Sanjiv Rajendra Bhatt vs State Of Gujarat
2021 Latest Caselaw 10669 Guj

    R/CR.RA/296/2021                                  CAV JUDGMENT DATED: 05/08/2021


               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL REVISION APPLICATION NO. 296 of 2021



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR. JUSTICE ILESH J. VORA                    SD/-
==========================================================

1 Whether Reporters of Local Papers may be allowed to YES see the judgment ?

2      To be referred to the Reporter or not ?                              YES

3      Whether their Lordships wish to see the fair copy of the              NO
       judgment ?

4      Whether this case involves a substantial question of law              NO

as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SANJIV RAJENDRA BHATT Versus STATE OF GUJARAT ========================================================== Appearance:

MR SAURIN A SHAH(791) for the Applicant(s) No. 1 MR MITESH AMIN, LD. PP WITH MRS. KRINA CALLA, APP (2) for the

========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

Date : 05/08/2021

CAV JUDGMENT

1. By way of present revision application filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has assailed the order dated 18.03.2021 passed by learned Special Court (NDPS) and 5th Additional

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Sessions Court, Banaskantha at Palanpur, below Exh:139 in Special (NDPS) Case No.3/2018, whereby, the learned Special Judge rejected the application filed under Section 216 of the Code to alter/modify charge framed in respect of offences under Sections 17, 21, 27(A) of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act for short) and Sections 465 & 471 of the Indian Penal Code.

2. The applicant is facing trial in the Court of learned Special Judge, Banaskantha at Palanpur in Special (NDPS) Case No.3/2018 for the offences 120(b), 117, 167, 204, 343, 465, 471 read with Section 120(b) and Sections 17, 18, 21, 27(a), 29, 58(1) and 58(2) of the NDPS Act. In this case, the applicant moved an application under Section 227 of the Code to discharge him from the alleged charges. The learned Special Court vide its order dated 23.08.2019, rejected the application. Thereafter, on 17.09.2019, the applicant Sanjeev Bhatt moved an another application at Exh:56 inter alia stating that, the sections under the NDPS Act, mentioned in the draft charge are not attracted and therefore, before framing charge, he may be accorded right of hearing. The learned Special Judge, after hearing the applicant and prosecution, rejected the application vide its order dated 18.09.2019 and on the same day, the charges came to be framed for the offences as referred to above. The applicant had filed revision petition being Criminal Revision Application No.1650/2019 before this Court, challenging the rejection of his discharge application and the same was dismissed vide order dated 21.05.2020. In the aforesaid background, on 02.03.2021, the applicant moved an application under Section 216 of the Code for alteration of charges framed at Exh:59, praying the following relief:-

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"The accused No.2 therefore most humbly prays that, (A) To alter the defective charge framed vide Exh:59 in respect to offences under Sections 17, 21, 27(A) of NDPS Act and Sections 465, 471 r/w 109, 34 of the IPC in view of the peculiar facts and circumstances of the case stated above. "

3. The application filed under Section 216 of the Code at Exh:139 came to be rejected by the Special Court vide its order dated 18.03.2021. Aggrieved by it, the present revision has been filed.

4. The brief facts of the prosecution case reads as follows:

4.1 It is alleged by the prosecution that, when the applicant was posted as District Superintendent of Police, Banaskantha at Palanpur, he and other co-accused have hatched the conspiracy to frame one Sumer Singh Rajpurohit, resident of Pali, Rajasthan State, in a false case of opium, punishable under the provisions of the NDPS Act. It is further alleged that, the applicant being a District Superintendent of Police by influencing his subordinate officer had involved them in the alleged criminal conspiracy. As a part of conspiracy, a false verdhi was being transmitted to control room on 30.04.1996 inter alia stating that, information received by the control room that, at about 06:10 a.m, Sumer Singh Rajpurohit is doing business of Opium and yesterday he brought 5 kgs opium and stayed at Hotel Lajvanti, Palanpur and delivery of the opium has to be given in Palanpur. It is alleged that, prior to the alleged verdhi, the applicant had knowledge that, the verdhi was bogus and false and had made conversation with his subordinate officer i.e. Mr. I.B.Vyas, Police Inspector, Local Crime Branch that, case of NDPS is required to be investigated. It is alleged that, Mr. Sanjeev Bhatt i.e applicant herein directed the concerned to send the verdhi to LCB office

