Mahendra Kaurav Alias Guddu vs State Of Madhya Pradesh

The applicant has filed this revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order

dated 12/04/2019 passed in Special Case No.07/2019 by Special Judge, NDPS Act, Narsinghpur whereby learned trial Court framed charge against

the applicant for the offence punishable under Section 8 and 21 (b) of the N.D.P.S. Act.

The facts giving rise to this petition, in short, are that the Police got information that applicant-Mahendra Kaurav alias Guddu and co-accused Jaan

Mohammad alias Jannu are carrying smack powder and they are coming back in motorcycle without exhibiting any registration number. Police

strategically stopped the motorcycle. Applicant -Mahendra Kaurav was driving the motorcycle and co-accused Jaan Mohammad alias Jannu was

sitting as a pillion rider. On seeing Police, applicant-Mahendra Kaurav tried to flee away from the spot, however, the Police party cordoned them and

stopped the motorcycle and narrated the applicant that Police was having an information that they are carrying smack powder in their possession,

therefore, their search is needed. They are having right whether they agreed to make search before any Gazetted Officer or Magistrate or by him,

then the applicant and co-accused Jaan Mohammad alias Jannu gave consent for search by Police Officer. On being searched, Police party did not

find any contraband article in possession of applicant-Mahendra Kaurav alias Guddu, but, pillion rider i.e. co-accused Jaan Mohammad alias Jannu

was found having one packet containing smack. On weighing this contraband article, it was 100 gm smack powder. Police party seized the

motorcycle, prepared Panchnama and reduced proceeding in writing.

The applicant along with co-accused Jaan Mohammad alias Jannu furnished information that they procured the smack powder from Nanuram

Tawar who is resident of Village Sarda, Police Station Bhalta, Distt. Jhalawad (Rajasthan). After returning to Police Station Kareli registered FIR at

Crime No.51/2019 against applicant and co-accused Jaan Mohammad alias Jannu for the offence punishable under Sections 8 and 21(b) of the

N.D.P.S. Act. After investigation, charge sheet came to be filed before the Special Court, Narsinghpur constituted under N.D.P.S. Act. Learned

Special Court after hearing both the parties framed charges under Sections 8 and 21(b) of the NDPS Act against the applicant as well as co-accused

Jaan Mohammad alias Jannu on the basis of joint possession of contraband article i.e. smack powder vide order dated 12/04/2019.

The applicant, being aggrieved by that framing of charge vide order dated 12/04/2019 has filed this criminal revision on the ground that learned trial

Court completely failed to consider the fact that no ingredient of Section 8 and 21(b) of the NDPS Act is made out against the applicant. Learned trial

Court framed the charge on the basis of joint possession of narcotic drugs (heroine) though during search no incriminating substance has been seized

from the possession of the applicant and it has been seized from the possession of co-accused Jaan Mohammad alias Jannu. When the applicant was

not having any contraband article, no ingredient of Sections 8 and 21(b) of the NDPS Act is made out. It is also submitted that learned trial Court has

erred in framing the charge against the applicant. The order is incorrect, illegal and also bad in law. The evidence collected during investigation is a

weak type of evidence not warranting the conviction of the applicant for the alleged charge, therefore, prays to quash the charge framed against the

applicant and discharge him of the charge.

Learned Panel Lawyer for the respondent/State submits that the applicant was having full knowledge that pillion rider i.e. co-accused Jaan

Mohammad alias Jannu is having narcotic drugs (heroine). 100 gm heroine i.e. Dy acitilia morphine, has been recovered from the joint possession of

both the accused including the applicant, having a commercial quantity of narcotic drugs. They were going to sell this narcotic drugs to the persons and

on seeing Police, the applicant who was driving motorcycle, tried to flee away. This fact also shows that he was in full knowledge that they are having

contraband article without any valid authority. If the applicant had no knowledge about the contraband article, certainly he would have stopped the

motorcycle instead of trying to flee away from the spot. There is prima facie ingredients of the offence found against the applicant. Police party

received the information in which the name of the applicant had been narrated by the informer stating that applicant is having joint possession of

contraband article with another co-accused Jaan Mohammad alias Jannu, therefore, prays for dismissal of the revision.

6, Having heard learned counsel for both the parties and perused the impugned order and all the documents filed along with charge sheet.

