Rajendra Sarraf vs Union Of India
2022 Latest Caselaw 22444 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 28.11.2022.
 
Delivered on   22.12.2022. 
 
Court No. - 84 
 

 
Case :- APPLICATION U/S 482 No. - 16795 of 2022 
 

 
Applicant :- Rajendra Sarraf 
 
Opposite Party :- Union of India 
 
Counsel for Applicant :- Chandra Prakash Singh 
 
Counsel for Opposite Party :- Ashish Pandey 
 

 
Hon'ble Saurabh Shyam Shamshery,J. 

1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri C.P. Singh, learned counsel for applicant and Sri Ashish Pandey, Advocate for Opposite Party. Perused the records.

2. By means of this application, applicant has approached this Court for quashing the order dated 21.5.2022 and entire criminal proceedings of special trial no.763 of 2021 arising out of N.D.P.S. Special Case No.4A/1 in NCB/LZU/CR 12 of 2020 under Section 8/20/29 N.D.P.S. Act registered at Police Station N.C.B. Lucknow district-Jhansi.

3. Applicant is facing trial along with co-accused persons in the aforesaid case in pursuance of a complaint filed by N.C.B. Lucknow at Jhansi under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act").

4. N.C.B. has filed the aforesaid complaint against four co-accused persons namely Vinod Singh, Sanjay Kumar Singh, Shankar Barik @ Vikram and Chhote Lal under Sections 8/20/29 of the N.D.P.S Act on a specific information received on 27.5.2020 that above referred four persons of inter State Gang are smuggling contraband material and on basis of said secret information, two trucks were intercepted. Driver and the persons sitting inside the truck were Vinod Singh, Sanjay Kumar Singh and Shankar Barik @ Vikram who were apprehended and after complying with the provisions of Section 50 of the NDPS Act, 25 gunny bags were recovered with different amount of Ganja measuring a total of 1025 Kg. Recovery memo was also prepared on 29.5.2020.

5. In pursuance of further investigation, on 29.5.2020, notice was sent to all accused persons under section 67 of NDPS Act and in response to said notice, all accused persons have voluntarily made their statements and accepted their involvement in illegal trafficking of Ganja. The contraband was to be handed over to applicant as well as fourth named accused was also actively involved in crime. Accused were known to each other.

6. During investigation, call details of CDR's of co-accused as well as of the applicant were also investigated and certificate under Section 65 (b) of I.T. of the Telecom Service Provider was also issued and while complaint was filed against four named accused persons however investigation in connection with applicant and Ravindra Kumar was kept open. In the statement of co-accused involvement of applicant was also surfaced, being recipient of consignment of Ganja.

7. A notice was issued to the applicant under Section 67 of NDPS Act to which he responded and notice was also issued to Proprietor of the Guest House.

8. During investigation, it was revealed that Ganja has to be supplied to the applicant at guest house. Applicant has also given his voluntary statement, accepting involvement of illegal trafficking of Ganga and accordingly applicant was also made an accused.

9. Applicant filed a discharge application which was rejected by the impugned order dated 21.5.2022 which is under challenge in the present application.

10. Learned Senior Advocate appearing for the applicant vehemently argued that only evidence against the applicant is his confessional statement made to a officer of Narcotic Control Bureau recorded under Section 67 of the NDPS Act. He has heavily placed reliance upon judgment of Supreme Court in Toofan Singh Vs. State of Tamil Nadu, (2021) 2 SCC (Cri) 246, that confessional statement recorded under Section 67 of NDPS Act is not admissible in trial as well as he placed reliance on a judgment of Supreme Court in Bharat Chaudhary Vs. Union of India, Special Leave to Appeal Criminal No.5703 of 2021 decided on 13.11.2021 that mere reliance on a statement made by accused person under Section 67 of NDPS Act was too tenious a ground to sustain the impugned order therein whereby bail was cancelled by the concerned High Court.

