 was issued whereby powers were given to Excise Officers under Section 42(1) and Section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Vide another notification of 18. 8.1987 issued in exercise of powers conferred under Section 7(1) of the NDPS Act, all officers appointed under the Punjab Excise Act, 1914 as applied to Himachal Pradesh have been appointed with their respective designations, classes & jurisdiction for the purposes of NDPS Act as well. Vide yet another notification of 18.8.1987 issued in exercise of powers under Sections 42(1) and 67 of NDPS Act, Excise Officers appointed under Punjab Excise Act and exercising powers under Sections 10 & 11 of the Act as group 'A' and group 'B' officers, were authorized to exercise powers and duties under Sections 42 & 67 of the Act. Further as per Govt. Further as per Govt. of Himachal Pradesh Excise & Taxation Department Notification No. 1-17/64=E&T dated 7th August 1965, the Himachal Pradesh (Excise Powers and Appeal) orders, recognize the following categories of officers as Excise Officers under Section 10 and Section 11 of the Punjab Excise Act 1914 as applicable to Himachal Pradesh, the relevant portion of which is reproduced as below:- "5. Under section 10 of the said Punjab Excise Act, as applied to Himachal Pradesh, there shall be three classes of Excise Officers, to the designated Ist Class, 2nd Class and 3rd Class, respectively, and the persons mentioned in groups 'A' 'B' and 'C' below shall be respectively Excise officers of the Ist, 2nd and 3rd Class. Group 'A' (1) All Assistant Collectors of Ist Grade. (2) The Asstt. Excise & Taxation Commissioner. (3) All Excise and Taxation Officers. (4) All Tehsildars. (5) All Excise & Taxation Inspectors. (6) All Naib-Tehsildars. (7) All Excise & Taxation Sub-Inspectors. Group 'B' Excise Officers of the Second Class. All Excise and Taxation Sub-Inspectors (leave reserve) Group 'C' Excise Officers of the Third Class.- (1) All Head Clerks and Clerks attached to the offices of the Excise & Taxation Officers of the Districts. (2) All Excise Chaprasis and Peons. 14. Therefore, the submission that the Head Constable is not an authorized officer to carry out the investigation and that the whole investigation carried out by him is vitiated is not acceptable. 15. It was submitted that the judgment of this Court in Sanjay Kumar (supra) does not lay down the correct law; however, this submission is not acceptable. The Court had considered the provisions of the Punjab Excise Act, ND & PS Act and the notification elaborately and there is no infirmity in the same. 16. The case of the prosecution clearly shows that the police were on Nakabandi duty. There is nothing on record to show at this stage, that the police had prior information regarding the transportation of the contraband. It was laid down by the Full Bench of this Court in State of H.P. Vidya Devi 1993 (2) ShimLC (6) that in case of a chance recovery, there is no requirement to comply with the provisions of Section 42 of the ND&PS Act. It was observed:- 17. It was laid down by the Full Bench of this Court in State of H.P. Vidya Devi 1993 (2) ShimLC (6) that in case of a chance recovery, there is no requirement to comply with the provisions of Section 42 of the ND&PS Act. It was observed:- 17. After giving our careful consideration to the problem posed before us, we are of the considered opinion that in chance recovery compliance with Sections 41, 42 and 50 of the Act may not be possible, however, in order to succeed on this plea, the prosecution will have to satisfy the conscious of the Court that in the facts and circumstances of the case, it could not comply with the requirements of these provisions and that by the non-compliance thereof, no prejudice or miscarriage of justice was caused to the accused. Then, the burden would shift over to the accused to prove prejudice caused to him. Thereafter, the investigation should be immediately handed over to the authorised officer and if circumstances justify, the accused could be detained till the arrival of the competent officers. Thereafter, the investigation has to be carried out in accordance with the provisions of the Act and the accused punished in accordance with the provisions of the Act if found guilty. The provisions of the Act like Sections 52, 52-A, 55, 57, 58, 61, 62 etc. are still applicable and have to be followed while conducting the investigation. 18. In view of the aforesaid discussion, the opinion of the Division Bench in Sudarshan Kumar's case (1989 Cri LJ 1412) (Him Pra) that in a chance recovery where there is no compliance of Section 41 and 42 of the Act, the matter can be investigated under the provisions of the Code is, with respect, wrong and is, therefore, over-ruled to this extent. 17. A similar view was taken in Hamidbhai Azambhai Malik v. State of Gujarat, (2009) 3 SCC 403 , wherein it was observed:- 12. Coming to the factual background it has to be noted as follows: The search was made by the raiding party at about 4.30 p.m. on 15-12-1995. Section 42 will be invocable only if the search is made by the police officer or the authority concerned, upon the prior information. Coming to the factual background it has to be noted as follows: The search was made by the raiding party at about 4.30 p.m. on 15-12-1995. Section 42 will be invocable only if the search is made by the police officer or the authority concerned, upon the prior information. If such a person has reason to believe from personal knowledge or information given by any person and is obliged to take down in writing as such the information about the accused having possessed of and dealing with a contraband article like “charas” came to be appraised of by PSI concerned Mr K.D. Pandya, LCB Branch of Bharuch Police Station, in the course of his investigation of an offence, registered vide CR No. II-135 of 1995. Therefore, it is a settled proposition of law when such information or intimation or knowledge comes to the notice of the investigating officer in the course of the regular patrolling or an investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated in Section 42. 18. Similar is the judgment in Kallu Khan v. State of Rajasthan, 2021 SCC OnLine SC 1223, wherein it was observed:- 11. After hearing and on perusal of the record and the evidence brought, it is apparent that on apprehending the accused, while making a search of the motorcycle, 900 gm of smack was seized to which seizure and sample memos were prepared, as proved by the departmental witnesses. In the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from the public road, the provisions of Section 43 of the NDPS Act would apply. In this regard, the guidance may be taken from the judgments of this Court in S. K. Raju (supra) and S.K. Sakkar (supra). However, the recovery made by Pranveer Singh (PW6) cannot be doubted in the facts of this case. 19. This position was reiterated in Jagat Singh vs. State of H.P. 2023 STPL 10148 HP wherein it was observed: 63. We have gone through the entire record and find no material placed on record so as to infer that there was any prior information rather the case is clearly one of chance recovery. 