Crl.Pet./767/2024
2024 Latest Caselaw 8358 Gua

Gauhati High Court

Crl.Pet./767/2024 on 14 November, 2024

GAHC010219772024




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

                                      Crl.Pet./767/2024

                                      Md. Jamal Uddin,
                                      S/o Md. Jalal Uddin
                                      R/o Udmari, Singari
                                      P.S.-Juria, District - Nagaon
                                      Assam

                                                                          .....Petitioner
                                                 -Versus-

                                      The State of Assam
                                      Represented by the Public Prosecutor
                                      Assam

                                                                       ......Respondent

     For Petitioner              :    Mr. B. M. Choudhury, Advocate
     For Respondent              :    Mr. D. P. Goswami, Additional Public Prosecutor

     Date of Hearing             :    13.11.2024

     Date of Judgment            :    14.11.2024




Criminal Petition No. 767/2024                                               Page 1
                            BEFORE
             HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
                                 JUDGMENT

1. Heard Mr. B. M. Choudhury, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor, appearing for the State of Assam.

2. This application under Section 482 read with Section 397 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Md. Jamal Uddin, impugning the Order dated 19.04.2023 passed in NDPS Case No. 22/2024 by the Court of learned Additional Sessions Judge-cum-Special Judge, NDPS, Karbi Anglong, Diphu whereby the said Court was pleased to frame charges under Section 21(c)/29 of the NDPS Act, 1985 against the present petitioner.

3. The facts relevant for consideration of the instant criminal petitioner in brief, are, as follows:

i. On 12.10.2023, one Dipen Chandra Baruah S. I. of Police Station Borpathar had lodged an FIR, before the Officer-in- charge of Borpathar Police Station, inter-alia, alleging that on that day (12.10.2023) when the first informant was conducting the regular naka checking duty at National Highway No. 39, Khakrajan naka checking point, at about 2.23 p.m., the naka checking team stopped a white colour i20 vehicle bearing registration No. AS13F5257 which was coming from Dimapur side towards Golaghat via Borpathar. There were two occupants inside the vehicle, namely, Md. Sahid Khan and Md.

Criminal Petition No. 767/2024 Page 2 Ikbal. When they were stopped they seems to be nervous and were not unable to give satisfactory reply about from where they were proceeding and for what purpose.

ii. On suspicion, a search was made of their vehicle. During thorough search of the vehicle in presence of independent witnesses, 60 number of plastic soap boxes, containing suspected heroine were recovered from a secret chamber in the door penal of the said vehicle.

iii. On weighing the recovered heroin, the total weight of the same was found to be 726.05 grams (without plastic soap case). iv. Thereafter, the said vehicle was seized along with contraband and both the occupants were apprehended and Borpathar P. S. Case No. 41/2023 was registered under Section 21(c)/29 of the NDPS Act, 1985 and investigation was initiated. v. During investigation the apprehended accused persons, namely, Md. Sahid Khan and Md. Ikbal had stated in their statement before the Investigating Officer that the seized contraband were meant to be delivered to a person hailing from Nagaon, Juria and his name is Jamal Uddin. On the basis of the said statement the present petitioner was arrested. vi. Ultimately, on completion of the investigation, charge-sheet under Section 21(c)/29 of the NDPS Act, 1985 was laid against three accused persons, including the present petitioner. vii. The petition filed for discharging the present petitioner was rejected by the Trial Court and charges under Section 21(c)/29

Criminal Petition No. 767/2024 Page 3 of the NDPS Act, 1985 was framed against him, when the said charges were read over and explained to him, he pleaded not guilty to the said charges.

4. Mr. B. M. Choudhury, learned counsel for the petitioner has submitted that the present petitioner was shown arrested in this case on 29.01.2024, and since then, he has been detained behind the bars.

5. Learned counsel for the petitioner has also submitted that the allegations levelled against the present petitioner in the charge-sheet are false and he is an innocent person and has been wrongly implicated in the instant case.

6. It is submitted by the learned counsel for the petitioner that nothing was recovered from the possession of the present petitioner Md. Jamal Uddin as is apparent from the FIR as well as the charge- sheet.

7. Learned counsel for the petitioner has submitted that the charge-

sheet against the present petitioner has been filed merely on the basis of statement of the co-accused Md. Sahid Khan and Md. Ikbal which is inadmissible in evidence in an offence under NDPS Act, 1985.