11. Learned Senior Advocate appearing for the applicant has also placed reliance upon a judgment of Supreme Court in Zandu Pharmaceutical Works Ltd. & Ors Vs. Mohd. Sharaful Haque & Anr, (2005) 1 SCC 122 and R.P.Kapur Vs. State of Punjab, AIR 1960 (SC) 866, wherein it has been held that:

"There may be cases where it may be possible for the high Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground.

A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question."

12. Per contra Shri. Ashish Pandey, learned counsel appearing for the opposite party (NCB) has vehemently argued that Supreme Court in Toofan Singh (supra) was considering the evidentiary value of a statement made by accused before an Officer of NCB during trial and held that as statement has no evidentiary value, conviction cannot be made only on the basis of such statement. However, presently, the court is dealing a challenge to a discharge application wherein test is whether more than prima-facie case was made out against applicant or not. Learned Counsel further submitted that huge quantity of Ganja was recovered from two trucks wherein it was concealed secretly. The applicant was involved in other cases also arising out of illegal trafficking of Ganja. The applicant has conscious and constructive possession and recovered ganja was supposed to be delivered to him. The evidence against the applicant is only statement recorded under Section 67 of NDPS Act but there are other corroborations in form of CDR report also, wherein his complicity and involvement along with co-accused persons is prima-facie evident, therefore, there is no illegality in rejecting the discharge application.

13. In the present case, court is dealing a case where huge quantity of 1025 Kg of Ganja was recovered and complicity of three co-accused apprehended during intercepting of two trucks as well as other two co- accused including applicant were also found. During investigation name of the applicant was disclosed as being proposed recipient of said huge quantity of Ganja.

14. All accused persons have accepted their involvement in illegal trafficking of Ganja as well as details of CDR shows that phone of the applicant was in regular touch with co-accused at relevant time. In these circumstances, Court has to decide whether the discharge application was rightly rejected or not.

15. Law in regard to the consideration of discharge application has been recently reiterated in Ghulam Hassan Beigh Vs. Mohd. Maqboo Magrey and Others, 2022 SCC OnLine SC 913. Relevant paragraph No.29 is mentioned hereinafter:

"29. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217)."

(Emphasis supplied)

16. Learned Senior Counsel appearing for the applicant has heavily placed reliance mainly on Toofan Singh (supra) wherein a three judge bench by majority of two judges considered a reference that whether a conviction can be sustained only on the basis of a confessional statement of an accused recorded under Section 67 of the NDPS Act and the bench proceeded to consider the evidentiary value of statement recorded under Section 67 of NDPS Act and finally held that confessional statement made before a officer designated under Section 42 or Section 53 of the NDPS Act can be the basis to convict a person under N.D.P.S. Act, without any non-obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would result in direct infringement of fundamental rights contained in Article 14, 20 (3) and 21 of the Constitution of India. Therefore, in Toofan Singh (supra) Supreme Court was dealing with evidentiary value of confessional statement and its effect during trial. However, Supreme Court has not adverted whether there are other evidences such as recovery, number of telephonic conversation between the accused persons during relevant time and other evidence in regard to involvement of accused persons, therefore to import finding of Toofan Singh (supra) at stage of consideration of quashing of criminal proceedings under Section 482 Cr.P.C., or during challenge to rejection of a discharge application would amount to interference with criminal proceedings at a very nascent stage which will not be in the interest of justice.

17. Court is considering a very serious offence which is not against one person, but against the public at large.

18. Statement of accused persons during investigation is nothing but a statement made under Section 161 Cr,.P.C. which is a very limited scope during trial. However, such statement may lead to further investigation and to connect the accused with help of other supporting evidence, as in the present case there are details of telephonic conversation between applicant and co-accused at relevant time, which is a substantive evidence against the applicant and on basis of such evidence, more than prima-facie case is made out against him and as held in Ghulam Hassan Beigh (supra) a strong presumption or a strong suspicion is enough to reject a discharge application.

19. Accordingly, I do not find any merit in the argument of learned Senior Counsel appearing for the applicant and as such the application is rejected.

Order Date :-22.12.2022

SB/AK