Bhagraj Tulsaji Visnoi vs State of Gujarat

J.R. Vora, J.—This Revision Application is filed against an order passed by the Learned Additional Sessions Judge, Banashkantha at Deesa

on 18th of November, 2002 in Special Case No.89/2001 directing to arraign present petitioner Bhagraj Tulsaji as an accused along with other

accused, i.e. opponent No.2 in this Revision Application, who is facing trial for offences punishable u/s 17 of the Narcotic Drugs and Psychotropic

Substance Act, 1985.

2 Necessary facts reveals that on 31st December, 2000, Mr.B.J.Patel, Police Sub Inspector, Dhanera Police Station, received information that

opponent No.2 herein Kisnaram Ruparam Visnoi resident of village-Gundan, Taluka-Sanchod, District-Zalor, Rajasthan State on a motorcycle

registered in the State of Rajasthan trafficking narcotic drugs and on that day Kisnaram Ruparam Visnoi, according to information received was to

travel towards Deesa from Rajasthan. On receiving this information, along with other police constables, Mr.B.J.Patel, Police Sub Inspector came

to Dhanera-Deesa Road and called for two panchas from the bus stand of village-Saamarvada. When this party was on watch, present opponent

No.2 Kisnaram Ruparam Visnoi was seen from Dhanera and, therefore, an attempt was made to stop him by raising a hand but on seeing the

police staff, opponent No.2 parked his motor cycle at some distance from this police party and after alighting from the motorcycle ran way, who

had worn a shirt and dhoti. Opponent No.2 at that spot could not be apprehended by the police in the presence of panchas. Motorcycle was

seized and searched and was found that motor cycle was of Suzuki Max 100 made, registration number of which was RJ-16 1M-2368. On the

right side of this motor cycle there was a small compartment used ordinarily as dicci or a trunk. On opening the said trunk in the presence of

panchas a plastic bag was found containing two pieces of black substance. On verification, the said pieces of black substance was found opium,

which was weighed and found to be of 1100 grams. Thereafter, complaint in this respect came to be filed in the Police Station at Dhanera against

Kisnaram Ruparam Visnoi, opponent No.2 at 20:15 hours. The incident took place at 19:15 hours. A complaint against opponent No.2 came to

be filed u/s 17 of Narcotic Drugs and Psychotropic Substances Act. After investigation a chargesheet came to be filed against present opponent

No.2, Kisnaram Ruparam Visnoi. It is pertinent to note that after the arrest of the accused during investigation on 20th May, 2001 vide

Panchnama Exh.24, the accused Kisnram Ruparam Visnoi handed over the registration book of the motor cycle involved in the incident and his

driving license, to the investigating agency. The driving license belonged to opponent No.2 Kisnaram Ruparam Visnoi, while as per the registration

book of the motor cycle seized, the owner of the motor cycle was one Tagaram Bhaktaram. During investigation Investigating Officer has also

collected evidence to the extent that the said motor cycle used for the commission of the crime by opponent No.2 though belonged to Tagaram

Bhaktaram as per the Registration Book, but the same was sold by Tagaram Bhaktaram to the present petitioner Bhagraj Tulsaji for Rs.32,000/-

before two and a half months from the date of his deposition in the trial. It was also a prosecution case during investigation that Bhagraj Tulsaji, the

present petitioner had sold this motor cycle to opponent No.2-accused, Kisnaram Ruparam Visnoi. The investigating officer recorded the

statements of Bhagraj Tulsaji, as well as of Tagaram Bhaktaram both.

3 On submitting the chargesheet before the Special and Additional Sessions Judge, Banaskantha at Deesa, a charge was framed originally vide

Exh.6 against opponent No.2, Kisnamram Ruparam Visnoi for the offences punishable u/s 17 of Narcotic Drugs & Psychotropic Substances Act.

The prosecution examined uptill now, 15 witnesses and the evidence of 15th witness, Mafatbhai Chelabhai, was incomplete because he did not

bring the required Muddamal register. In these 15 witnesses, except complainant and investigating officer Mr.B.J.Patel all the witnesses were

examined by learned Trial Judge.