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and directed Mr. Vyas to investigate the case. Mr. Vyas had raided the Hotel Lajvanti and seized the contraband opium of 1.15 Kgs. from Room No.305 of the Hotel which was booked in the name of Sumer Singh in the register maintained by the hotel. It is alleged that, after seizure of the opium and upon further inquiry, it was found that, Sumer Singh had left the hotel without informing anybody. Mr. Vyas being a complainant lodged the FIR being Prohibition C.R.No.216/1996 at Palanpur Police Station and investigation was entrusted to Mr. Vyas and during the course of investigation, he had arrested Sumer Singh and produced before the Court and sought his remand. It is alleged that, during investigation, the applicant Mr. Bhatt had directed Mr. Vyas to inquire about the rented shop of Sumer Singh and Mr. Bhatt had also made conversation with Sumer Singh about his shop and threatened him to vacate the same. It is alleged that at the instance of the applicant Mr. Bhatt, report under Section 169 of the Code had been filed by the respondent No.2 Mr. I.B.Vyas, inter alia, stating that, the person occupying the room at hotel was not Sumer Singh and accordingly, Sumer Singh was discharged by the Court and finally, 'A' summary report was filed.

4.2 Two petitions were filed before the Gujarat High Court for further investigation by the State CBI in the matter and this Court vide order dated 03.04.2018 directed the State to form a special investigation team and accordingly, SIT was constituted and investigation was entrusted to Mr. Virendrasinh Yadav, who had recorded the statements of the witnesses, collected the material evidence, arrested the applicant and Mr. Vyas, PI of Local Crime Branch under the charges as referred to above and finally, on 02.11.2018, chargesheet came to be filed before the Special Court and charges came to be framed by the Special Court on

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18.09.2019 at Exh:59 under Sections 120(b), 117, 167, 204, 343, 465, 471 read with Section 120(b) and Sections 17, 18, 21, 27(a), 29, 58(1) and 58(2) of the NDPS Act alleging that, the applicant and co-accused have hatched conspiracy to frame Sumer Singh in the alleged offence under the provisions of the NDPS Act. It is alleged that, in order to achieve the object of conspiracy, the applicant financed to procure the opium, fabricated the contents of verdhi, allegedly forged the entry in the hotel register, conspired to plant the opium as alleged, for which, the applicant and respondent No.2 are facing the trial for the offence as referred to above.

5. Heard Mr. Saurin Shah, learned counsel for the applicant and Mr. Mitesh Amin, learned Public prosecutor assisted by Mrs. Krina Calla, learned APP for the respondent State.

6. Mr. Saurin Shah, learned counsel appearing on behalf of the applicant has urged the following submissions :-

(a) It it his submission that, while submitting the draft charge, the prosecution has added new sections under the provisions of the NDPS Act and IPC, which were not part of the chargesheet and therefore, while framing the charge at Exh:59 for Sections 21 and 27(A) of the NDPS Act and Sections 465 and 471 of the IPC are defective charges as there is no material produced by the prosecution before the Court in support thereof to substantiate the said charges and therefore, the learned Special Court ought to have held that, the charges framed at Exh:59 are defective qua Sections 21, 27(A) of the NDPS Act and Sections 465 and 471 of IPC, which required to be altered/modified.

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(b) It is submitted that, seized contraband does not fall within the definition of manufactured drug. Referring to the sections 21, 2(11), 2(15), 2(16) of the NDPS Act to submit that, the seized contraband is not manufactured drug, nor it is opium derivative and therefore, Section 21 of the Act is not attracted. IN this background, it is submitted that, the learned Special Judge has framed the charge for offence under Section 17 or 18 or 21 of the NDPS Act, which is contrary to the settled law as the charge has to be a specific charge against the accused and Court cannot frame different charges as optional. Mr. Shah has drawn the attention of this Court to FSL report which is indicative that, as per the botanical examination, the opium found can be considered as natural opium. Thus, the alternate charge under Section 17 or 21 of the NDPS Act, is unwarranted and the learned Special Judge ought to have altered the charge as the same is a defective charge.

