Abdul Matin vs The State Of Assam And Anr
2022 Latest Caselaw 2870 Gua

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GAHC010042882021




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.Pet./161/2021

            ABDUL MATIN
            S/O LATE MAIZUR RAHMAN, R/O KANDIGRAM, P.O. AND P.S.-
            NILAMBAZAR, DIST-KARIMGANJ, ASSAM, PIN-788722

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:ALIM UDDIN MAZUMDER
             (THE THEN OFFICER IN CHARGE OF NILAMBAZAR POLICE
            STATION/INFORMANT)
             P.O. AND P.S.-NILAMBAZAR
             DIST-KARIMGANJ
            ASSAM
             PIN-78872

Advocate for the Petitioner    : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

Date : 10-08-2022

JUDGMENT & ORDER (CAV)

Heard Mr. H.R.A.Choudhury, learned Senior counsel for the petitioner.

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Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor appearing for the State respondent.

2. This petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India has been filed by the petitioner praying for quashing of the order, dated 28.01.2021 passed by the learned Sessions Judge and Special Judge (N.D.P.S. Act), Karimganj in Special Case No. 18/2016 framing charge under Section 21(C) of the Narcotic Drugs and psychotropic substance act 1985 ('NDPS Act' for short) against the petitioner.

3. The scanned copy of the case record along with the case diary, as called for, is placed before the court.

4. Mr. H.R.A. Choudhury, learned Senior counsel appearing for the accused petitioner, submitted that the accused petitioner has been facing trial in Special Case No. 18/2016 pending in the court of learned Special Judge (N.D.P.S. Act), Karimganj, Assam, where a charge under Section 21(C) of the N.D.P.S. Act has been framed against him and another vide the impugned order, dated 28.01.2021. Mr. Choudhury further submitted that the accused petitioner filed a petition under Section 227 Cr.P.C. denying all the allegations levelled against him and thereby to discharge him in view of absence of any incriminating materials. The learned Special Judge, however, rejected the said petition wrongly holding the opinion that there are sufficient grounds for presuming that the accused petitioner had committed the said offence punishable under Section 21(C) of the N.D.P.S. Act. Mr. Choudhury also submitted that the investigating officer during investigation recorded the statements of 11 (eleven) witnesses, but none of them made any whisper as regards the involvement of the accused petitioner in the commission of the offence charged with.

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5. Mr. H. R. A. Choudhury, learned Senior counsel, strenuously submitted that the accused petitioner, who had personal enmity with the informant/police officer deliberately and falsely implicated him and another, who is the owner of the seized vehicle with ulterior motive. Mr. Choudhury submitted that the alleged huge quantity of contraband phensedyl cough syrup bottles numbering 3000 was seized from the vehicle found in abandoned condition and as such, the seizure was not made from the conscious possession of the accused petitioner attracting the offence charged with. According to Mr. Choudhury, learned Senior counsel, the accused petitioner has been compelled to face the trial without any iota of incriminating evidence. In support of his submission, Mr. Choudury relied on the proposition of law propounded by the Hon'ble Supreme Court in State of Orissa Vs Debendra Nath Podhi reported in (2005) 1 SCC 568, Soma Chakraborty Vs State through CBI, reported in (2007) 5 SCC 403, Amit Kapoor vs Ramesh Chander and another reported in (2012) 9 SCC 460 and Sajjan Kumar vs CBI, reported in (2010) 9 SCC 368 and the averments made by the petitioner in the Additional Affidavit, dated 23.02.2022.

6. Vehemently opposing the petition, Mr. B.B.Gogoi, learned Additional Pubic Prosecutor appearing for both the respondents, submitted that the case diary reveals that there is abundance of prima facie incriminating evidence establishing the accused petitioner as the prime accused in transportation of a huge number of phensedyl cough syrup bottles suspected to be codein phosphate based by a Bolero pickup van, concealed under 15 (fifteen) number of husk containing bags. Therefore, Mr. Gogoi submitted that as the learned Special Judge (NDPS Act), Karimganj has rightly framed the charge against the accused petitioner, no interference is called for.

7. I have given due consideration to the above submissions made by the Page No.# 4/9

learned counsel of both sides. Also perused the case record along with the case diary.

8. A perusal of the case diary reveals that the officer-in-charge of Nilambazar PS lodged an F.I.R. on 24.11.2016 alleging that on that day at about 3.45 p.m., based on an information, searched in a Bolero pickup truck bearing registration No. AS 10C 5809 loaded with husk without driver and owner on a village road. During search being conducted by SI CR Nath and staff, they found 15 bags containing husk and 14 bags containing phensedyl cough syrup bottles suspected to be codeine phosphate based numbering 3000 (three thousand) bottles. It was suspected that the owner of the truck namely, Abdul Rahim and as reported, the present accused petitioner were also involved in the said crime.