4 While the evidence of present petitioner was being recorded as P.W.14, the prosecution asked permission of the Court to contradict the witness

with his statement. The evidence of petitioner recorded reveals that the motor cycle bearing No.RJ-16 1M-2368 was purchased by him, but

transfer entries were not caused in the registration book and the registration book contained name of Tagaram Bhaktaram, who was examined as

PW 13. Now to that extent, it appears that his evidence was not challenged by the prosecution. But thereafter, when he stated that the said motor

cycle was not sold by him to the present opponent No.2 Kisnaram Ruparam Visnoi and differing from his statement before police deposed that the

motor cycle was taken by his friend Jayram and he denied that he sold the said motor cycle to anyone. The prosecution asked permission to cross

examine him. This is so because in the police statement, he stated that he sold the motor cycle to opponent No.2, while in deposition before the

Court he stated that he had not sold the motor cycle to opponent No.2 but motor cycle had been taken by his friend Jayram. After his evidence

was over, i.e. petitioner''s evidence was over as prosecution witness No.14, the learned trial Judge recorded an order impugned in this revision,

that after hearing learned advocate for the present petitioner and learned APP observing that the petitioner in police statement stated that he had

sold his motorcycle to opponent No.2, who was his cousin brother while in his deposition at Exh.40 has changed the version and stated that the

said motor cycle was taken by his friend Jayrambhai. The learned trial judge also observed that the said witness-the present petitioner did not state

in his deposition that he did not know that the motor cycle was used for trafficking narcotic drugs nor any details in respect of Jayrambhai was

given by the present petitioner in his deposition. The learned Judge also observed that the witness, i.e. the present petitioner did not made any

attempt to retrieve the motor cycle nor any complaint was filed by him before police that the motor cycle was lost and through this observations the

learned trial judge came to the conclusion that there was prima facie evidence against present petitioner to arraign him as an accused in this trial and

the trial was required to be proceeded against him along with opponent No.2. The learned judge obviously exercised power u/s 319 of the

Criminal Procedure Code and on the same day, i.e. on 18th of November 2002, the present petitioner was detained and was taken into custody

as per Section 319(3) of the Criminal Procedure Code.

5 Being aggrieved and dissatisfied with the abovesaid order, P.W.14, Bhagraj Tulsaji has preferred this Revision Application. Till final disposal of

revision application vide order of this Court recorded on 6th June 2003, the present petitioner was released on bail on certain conditions.

6 Learned advocate Mr.D.K.Acharya on behalf of the applicant and learned APP, Mr.Pandya for the State of Gujarat-opponent No.1 and

learned advocate Mr.Vyas for opponent No.2-original accused, Kisnaram Ruparam Visnoi were heard.

7 The learned advocate for the applicant relying upon a decision of Honourable Supreme Court in the matter of Michael Machado Vs. Central

Bureau of Investigation as reported in AIR 2000, Supreme Court, page 1127 and a decision of the High Court of Kerala in the matter of Paulose

and Others Vs. State of Kerala, , vehemently argued that there is no evidence at all against present petitioner to invoke powers of the Court u/s

319(1) of the Criminal Procedure Code. Referring to the facts of the case, it was stated that only because the present petitioner in his deposition

stated that the motor cycle used in commission of crime was given to one Jayram, his friend, he would not be liable to be arraigned as an accused

with the aid of Section 29 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1995. The fact, that before police, he stated that the

said motor cycle sold by him to original accused-opponent No.2 herein and only because he changed his version and said that he had given the

said motor cycle to his friend Jayrambhai, by no stretch of reasoning, would exposed him to the circumstances, which would compel the Court to

arraign the present petitioner as an accused in the trial along with the opponent No.2 for the charge u/s 25 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. It was stated that the registration book of the motor cycle is found from the opponent No.2. There is no iota

of evidence to indicate even suspicion that the present petitioner is involved in the crime of very serious nature, only on account of a statement

before the Court that he had given his motor cycle to his friend Jayram. It was also submitted that in the impugned order, the learned trial Judge has

recorded that the present petitioner has omitted to depose that he did not know that the motor cycle was used for trafficking narcotic substance. It

was urged that learned Judge also recorded in the order impugned that the present petitioner in his deposition did not uttered details in respect of

Jayrambhai Raichandbhai. The learned Judge has also observed in his order that neither the present petitioner lodged any complaint in respected of

motor cycle nor did he claimed the motorcycle during the trial as well. It was, therefore, urged that this is not the evidence as per the law to involve

the petitioner in the said crime by invocation of Section 319(1) of the Criminal Procedure Code. It was urged that it was for the prosecution to

point out positive evidence to the extent that by said evidence, conviction of the petitioner was probable and only under those circumstances, the

Court would have exercised power u/s 319(1) of the Criminal Procedure Code. It was urged that, therefore, the order passed arraigning the

present petitioner as an accused and framing charge consequently is based on no material at all and the same is required to be set aside.