The applicant filed copy of whole charge sheet. After perusal of the documents and proceeding of the investigation, this fact prima facie emerges

out that the Police got information that the applicant and another co-accused Jaan Mohammad alias Jannu were carrying smack powder (heroine)

without having any authority and both were coming in the motorcycle to sell the same. On receiving information, Police party strategically gathered on

the spot and on seeing Police party, the applicant who was driving the motorcycle, at the time of incident, tried to flee away from the spot, but, Police

party surrounded the motorcycle and stopped the motorcycle. To search the applicants and co-accused Jaan Mohammad alias Jannu, their consent

was taken and on search of the applicant no contraband article was found in the possession of the applicant, however, 100 gm contraband article

(heroine) was found in possess of co-accused Jaan Mohammad alias Jannu and the Police on the basis of joint possession of the contraband article

proceeded for the investigation, registered Crime No.51/2019 for the offence punishable under Sections 8 and 21(b) of N.D.P.S. Act and after

investigation filed charge sheet against the applicant and co-accused Jaan Mohammad alias Jannu under Section 8 read with Sections 21 and 29 of

NDPS Act. It is also undisputed that learned trial Court vide order dated 12/04/2019 framed the charge against the applicant under Section 8 read with

Section 21(b) of NDPS Act on the basis of joint possession of the contraband articles along with co-accused Jaan Mohammad alias Jannu.

Learned senior counsel for the applicant submits that the applicant was not having any knowledge whether co-accused Jaan Mohammad alias

Jannu was having smack in his possession without any authority. He was simply going on motorcycle and asking for lift he permitted co-accused Jaan

Mohammad alias Jannu as a pillion rider.

Learned senior counsel for the applicant has placed reliance upon the decision of the Apex Court in the case of Bhugdomal Gangaram and others

Vs. State of Gujarat, AIR 1983 SC 906. In this case appellant convicted for the offence punishable under Section 65((e) and 81 of the Prohibition Act.

Learned senior counsel for the applicant submits that in that case informer was not examined. The testimony of the person who got information is not

admissible and also submits that in this case law, Hon’ble Apex Court categorically held that no amout of suspicion constitutes the legal evidence

for sustaining the conviction.

Learned senior counsel has also placed reliance upon the judgment of Hon’ble Apex Court in the case of Narcotics Control Bureau, Jodhpur

Vs. Murlidhar Soni and others, (2004) 5 SCC 151, and submits that in that case Hon’ble Apex Court categorically held that in absence of any

material showing conscious possession of the contraband by the accused, accused cannot be said to be in possession of any contraband. In this case

law father of the appellant was having a bundle of cloth. Narcotic Department on the basis of tip off searched the cloth bundle of the appellant after

completing all the legal formalities and found 2.41 kg heroine and on the basis of information provided by the father of the appellant also arraigned

three persons. After investigation charge sheet had been filed before the Sessions Court, Jodhpur in Sessions Case No.155/1994 and after completing

the trial convicted the appellant and his father for the offence punishable under Section 21 of the NDPS Act. In that case, Hon’ble Apex Court

after discussing the evidence produced before the trial Court found that the appellant was not having any knowledge that his father was having 2.41

kg. Heroine in the bundle of cloth and affirmed the acquittal of the appellant and held that the appellant was dropping his father by scooter to the place

where they were allegedly arrested. The appellant was not having any knowledge that his father was having contraband in the bundle. Learned senior

counsel for the appellant prays to set aside the charge framed against the applicant on the ground that he was not having knowledge that pillion rider

was having a contraband heroine.

Perused the statement of witnesses and the proceeding. Raiding party got information that the applicant and another person Jaan Mohammad

were jointly carrying heroine for selling to another person. After stopping the motorcycle and completing the formalities before search, raiding party

found that the applicant was driving motorcycle and Jaan Mohammad sitting as a pillion rider having 100 gm heroine without any valid license,

however, this evidence also goes to show that on seeing the Police the applicant who was driving the motorcycle was trying to flee away and raiding

party after surrounding him caught hold him.