(c) It is submitted that, the charge framed under Section 27(A) is also defective as there is no material on record before the Court to substantiate the said charge. In this context, Mr. Saurin Shah, learned counsel would submit that, Section 27(A) would come into play only if someone is found indulged in financing directly or indirectly activities that are specified in sub-clauses (I) to

(v) of clause (viii b). It is his submission that, as per the prosecution case, the applicant gave Rs.20,000/- to Mr. Malabhai to procure the opium. This very fact shows that the money was given for procurement and not for the purpose of financing to carry on activities as defined in section 27(a) of the Act. Thus, the allegation would not tantamount to financing to carry out the activities and

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therefore, the charge of Section 27(A) framed is defective, which needs to be altered.

(d) It would further submit that, there is a charge against the applicant under Sections 465 and 471 of the IPC alleging that, in the name of Sumer Singh, forged entry being made in the hotel register. In this aspect, it is submitted that, the prosecution is silent about the fact that, who created a false entry in the name of witness Sumer Singh in the Hotel Lajvanti and therefore, question of framing charge for Sections 465 and 471 of IPC does not arise, more particularly when the very said aspect was investigated by Pali Police, wherein, it is alleged that, the hotel owner Shantilal himself had affixed the signature in the name of Sumer Singh or got the signature from the forged person Sumer Singh and the signature is not legible and if it is so, then it was the responsibility of the hotel owner to get the proper and complete signature. It is pointed out that, the specimen signature of the applicant for the purpose of verification of the alleged handwriting having not been taken at the time of investigation. Under the circumstances, the learned Special Court ought to have held that, framing of charge under Sections 465 and 471 of the IPC is required to be altered as the same is defective.

7. Placing reliance on the case of Anant Prakash Sinha Vs. State of Haryana [(2016) 6 SCC 105], to submit that, the trial Court has power to make alteration in the charge at any stage after the charge has been framed and Court may proceed either its own motion or on application by the party, if there is defect or something is left out and the test is, it must be founded on material available on record.

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In view of the aforesaid contentions, the learned counsel Mr. Saurin Shah for the applicant submits that as the impugned order is arbitrary, capricious and bad in law, the same is required to be quashed and set aside.

8. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the revision application contending that, this is a third round of litigation on the same issues, which have been decided by the trial Court and confirmed by this Court. In this background, it was submitted that, the application of discharge filed under Section 227 of the Code was rejected by the trial Court and revision petition against the order of discharge also came to be dismissed by this Court, wherein, the applicability of the provisions of NDPS Act and IPC was raised and extensively dealt with by the Court. It was further submitted that, before the charge framed, the applicant had specifically raised the contention that, some of the provisions of the NDPS Act are not attracted, by filing application at Exh:56 and after hearing the parties, the trial Court rejected the same and accordingly, charges having been framed by the trial Court at Exh:59. The applicant has not filed any revision petition challenging the charge framed and now, invoking Section 216 of the Code asked the Court either to review the decision or to delete the charges framed at Exh:59 which cannot be permissible in the law. It was submitted that, once the charge has been framed, the accused has to be put on trial and there is no provision for deletion or dropping the charge as Section 216 of the Code does not envisage the deletion of the charge.

9. Learned Public Prosecutor for the State would further submit that, the application filed under Section 216 of the code with sole intention to delay the trial proceedings. It was further

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submitted that the applicant is in habit of filing various frivolous application in several criminal proceedings faced by him and his modus operandie is to drag the proceedings under one pretext or other so that, trial would not commence. Thus, it is the submission of learned Public Prosecutor that the impugned order is legal, just and proper and the learned Special Court has properly assigned reasons while rejecting the application and therefore, no interference is warranted.

10. Relying on the case of Dr. Nallaparaddy Shridhar Reddy Vs. State of Andhra Pradesh [(2020) 12 SCC 467], to submit that, there was no any omission in framing the charge by the Court and before framing of charge, the applicant accused had raised the contention which is challenged in this revision and the same was extensively dealt with by the Court and the prayer of the discharge also has been rejected by the trial Court as well as by the High Court. Thus, the trial Court has rightly rejected the application which does not warrant any interference.