8 Learned APP, Mr.Pandya on behalf of the State was heard.

9 After going through the record carefully and evaluating the submissions made, it is necessary to refer to Sections 25 and 29 of the Narcotic

Drugs and Psychotropic Substances Act, 1985.

By virtue of Section 25, whoever being the owner or occupier or having control or use of any house, room, enclosure, space, place, animal or

conveyance, knowingly permits it to be used for commission by any other person for an offence punishable under any provision of the Narcotic

Drugs & Psychotropic Substances Act shall be punishable with rigorous imprisonment, which may extend to ten years to 20 years and fine of Rs.1

lac. While by virtue of Section 29, abetment in criminal conspiracy in committing crime under Narcotic Drugs & Psychotropic Substances Act,

1985 is made punishable by the same sentence provided for the commission of such offence.

10 From the above, it is clear that the essential requisite for the constitution of offence u/s 25 of the Act is that the owner of a vehicle or the person

having control of a vehicle has knowingly permitted it to be used for commission of any offences punishable under the Act. What is required to be

proved is ""knowingly permitted it to be used"". Mere use of vehicle for transporting contraband material by any other person would not fasten any

liability on the owner of a vehicle. Likewise, to fasten the liability u/s 29 of the said Act the prosecution must prove that (i) there was abetment (ii)

there was conspiracy denoting that there was meeting of mind between owner and the other accused and common object and in pursuance of that

common object an agreement took place to commit a crime and (iii) some overt act was done in furtherance of such agreement.

11 When above elements are present in the form of evidence, liability u/s 25 and/or Section 29 of Narcotic Drugs & Psychotropic Substances

Act, 1985 can be fastened on any person. The evidence means, the evidence in shape of police papers, as well as evidence recorded before the

Court during trial.

12 With this reference when Section 319 of the Code of Criminal Procedure is referred, it is clear that whether in the course of inquiry into or trial

of an offence it appears from the evidence that any person not being accused has committed any offence for which such person could be tried

together with the accused, the Court may proceed against such person for the offence, which he appears to have committed. Subsection (2) (3)

and (4) of Section 319 provides for the arrest of such person and the retrial of such person along with the original accused right from the framing of

the charge. The material phrase used u/s 319 above is ""it appears from the evidence"". Therefore, to invoke the powers u/s 319, the first requisite is

the existence of evidence to arraign any person as an accused in an inquiry or trial. The meaning of ""it appears"" necessarily suggests that it is not

enough that the Court entertain some doubt from the evidence about the involvement of another person in the offence. The Court must have

reasonable satisfaction from the evidence already collected regarding two aspects, first that the other person has committed an offence and second

that for such offence that other person could as well be tried along with already arraigned accused. Therefore, in para 13 of the decision cited by

learned advocate for the applicant in the matter of Michael Machado Vs. Central Bureau of Investigation, the Apex Court has held as under:

In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, this Court has struck a note of caution, while considering whether

prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not

arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other

accused. This was how learned Judges then cautioned :

But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only

if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.""

13 Reverting back to the facts of the case, it is very difficult to believe that merely by stating in deposition by the present petitioner that he had

given his motor cycle to his friend Jayram or merely stating that he had sold this motor cycle to the present opponent No.2, one can infer that the

petitioner knowingly permitted his motor cycle to be used by opponent No.2 for the commission of offence for which the opponent No.2 is tried.