8. Learned counsel for the petitioner has submitted that in view of the ruling of the Apex Court in the case of "Tofan Singh Vs. State of Tamil Nadu" reported in 2021 (4) SCC 1, it is no longer res integra that

statement of the accused as well as co-accused recorded during the course of the investigation by the Investigating Officer under Section

Criminal Petition No. 767/2024 Page 4 67 of the NDPS Act, 1985 is inadmissible in evidence in the trial of an offence under the NDPS Act, 1985 and hence, the Trial Court has erred in framing the charges under Section 21(c)/29 of the NDPS Act, 1985 against the present petitioner on the basis of inadmissible evidence on record. He, therefore, submits that the petitioner is entitled to be discharged under Section 227 of the Code of Criminal Procedure, 1973 and the impugned order dated 19.04.2024 as regards framing of charges against the present petitioner is liable to be set aside.

9. Learned counsel for the petitioner has also submitted that though the instant case has been registered as a Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973, however, the fact that considering the nature of relief sought for in this case Criminal Revision Petition under Section 397/401 of the Code of Criminal Procedure, 1973 would have been maintainable, would constitute no bar for entertaining an application under Section 482 of the Code of Criminal Procedure, 1973. In that regard, he has cited a ruling of the Supreme Court of India in the case of "Prabhu Chawla Vs. State of Rajasthan & Another" reported in 2016 (16) SCC Page 30.

10. On the other hand, Mr. D. P. Goswami, learned Additional Public Prosecutor has fairly submitted that on perusal of the scanned copy of the case diary of Borpathar P. S. Case No. 41/2023 as well as the scanned copy of the case record of NDPS Case No. 22/2024, which was requisitioned from the Trial Court in connection with this case, it appears that the charge sheet against the present petitioner has

Criminal Petition No. 767/2024 Page 5 been laid in this case only on the basis of the statement of the co- accused, namely, Md. Sahid Khan and Md. Ikbal. He also submits that no other material except the statement of the co-accused is there on record to implicate the present petitioner in this case.

11. I have considered the submissions made by the learned counsel for both the sides and have perused the scanned copy of the case diary of Borpathar P. S. Case No. 41/2023.

12. Perusal of the scanned copy of the case record of the NDPS Case No. 22/2024 along with the case diary of Borpathar P. S. Case No. 41/2023, it appears that apart from the statement of the co-accused, namely, Md. Sahid Khan and Md. Ikbal, recorded during the course of the investigation, there is no other admissible material on record to implicate the present petitioner in the offence alleged in the FIR as well as the offence under which the charges are framed against the present petitioner.

13. It is no longer res-integra, in view of the ruling of the Apex Court in the case of "Tofan Singh Vs. State of Tamil Nadu" (Supra) that the statement of the co-accused recorded during investigation by the police officer may not be regarded as an admissible evidence in a trial of an offence under NDPS Act, 1985. Under such circumstances, in the instant case, there remains no admissible evidence on record against the petitioner to justify framing of charges against the present petitioner.

14. Under Section 228 of the Code of Criminal Procedure, 1973 charges may be framed if the Judge is of the opinion that there is ground for

Criminal Petition No. 767/2024 Page 6 presuming that the accused has committed an offence. Though, learned Additional Sessions Judge-cum-Special Judge, NDPS, Karbi Anglong, Diphu has observed in the impugned order that prima facie materials at the stage of framing charges are sufficient, however, the materials on the basis of which such prima facie satisfaction may be arrived and charges shall also have to be admissible in evidence in trial, which is not the case in the instant case. Even grave suspicion regarding involvement of the petitioner in the alleged offence has to be only on the basis of, admissible evidence.

15. To say otherwise, the suspicion regarding complicity of the petitioner in alleged evidence cannot be on the basis of inadmissible evidence and in this regard, the learned Additional Sessions Judge-cum-Special Judge, NDPS, Karbi Anglong, Diphu has erred in basing her finding, that there is a ground for presuming that the petitioner has committed the offence, on the basis of inadmissible evidence.

16. For the reasons stated above, this Court is of the considered opinion that the learned Additional Sessions Judge-cum-Special Judge, NDPS, Karbi Anglong, Diphu had erred in framing charges against the present petitioner (Md. Jamal Uddin) under Section 21(c)/29 of the NDPS Act, 1985 without there being any admissible evidence and any ground for presuming that he has committed the offence alleged against him.

17. For the reasons mentioned hereinabove, the impugned order is liable to be interfered with, accordingly, the impugned order to the extent

Criminal Petition No. 767/2024 Page 7 of framing charges against Md. Jamal Uddin under Section 21(c)/29 of the NDPS Act, 1985 is hereby set aside.

18. The petitioner, Md. Jamal Uddin, is, accordingly, discharged of offence under Section 21(c)/29 of the NDPS Act, 1985. He shall be immediately set at liberty forthwith if not required in connection with any other case.

19. This Criminal Petition is, accordingly, allowed.

20. Let a copy of this judgment be sent immediately to the Court of learned Additional Sessions Judge-cum-Special Judge, NDPS, Karbi Anglong, Diphu.

                                                            JUDGE



       Comparing Assistant




Criminal Petition No. 767/2024                                          Page 8