19. This position was reiterated in Jagat Singh vs. State of H.P. 2023 STPL 10148 HP wherein it was observed: 63. We have gone through the entire record and find no material placed on record so as to infer that there was any prior information rather the case is clearly one of chance recovery. Thus ameliorating the requirement to comply with Section 42 of the Act, as held by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and also in Ram Kumar vs. Central Bureau of Narcotics(2008) (5) SCC 385. 20. Hence, the plea that there was a violation of Section 42 of the ND&PS Act due to which the charge could not have been framed is not acceptable. 21. All the accused were travelling in one vehicle. They knew each other. Learned Trial Court had rightly held that in such circumstances, the inference of joint possession could be drawn. In Madan Lal Versus State of H.P. (2003) 7 SCC 465 a car was searched by the police and Charas was recovered from a bag kept in the car. It was contended that all the occupants of the car could not be said to be in possession. Repelling this contention, it was held by the Hon'ble Supreme Court that all the persons travelling in the same vehicle would be in possession and the burden would be upon the person who asserts that he was not in possession to prove it. It was observed: 20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to the offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be conscious possession. 22. 21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to the offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be conscious possession. 22. It is highlighted that unless the possession was coupled with a requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 23. The expression `possession' is a polymorphous term, which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. ( AIR 1980 SC 52 ), to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. 24. The word `conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 25. As noted in Gunwantlal v. The State of M.P. ( AIR 1972 SC 1756 ) possession in a given case need not be physical possession but can be constructive, having power and control over the article in a case in question, while the person whom physical possession is given holds it subject to that power. 26. The word `possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976(1) All ER 844 (QBD). 27. Once possession is established the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 28. In the factual scenario of the present case not only possession but conscious possession has been established. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 28. In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. 29. In fact the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they are doing. The accused-appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle. The logic applicable to other accused-appellants also applies to Manjit Singh. 22. In the present case, no material is brought on record to rebut the presumption. Therefore, the plea that the petitioners were not in possession of the Charas cannot be accepted. 23. In Roy V.D. v. State of Kerala (supra), the Hon’ble Supreme Court held that the provisions of Section 42 of the ND&PS Act are mandatory and any search conducted in violation of Section 42 will vitiate the trial. In the present case, it has been found that the search was conducted by an authorized officer and it was a case of chance recovery. Therefore, there is no violation and this judgment does not apply to the present case. In Boota Singh (supra) the Hon’ble Supreme Court held that in case of a search of a private car, the provisions of Section 42 will apply. The Hon’ble Supreme Court held to the contrary in Kallu Khan (supra) noticed above. 24. In the present case, there was a chance recovery and the search was effected by an authorized officer, there was no violation and this judgment will also not apply. In Mohinder Kumar (supra) the Hon’ble Supreme Court held that when the officer has reasons to believe, the requirement of Section 42 is mandatory. In the present case, there was no reason to believe. Hence, this judgment also does not apply to the present case. In Jagraj Singh (supra) the Hon’ble Supreme Court held that a private vehicle will not fall within the definition of a Public Transport Vehicle. In the present case, there was no reason to believe. Hence, this judgment also does not apply to the present case. In Jagraj Singh (supra) the Hon’ble Supreme Court held that a private vehicle will not fall within the definition of a Public Transport Vehicle. This judgment as noticed above will also not assist the petitioner. Thus, no advantage can be derived from the cited judgment of the petitioner. 25. It was laid down by the Hon’ble Supreme Court in Dilipsinh (supra) that the revisional court does not sit in appeal over the order sought to be revised and only examines the legality or regularity of the procedure. It was observed: 13. The power and jurisdiction of the Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC.” 14. This Court in the aforesaid judgment has also laid down principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr. P.C. is sought for as under: “27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for the proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit the continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding admissibility and reliability of the documents or records but is an opinion formed prima facie.” 15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.” 26. There is no infirmity in the order passed by the learned Trial Court and no interference is required with the same. Hence, the present petition fails and the same is dismissed. 27. The petitioners through their respective counsel are directed to appear before the learned Trial Court on 27.02.2024. 28. There is no infirmity in the order passed by the learned Trial Court and no interference is required with the same. Hence, the present petition fails and the same is dismissed. 27. The petitioners through their respective counsel are directed to appear before the learned Trial Court on 27.02.2024. 28. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.