Nor can anyone even infer from the above fact that there was abetment on the part of the present petitioner or meeting of mind to the extent of

agreement and for the commission of offence for which the present opponent No.2 is being tried. Admittedly, there is no material at all either in the

shape of evidence or otherwise to denote that the present petitioner knowingly permitted present opponent No.2 to use his motor cycle for the

commission of offence. Nor such iota of evidence or any material could be found by the police during investigation nor during trial any material

came on the record to even suspect that there was abetment on the part of the present petitioner and opponent No.2 to the extent of conspiracy in

the terms as aforesaid. There is no nexus at all between the culpable state as envisaged by Section 25 and 29 of the Narcotic Drugs &

Psychotropic Substances Act, 1985 and the say of the petitioner that he had given his motor cycle either to his friend, Jayram or that he had sold

his motor cycle to the present opponent No.2. Unless a pointer indicates to such culpability to the extent of grave suspicion, the powers u/s 319,

which are extraordinary in the nature cannot be exercised. The powers u/s 319 are extremely limited by restrictions. In the present facts of the

case, let alone suspicion or grave suspicion, there is no nexus between the circumstances as narrated by the trial Judge and the culpability on the

part of the petitioner as envisaged by Sections 25 and 29. It is pertinent to note that what is required for arraigning any third person in a trial by

invocation of Section 319(1) of the Criminal Procedure Code as viewed by the Supreme Court is as under in para 16 of the abovesaid decision of

Michael Machado Vs. Central Bureau of Investigation (supra). ""The statements of those three witnesses were placed before us. No doubt the

statements may create some suspicion against the appellants. But suspicion is not sufficient to hold that there is reasonable prospect of convicting

the appellants of the offence of criminal conspiracy.

14 In the present case, on scrutiny of the record it is found that there is not even a suspicion either from the prosecution case or from the evidence

as recorded before the Trial Court as to involvement of the present petitioner in the abvoesaid crime.

15 As to the observation made by the learned trial Judge in respect of the statement not being made by the present petitioner as to whether he

knew or did not know the commission of crime by his motor cycle and, therefore, petitioner was required to be tried cannot be sustained because

firstly it is for the prosecution to bring such case and secondly there must be some positive evidence pointing at circumstances, which may lead to

probable conviction of the person sought to be arraigned as an accused. A witness is protected by Section 132 of the Evidence Act to state

anything which would incriminate him in any trial. It cannot be expected from a witness that he should depose before the Court that he was not

involved in the crime and omission to do that by no stretch of logic and by virtue of Section 132 of the Evidence Act would tend any Court to

arraign a witness as an accused to stand trial along with the original accused. The reasons given by the learned trial Judge that the witness did not

attempt to file a complaint about not finding of his motor cycle during trial cannot be sustained because none of these are the circumstances in the

shape of evidence referred to in Section 319(1) of the Criminal Procedure Code, by which it would appear to the Court that the present witness is

involved in the crime as narrated by the learned trial Judge in the order impugned. It must be noted that extraordinary powers given u/s 319(1) of

the Criminal Procedure Code is deviation of normal mode of taking cognizance. This cannot be used to punish prosecution witnesses, who turned

hostile. Evidence against him as an accused alone could be used against him, but he cannot be proceeded with in trial with other accused only

because of his deposition.

16 So far as the stage of trial is concerned, though as aforesaid on facts as well as under law the order impugned is required to be set aside, it is

pertinent to note that in the abvoesaid decision of Michael Machado Vs. Central Bureau of Investigation (supra), Honourable Supreme Court

observed that when trial was almost over, even there was some suspicion against the person sought to be arraigned as on accused, it would not be

permissible to start the trial afresh. In this case also almost all witnesses have been examined by the prosecution and now the investigating officer

alone is still to be examined and at that stage, the present petitioner by virtue of the order impugned came to be arraigned as an accused to stand

trial along with opponent No.2 afresh. In view of the decision of Supreme Court in Michael Machado Vs. Central Bureau of Investigation (supra),

this is also not permissible.

17 In above view of the matter, this Revision Application is allowed. The order passed by the learned Special Judge, i.e. Additional Sessions

Judge, Deesa on 18th of November, 2002 in Special Case No.89/2001 arraigning present petitioner as an accused in the said Special Case is set

aside and consequently the charge framed against the present petitioner below Exh.6 by the learned Special Judge on 22nd of November, 2002

u/s 25, 29 read with Section 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985 is also quashed and set aside. The learned Trial

Judge is directed to proceed with the trial from the stage the trial was stayed, as expeditiously as possible. The office is directed to transmit record

and proceedings of the trial Court immediately to the trial Court so as to enable learned Special Judge to proceed with the trial. Bail bonds of the

petitioner stands cancelled.