Mahesh Ram vs State of Jharkhand And Ors

The instant criminal revision application has been preferred against the order dated 23.04.2019 whereby the petitioner's application under Section 227 Cr. P.C., for discharge has been rejected by the Sessions Judge-cum-Special Judge (NDPS), Chatra, in Tandwa P.S. Case No. 22 of 2018/NDPS Case No. 36 of 2018.

Learned senior counsel has submitted that the aforesaid case has been instituted under Sections 384, 386, 387 and 120 B of the Indian Penal Code and Section 17(i)(ii) CLA Act and Sections 16,17, 20 and 23 of Unlawful Activities Prevention Act and Section 20(b) of the NDPS Act. It is argued by the learned counsel that Section 45, of the Unlawful Activities Prevention Act, prescribes that previous sanction is required for taking cognizance of the offences under Sections 16, 17, 20 and 23. It is submitted that it would be evident that no sanction has ever been granted by the State Government, in terms of Section 45(i) (ii).

It is submitted that the court below has not appreciated the materials on record and erred in recording the finding that 'Ganja' was recovered from this petitioner whereas there is no evidence on record regarding recovery of 'Ganja' from the conscious possession of this petitioner.

In fact, the petitioner has been made an accused on the confessional statement of co-accused and on the confession of the petitioner recorded by the police after his arrest.

To buttress the argument reliance has been placed on the decision of the Supreme Court in State of Uttar Pradesh Vs. Deoman Upadhyaya; A.I.R. 1960 SC 1125. It is canvassed that the confessional statement of the accused recorded in the police custody cannot be received against him in any proceeding in which he is charged with the commission of an offence.

It is argued that there is no material to show that the petitioner was involved in extortion or had realized or received levy money. The petitioner is involved in transportation business.

It is submitted that in fact the court below has not applied its judicial mind to the materials on record neither has sifted or weighed the materials on record or the limited purpose, to satisfy itself that a prima facie case is made against the petitioner.

Learned A.P.P prays for time to procure the case diary and file the counter-affidavit.

Heard. Evidently a question of law has been raised which involved in the present case. In the attending circumstances if the charge has not been framed against the petitioner, further proceeding in connection with NDPS Case No. 26 of 2018 in the court of Session Judge-cum-Special Judge)NDPS), Chatra, shall remain stayed, till further orders. However, the court below shall proceed with the trial as against other accused persons.

On the prayer of the learned A.P.P., office to list this case on 27th September, 2019.