9. The impugned order, dated 28.01.2021, passed by the learned Special Judge (N.D.P.S. Act), Karimganj, reads as extracted hereunder:-

"28.01.2021 The accused persons namely Abdul Matin and Abdul Rahim are present.

Heard learned counsel for the accused as well as the learned Public Prosecutor on the matter of consideration of charge. Perused the materials on record.

After duly considering the submissions of the learned counsel for both sides and materials on record, this Court is of the opinion that there are considerable grounds for presuming that the accused persons have committed offense punishable under Section 21(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

Accordingly, the charge under Section 21(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 has been framed against the aforesaid accused Abdul Matin and Abdul Rahim.

The charge has been read over and explained to them, to which they pleaded not guilty and claimed to stand trial.

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As such, this Court directs that the aforesaid accused be tried on the charge of having committed offence under Section 21(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

Fixed 01.03.2021 for evidence of persecution. Prosecution shall take steps accordingly."

10. It may pertinently be mentioned that at charge framing stage, the court is required to see whether a prima facie case has been made out or not. The question whether the charge framed will eventually stand disproved or not, can be determined only after the evidence is recorded. A detailed examination of merits of the case is not permissible at this stage.

In Soma Chakraborty Vs State through CBI, reported in (2007) 5 SCC 403, the Hon'ble Supreme Court held-

"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial."

In Amit Kapoor vs Ramesh Chander and another reported in (2012) 9 SCC 460:-

"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."

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In Sajjan Kumar vs CBI, reported in (2010) 9 SCC 368 as quoted in Asim Shariff vs National Investigation Agency reported in (2019) 7 SCC 148, reiterated the principles in para No.16 as extracted herein below:-

"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. however, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial.

(i) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(ii) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(iii) At the stage of Section 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

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(iv) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 Cr.P.C. in sessions case (which is akin to Section 239 Cr.P.C. pertaining to warrant cases) has the undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C., it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record."

In para 9 of the judgment rendered in State of Orissa Vs Debendra Nath Padhi reported in (2005) 1 SCC 568 the Hon'ble Supreme Court observed as follows:-

"Section227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged."

11. With regard to the above grounds cited by the accused petitioner in the instant petition and in the application filed before the learned trial court, dated 26.03.2019, I have gone through the evidence collected by the Investigating Officer in the course of investigation into the case.

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12. On perusal of the seizure memo prepared by S.I. Chittaranjan Nath, it is noticed that 3000 bottles of phensedyl cough syrup bottles were recovered from one Bolero pickup truck bearing registration No. AS 10 C 5809 which was found standing at Brahmanshashon village. The FSL, after examining samples of the seized phensedyl, reported that it gave positive tests for codeine (present as codeine phosphate) and the amount in the said sample was 192.3 mg.

13. In Kanti Bhadra Shah case, reported in (2001) 1 SCC 722, the Hon'ble Supreme Court held that no reasons are required to be recorded when charges are to be framed against an accused. The Apex Court in State of Bihar Vs Ramesh Singh, reported in (1977) 4 SCC 39 held that at the beginning and the initial stage of the trial of a case, the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. In Amit Kapoor Vs Ramesh Chander & Another, reported in (2012) 9 SCC 460, the Hon'ble Supreme Court held that at the stage of Section 228 Cr.P.C., the court is not concerned with proof but merely strong suspicion that accused has committed the alleged offences. The final test of guilt is not to be applied at the stage of framing of charge.

14. On a thorough scrutiny of the case record and the case diary, it is noticed that the accused petitioner's name has come in the statements of some of the witnesses recorded under Section 161 Cr.P.C. and accused's statement under Section 161 Cr.P.C. The investigating officer having considered those statements including that of the accused and the records of criminal antecedent in connection with drugs trafficking and cattle smugglings strongly suspected of involvement of the present accused petitioner in commission of the alleged offence. Therefore, in the aforesaid backdrop of facts as observed by the Page No.# 9/9

Hon'ble Apex Court in State of Haryana versus Samarth Kumar, reported in 2022 Live Law (SC) 622, the accused petitioner may, perhaps, be able to take advantage of the decision in Tofan Singh versus State of Tamil Nadu, reported in (2021) 4 SCC 1 at the time of final hearing after conclusion of trial.

15. For the above stated reasons, the petition stands dismissed.

Accordingly, the petition is disposed of.

JUDGE

Comparing Assistant