N Tunkhankhup vs Ncb
2010 Latest Caselaw 5310 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.REV.P. 642/2010

                                                       Decided on 23.11.2010
IN THE MATTER OF :
N TUNKHANKHUP                                               ..... Petitioner
                         Through:    Mr. R.A. Worso Zinik, Advocate

                   versus

NCB                                                        ..... Respondent
                         Through:    Mr. Subhash Bansal, Advocate


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Section 397

read with Sections 401 and 482 Cr.P.C. praying inter alia for setting aside

the order dated 27.08.2010 passed by the learned ASJ (Special Judge NDPS)

framing charges against the petitioner for the offence punishable under

Section 21(c) of the NDPS Act.

2. Counsel for the petitioner has based his submission on two

incidents which occurred on the relevant dates, i.e., 21/22.04.2010 to state

that the charges against the petitioner have been wrongly framed and that

he has been unnecessarily involved in the offence.

3. As per the case set up by the NCB, on 21.04.2010 at 15:30

hours, while in the office of Fedex Express Courier situated at Munirka, the

petitioner was found in possession of a polythene bag, from which 420

grams of heroin with 2.76% purity was recovered. As per the NCB, the said

parcels were sealed at the spot and samples were pasted with paper seal

having the date and signatures of the IO, two witnesses and the petitioner.

Thereafter, the petitioner signed each page of the panchnama, and the

proceedings of the panchnama concluded at 17:30 hours. During the course

of search proceedings, the petitioner tried to flee and hurt himself in the

process by falling on the divider of the road, thus sustaining minor injury on

his left eye as a result. After the recovery, the officers of the respondent

duly accompanied by the petitioner proceeded to his residence also situated

at Munirka and conducted a search therein. However, nothing incriminating

was found there. The search concluded at 18:30 hours and thereafter,

summons u/s 57 of the NDPS Act were served on the petitioner. As per the

Department, the petitioner appeared on 22.04.2010 in the office of the NCB

and during his examination, admitted his guilt by making a voluntary

statement that he had received two parcels of heroin from a Nigerian and

the same were supposed to be sent on to the Joy Willams, at Amsterdam.

On 22.04.2010 itself, the petitioner was arrested at 1100 hours and he was

got medically examined at Safdarjung Hospital thereafter.

4. As per the counsel for the petitioner, the story set up by the

Department in the complaint is false and the petitioner has been

unnecessarily dragged in the present case. He submits that the fact of the

matter is that there was no heroin in the container which the petitioner had

taken to the office of Fedex Express Courier on 21.04.2010 for dispatching

to Amsterdam. In support of his submission that the case of the NCB is

concocted, learned counsel for the petitioner sought to draw the attention of

this Court to the medical report of the petitioner. As per the aforesaid

document, at page 61 of the paper book, the date on which the MLC of the

petitioner was conducted is mentioned as 21.04.2010, but at page 62, it is

mentioned as 22.04.2010. Counsel for the petitioner states that the time

written in long hand, on the top left of the MLC is "6:00 PM". He submits

that if completing of panchnama proceedings itself took place upto 1730

hours i.e. upto 5:30 PM, as contended by NCB, then how could the petitioner

have been produced before the doctor at Safdarjung Hospital at 6:00 PM.

Furthermore, he submits that as the petitioner was arrested on 22.04.2010,

how could he have been produced at the Safdarjung Hospital a day in

advance, i.e., on 21.04.2010. He submits that as there are patent

contradictions in the story set up by the NCB, the impugned order dated

27.08.2010, is liable to be set aside.

5. Learned counsel for the respondent vehemently opposes the

aforesaid arguments addressed by the counsel for the petitioner and states

that a perusal of the MLC conducted on the petitioner on 21.04.2010 shows

that he was taken for medical examination to Safdarjung Hospital on that

day itself on account of an eye injury suffered by him when he had fallen on

the divider of the road. He states that even in the complaint filed by the

Department, it has been mentioned in para 4 that during the course of the

search proceedings, the petitioner tried to flee and in the process he hurt

himself and consequently, suffered an injury on his left eyebrow.

6. A perusal of the MLC of the petitioner conducted on 21.04.2010

indicates that the petitioner suffered an injury on his left eyebrow. In so far

as the MLC carried out on the next date, i.e., 22.04.2010 is concerned, it

also reiterates the fact that the petitioner was brought in for medical

examination and that he had no fresh complaints and that he had an injury

over the left eyebrow for which he had already received medical attention.

