Sangam Pasi vs State of U.P.

K.N. Ojha, J.—Instant revision has been preferred against the order dated 6.7.2006, passed by learned Additional Sessions Judge/Fast Track Court No. 24, Allahabad, in S.T. No. 678 of 2001, State v. Sangam Pasi, police station Dhumanganj, Allahabad, whereby objection of the revisionist-accused against the charge, which was framed by the learned Additional Sessions Judge u/s 8/22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as N.D.P.S. Act) was rejected.

Heard Sri Deepak Dubey, learned Counsel for the accused-revisionist, learned A.G.A. and have gone through the record including the impugned order dated 6.7.2006.

According to prosecution when the police party was on patrol duty in the night on 1.10.2001 at 2.30 a.m. 5,000 diazepam tablets were recovered from the possession of the revisionist. After investigation charge-sheet was submitted and the learned Additional Sessions Judge/F.T.C. 24, Allahabad, framed charge u/s 8/22 of N.D.P.S. Act. The revisionist moved application 32C and placed reliance of Sections 215, 227, 228 and 228A of Cr. P.C., Sections 20 and 36AA of the N.D.P.S. Act that necessary contents of diazepam were not found in the alleged recovered tablets and quantity also does not exceed the minimum commercial quantity, therefore, the case be sent to the Chief Judicial Magistrate, Allahabad, for trial, and it should not proceed in the Sessions Court.

Section 22 of the N.D.P.S. Act provides punishment for contravention in respect of psychotropic substances. It provides that whoever in contravention of any provision of the Act or any rule or order made or condition of licence granted therein manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substances shall be punishable, where contravention involves small quantity with R.I. for a term, which may extend to six months or with fine, which may extend to Rs. 10,000 or with both, where contravention involves quantity lesser than commercial quantity but greater than small quantity with R.I. for a term, which may extend to 10 years and with fine, which may extend to Rs. one lac, where contravention involves commercial quantity with R.I. for a term, which shall not be less than 10 years, which may extend to 20 years and shall be liable to fine, which shall not be less than Rs. one lac but which may extend to Rs. two lacs provided that the Court may for reasons to be recorded in the judgment, impose a fine exceeding Rs. two lacs. The table given at the end of the Act shows that commercial quantity in the case of diazepam is 500 gm. and small quantity is 20 gm. Even though specific weight of each tablet of diazepam is not mentioned here but considering the number of diazepam tablets alleged to have been recovered the quantity cannot be less than small quantity, which is 20 gm. in the case of diazepam. Even if it be taken that weight of recovered diazepam tablets alleged to have been recovered will not exceed commercial quantity. Still in the case of quantity higher than small quantity 10 years imprisonment is provided, which cannot be imposed by the Chief Judicial Magistrate and therefore if the learned Additional Sessions Judge has observed that considering the number of diazepam tablets it is not a fit case, which be sent to the Chief Judicial Magistrate to proceed with the trial, it does not suffer from any illegality. The schedule provided at the end of the N.D.P.S. Act shows that the contents of diazepam, includes Chloro or dihydro or methyl or phenyl or benzodiazepin. Even though the chemical report, which was submitted by the chemical examiner, does not contain the detailed description of different contents, which were found in diazepam tablet, but the report, which was sent by the Joint Director, Scientific Laboratory, Lucknow, to the prosecution shows that diazepam was found in the tablets, which were sent as sample.

The learned Additional Sessions Judge has observed in the impugned order that these points may be raised at the final arguments but at the stage of charge only prima facie consideration is to be made u/s 228, Cr. P.C.

Learned A.G.A. has submitted that so far compliance of Section 50 and other Sections the N.D.P.S. Act is concerned the prosecution has to adduce evidence and has to show as up to what extent the provisions of these sections has been complied with.

Learned Counsel for the revisionist has cited K.K. Patel v. State of Gujarat and Ors. 2001 SCC 200: 2000 (2) ACR 1658 (SC), wherein it has been laid down by Hon''ble the Apex Court that revision is not exercisable u/s 397(2), Cr. P.C. in relation to interlocutory order but the order passed during interim stage is not the sole test. It was held that if the objection raised by a party is such that it would result in culminating the proceedings, then order passed on such objection would not amount to interlocutory order and revision is maintainable. In this case plea of the revisionist is that trial cannot proceed in Sessions Court. If his plea succeeds then the trial will not proceed in the Court of Session and it may proceed in the Court of Chief Judicial Magistrate. Therefore, in view of this the revision, which has been filed by the accused is maintainable in this Court.

Learned Counsel for the revisionist has cited Pappu alias Jitendra v. State of U.P., 2006 (1) UP Cr R 194: (I)2006 ACC 790, wherein bail was granted to the accused by this Court on the ground that Morphine or opium recovered was less than the commercial quantity and the accused had no criminal antecedent. But in this case bail is not to be granted to the accused. It is to be considered whether the case has to proceed in the Court of Sessions or not and there is sufficient prima facie evidence to frame the charge.

In the opinion of this Court even though the revision is maintainable, it does not succeed on merit because recovery of 5,000 diazepam tablets is not small recovery and there is specific report of the chemical examiner that diazepam was found in the recovered tablets. What was the actual quantity and what were the real different contents found in these diazepam tablets is a matter in respect of which evidence is to be adduced and the facts are to be appreciated. u/s 228, Cr. P.C. while framing charge only prima facie evidence is necessary, which may be a ground to presume that the accused would have committed guilt and proof is not required at the stage of charge. Therefore, there appears no jurisdictional error, material irregularity or illegality in the impugned order and the revision deserves to be dismissed.

The revision is dismissed at the admission stage.