11. Having heard learned counsel for the respective parties and on perusal of the material available on the record, the question falls for consideration of this Court is, whether the trial Court can exercise its power under Section 216 of the Code to review its order and delete the charges already framed ?

12. Before proceedings ahead, it would be apt to reproduce Section 216 of the Code and relevant extracts of the decision of the Apex Court in the case of Dr. Nallapareddy Shridhar Reddy Vs. State of Andhra Pradesh & Anr. [(2020) 12 SCC 467], wherein, the Apex Court explained the law so far scope and ambit of Section 216 of the Code is concerned :

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Section 216 of the Cr.P.C.:-

Court may alter charge.--(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

13. In the case of Dr. Nalapareddy Shridhar Reddy (supra), the Apex Court, referring the various decisions, held that, trial Court has exclusive and wide ranging power to change or alter any charge at any time before judgment is pronounced, upon satisfaction that, there is an omission in framing of charge or if upon prima facie examination of the material brought on record form a presumptive opinion as to the existence of factual ingredients constituting the alleged offence and while dealing with the issue, the Court must exercise its power judiciously. Relevant extracts of paras 16, 17, 18, 19, 20 and 21 read as under:-

"16 The decision of a two-judge Bench of this Court in P Kartikalakshmi v Sri Ganesh12, dealt with a case where during the course of a trial for an offence under Section 376 of the IPC, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 of the IPC. Justice F M

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Ibrahim Kalifulla, while dealing with the power of the Court to alter or add any charge, held:

"6. ... Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is 12 (2017) 3 SCC 347 exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law." (Emphasis supplied).

17 In Anant Prakash Sinha v State of Haryana13, a two judge Bench of this Court dealt with a situation where for commission of offences under Sections 498A and 323 of the IPC, an application was filed for framing an additional charge under Section 406 of the IPC against the husband and the mother-in law.

18. After referring to various decisions of this Court that dealt with the power of the Court to alter a charge, Justice Dipak Misra (as the learned Chief Justice then was), held: "18. ... the Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence 13 (2016) 6 SCC 105 comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the Court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards

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in Section 216 CrPC. It is the duty of the trial Court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial..." (Emphasis supplied)

18 In CBI v Karimullah Osan Khan14, this Court dealt with a case where an application was filed under Section 216 of CrPC during the course of trial for addition of charges against the appellant under various provisions of the IPC, the Explosives Act 1884 and the Terrorist and Disruptive Activities (Prevention) Act 1987. Justice K S P Radhakrishnan, speaking for the Court, held thus: "17. Section 216 CrPC gives considerable power to the trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused.

18. Section 216 CrPC confers jurisdiction on all Courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub- sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court." 14 (2014) 11 SCC 538 (Emphasis supplied). 19 In Jasvinder Saini v State (Govt of NCT of Delhi)15, this Court dealt with the question whether the Trial Court was justified in adding a charge under Section 302 of the IPC against the accused persons who were charged under Section 304B of the IPC. Justice T S Thakur (as he then was) speaking for the Court, held thus: "11. A plain reading of the above would show that the Court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the Court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the Court after commencement of the trial.

There can, in the light of the above, be no doubt about the competence of the Court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section

216. It is all the same trite that the question of any such addition or alternation would generally arise either because the Court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the

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commencement of the trial having regard to the evidence that may come before the Court." (Emphasis supplied)

20. From the above line of precedents, it is clear that Section 216 provides the Court an exclusive and wide-ranging power to change or alter any charge. The use of the words "at any time before judgment is pronounced" in Sub-Section (1) empowers the Court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the Court there 15 (2013) 7 SCC 256 was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the Court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges. The Court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the Court's power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Sub-Section (4) accordingly prescribes the approach to be adopted by the Courts where prejudice may be caused.

21 The appellant has relied upon a two-judge Bench decision of this Court in Onkar Nath Mishra v The State16 to substantiate the point that the ingredients of Sections 406 and 420 of the IPC have not been established. This Court while dealing with the nature of evaluation by a Court at the stage of framing of charge, held thus: "11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not 16 (2008) 2 SCC 561 a ground for convicting the accused has been made out.