7. On the basis of the aforesaid MLC alone, this Court cannot arrive

at a conclusion that the petitioner has been wrongly involved in the present

case and the order dated 27.08.2010 framing charges against him ought to

be quashed. It is the contention of the counsel for the petitioner that on

21.04.2010, the petitioner could not have been present at two places at the

same time i.e. at the office of Fedex Express Courier at 5:30 PM, at his

residence at 6:30 PM and for his medical examination at the hospital at 6:00

PM. In support of his submission, he points out the handwritten

endorsement of the time on the top left hand of the MLC of the petitioner

conducted at the Safdarjung Hospital on 21.04.2010.

8. In response, counsel for the respondent has drawn the attention

of this Court to the order dated 27.08.2010 passed by the Special Judge

dismissing the application of the petitioner for grant of bail wherein the

Court has recorded having perused the MLC and the same revealing the fact

that the petitioner was taken to the hospital at "6:50 PM" and not at "6:00

PM". The aforesaid observation is a finding of fact returned by the Special

Judge after perusing the original records and at this stage, this Court

declines to interfere in the said finding by arriving at a conclusion different

from that arrived at by the Court below.

9. Further, the submission of the learned counsel for the petitioner

that the petitioner had not made any of the statements as attributed to him

on 22.04.2010 and that he has been framed by the Department, has to be

seen in the context of the facts and circumstances of the case. A perusal of

the aforesaid statement when read collectively reveals that a lot of personal

information was furnished by the petitioner, which was only in his personal

knowledge and could not have come within the knowledge of the

Department without it having been revealed by the petitioner himself. In his

statement, the petitioner had admitted that the packets found in his

possession, contained drugs, and that he had agreed to deliver the said

consignment containing drugs as handed over by his friend Kevin, a

Nigerian, in return for payment of money. The petitioner stated that he had

left his job and claimed that he had not operated his bank account ever

since. That apart, he had also given the mobile number of one Kevin, his

own bank account number with the HDFC bank, as well as the address of the

bank. All this information could not have come to the knowledge of the NCB

on 22.4.2010, without the same having been furnished by the petitioner

himself.

10. It may further be noted that the power of revision vested in the

High Court under Sections 397 and 401 is a limited power to be exercised

under exceptional circumstances. In the case of T.N. Dhakkal v. James

Basnett reported as (2001) 10 SCC 419, the Supreme Court has opined

that the High Court has revisional jurisdiction under Section 401 of the Code

and can exercise its discretionary jurisdiction to correct miscarriage of

justice, but whether or not, there is justification for the exercise of that

discretionary jurisdiction, would depend upon the facts and circumstances of

each case.

11. In Munna Devi v. State of Rajasthan reported as (2001) 9 SCC

631, it was held that the revisional power under the Code of Criminal

Procedure cannot be exercised in a routine and casual manner. While

exercising such powers, the High Court has no authority to appreciate the

evidence in the manner as the trial and the appellate courts are required to

do. Revisional powers could be exercised only when it is shown that there is

a legal bar against the continuance of the criminal proceedings or the

framing of charge or the facts as stated in the first information report even if

they are taken at the face value and accepted in their entirety do not

constitute the offence for which the accused has been charged. In the case

of Farida Dar v. State reported as 2001 (59) DRJ 94, it was held that

meticulous examination of the material is not to be undertaken at the stage

of revision.

12. In the case of Om Wati v. State reported as (2001) 4 SCC 333

(paras 8 and 12), the Supreme Court had enjoined the High Courts to show

self-restraint in cases of revision against framing of charges unless there is a

glaring injustice staring the court in the face. It further reminded the High

Courts of their statutory obligation to not to interfere at the initial stage of

framing of charges merely on a hypothesis, imagination and far-fetched

reasons which in law amounts to interdicting the trial against the accused

persons. In the case of Rajesh Mehta v. The State reported as (2001) 60

DRJ 678, it was held that the Revisional Court must avoid substituting its

own view at this stage, if the view taken by the trial Court is neither

perverse nor patently unwarranted. In other words, at the stage of revision,

High Court has to only see whether a prima facie case exists for the charge

to be framed, and not appreciate and weigh all the materials on record for

coming to the conclusion that the charge could not have been framed [Ref:

State of M.P. v. S.B. Johari (2000) 2 SCC 57]. The controlling power of the

High Court under Section 401 of the Code being discretionary in nature, is

required to be exercised only in the interest of justice, having regard to all

the facts and circumstances of each case and not in a mechanical manner.

13. In view of the documents on record and looking at the evidence

mentioned in the complaint, it cannot be held that the impugned order

framing charges against the petitioner, is so perverse or unwarranted that it

deserves interference. Nor can it be concluded that the charges have been

framed on mere hypothesis or conjecture. This Court is therefore not

inclined to quash the charges framed against the petitioner at this stage.

The matter is required to be taken to trial for the petitioner to prove that he

is not guilty of the offence mentioned in the charge-sheet.

14. The petition is dismissed.

                                                              (HIMA KOHLI)
NOVEMBER 23, 2010                                                JUDGE
mr