Hon’ble Apex Court in the case of State of H.P. Vs. Pirthi Chand and another, (1996) 2 SCC 37 in para-7 has held as under :

“7. It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the

conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact

inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the

evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.â€​

For framing the charge, there should be a ground for presumption that another accused was involved in the crime or did crime. This ground

presuming existence of offence denotes that to what extent the evidence should be appreciated while framing the charge. For joint possession it is

sufficient that pillion rider was having a contraband with him. No doubt, the applicant was driving motorcycle put both hands on the handle, therefore,

it is natural that pillion rider would have possession of contraband. Whether, applicant having knowledge of possession of Jaan Mohammad, the

evidence is sufficient to presume that while seeing Police, the applicant tried to flee away from the spot. This fact, prima facie, shows that the

applicant was in well knowledge that pillion rider Jaan Mohammad was having contraband heroine and Police would make a search upon him and

would seize contraband from his possession. Whether the applicant provided only lift to Jaan Mohammad who was well known to him or he was going

for his personal work, he has not been involved in selling contraband to the persons. All these points should be decided after recording of evidence on

merit during trial. For framing charge, if there is some evidence available on record, it is sufficient to presume the offence.

Hon’ble Apex Court in the case of Mauvin Godinho Vs. State of Goa, 2018 CRI. L. J. 1717, in para-12 has held as under :

“12. At the outset it would be pertinent to note the law concerning the framing of charges and the standard which courts must apply while framing

charges. It is well settled that a court while framing charges under Section 227 of the Code of Criminal Procedure should apply the prima facie

standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to

be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce

the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought

to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of

the matter and weigh the evidence as if he was conducting a trial. [Refer Sajjan Kumar v. CBI (2010) 9 SCC 368 : (2011 AIR SCW 3730; )State v.

A. Arun Kumar, (2015) 2 SCC 417 : (2015 AIR SCW 146;) State by the Inspector of Police, Chennai V. S.Selvi and Ors. (2018) 1 Scale 5 : (AIR

2018 SC 81).]â€​

Hon’ble Apex Court in the case of State by Inspector of Police, Chennai Vs. S. Selvi and another, AIR 2018 SC 81 in para-8 has held as

under :

“8. In the matter on hand, the main allegation against the firsts respondent-accused No.2 as found in the charge-sheet is that while the complainant

along with the relevant documents proceeded to the residence of accused Nos. 1 and 2 at Door No. 28, West Gopalapuram, Chennai 86, to get back

his money due to him on 20.09.2011, at about 17:30 hours, accused Nos. 1 and 2 threatened the complainant, snatched away the documents from him,

denied him permission to enter into their house and threatened him with dire consequences if he entered into their house. It is relevant to note that in

the complaint dated 21.09.2011 it is stated that when the complainant went to West Gopalapuram and met accused for an enquiry about payment, the

accused got furious, beat him and with the help of four henchmen pushed him out of their house. On the basis of these discrepancies, contention of the

learned counsel for the accused that the case as made out by the prosecution cannot be believed inasmuch as the material on record is not consistent.

It may give rise to some suspicion but not grave suspicion, though appears to be attractive, but is not acceptable in view of entire material on record.

On going through the judgment of the High Court, we find that the High Court has virtually appreciated the entire material on record as if the High

Court is trying a criminal case. It would be difficult to lay down the rule of universal application as to how the prima facie case should be determined.

Though the Judge has got power to sift and weigh the evidence, such sifting and weighing evidence is for the limited purpose of finding out whether or

not a prima facie case against the accused has been made out for framing of charge. The test to determine a prima facie case would naturally depend

upon the facts of each case. At this preliminary stage, the High Court was not justified in concluding that the accused is entitled for discharge merely

on the ground of discrepancy in the timings of the incident. The question as to whether respondent No.1 was present on the place of incident or not

during the relevant point of time or she had been in Calcutta as sought to be argued before this Court is a matter of proof. Such fact needs to be gone

into by the trial Court after recording the evidence.

If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed offence, it can frame

charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing

of charges, the probative value of the material on record 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 conviction. The Court is required to evaluate the material on record at the stage of Section 227 or 239 of the Code, as the

case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients

constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the

presumption that material brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging

therefrom taken at their face value disclose existence of the ingredients of the offence.

(Emphesis supplied)

On the basis of of above enunciation of law as laid down by Hon’ble Apex Court in the aforesaid cases and on the basis of forgoing

discussions, this Court finds that there is sufficient material available on record for presuming the offence against the applicant.

Accordingly, the revision is dismissed without any order as to cost.