At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence." (Emphasis supplied)."

14. In the case on hand, the learned Special Court had given an opportunity of being heard to the accused before framing the

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charge. The applicant accused before framing the charge, moved an application under Section 227 of the Code praying to discharge him from all charges, which came to be rejected by the learned Special Court and directed that the charge be framed under Section 228 of the Code vide its order dated 23.08.2019.

Proceedings before the High Court (Criminal Revision Application No.1650/2019)

15. The applicant being aggrieved by the order of rejection of his discharge application, filed revision application before the High Court being Criminal Revision Application No.1650/2019, wherein, the applicant had raised the specific contention that Section 21 of the NPDS Act has no application. On this issue, this Court has called for the record of Criminal Revision Application No.1650/2019, wherein, the applicant had raised the present issue in the memo of petition, more particularly in Ground I, which reads as under:

"The Ld. Special Judge while framing charge below Exh. 59 in Spl. NDPS Case no. 3 of 2018 has invoked Sec. 21 of the NDPS Act by indicating that the Opium seized from Room No. 305 of Lajwanti hotel has morphine content of 0.9 percent & "Opium derivatives" is defined under sub clause (e) of Clause XVI of Sec 2 of NDPS Act where it indicates "all preparation containing more than 0.2 per cent of morphine or containing any directly morphine and clause XI of Section 2 of NDPS act define "the manufactured drug" and therefore the contraband article seized is a "manufactured drug" and hence punishable u/s. 21 of the NDPS Act.

The Ld. Special Judge ought to have seen that the definition of "preparation" in clause (XX) of Sec 2 of NDPS Act, in relation to narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances. The word "all preparations"

mentioned in the definition at sub clause (e) clause XVI of Sec 2 of NDPS Act, means preparation as defined in clause (XX) of Section 2 of the Act meaning thereby by that preparation means any drug or substance in a mixture in dosages from or in any solution or containing one or more such drugs or

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substances. It does not cover opium in natural form as mentioned by report of chemical analysts.

Thus the Ld. Special Judge ought to have seen that, the 1.0. namely Shri Virendra Singh Yadav, Superintendent of Police, Admin. CID Crime, Gandhinagar sent a letter addressing Assistant Director cum Assistant Chemical Examiner, FSL, Ahmedabad seeking clarification on certain aspect pertaining to both the FSL report dated 15-7-1996 & 23-09-1996 and the most important query raised was vide point no. 3 which reads as under:

As per FSL report , Whether the Mudamal article no. 1 or 2 is Natural Opium or Prepared Opium whereby Assistant Director cum Assistant Chemical Examiner, Gujarat wrote a reply addressed to Superintendent of Police (Administration) CID Crime & Railways, Gujarat State indicating that as per Botanical Examination the Opium found can be considered as Natural Opium.

Thus the Ld. Special Judge ought to have seen that in view of the clear opinion of chemical analysts, that the muddamal was opium in natural form and in view of the fact that at the chemical analysts do not say that it was either a "preparation", as defined in clause (XX) of Section 2 or opium derivative as defined in clause (XVI) of Section 2 or "a manufactured drug" as defined in clause (Xl) of Section 2, as also it cannot be said to be part of any manufacturing process in relation to drug or psychometric substance as defined in clause (X) of Section 2, the seized contraband can never be said to be opium derivative or "a preparation" or "a manufactured preparation" or "a manufactured drug" and hence Section 21 NDPS Act has no application."

16. In view of the above, it appears that, the issue raised herein agitated by the applicant accused herein.

17. A bare perusal of the order passed in revision application, it appears that, the learned counsel for the applicant had argued on the issue for invoking Sections 17, 18 and 29 of the NDPS Act and other sections of IPC. The said arguments had been noted by this Court. The extracts of relevant arguments noted and observed by this Court reads as under:-

(i) It is further argued that learned Special Judge failed to consider of invoking Sections 17, 18 and 29 of NDPS Act.....

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(ii) That, learned Special Judge wrongly framed the charge at exh:59 by invoking Section 21 of the NDPS Act indicating that the opium seized from Room No.305 of Lajvanti Hotel has morphine content of 0.9 % and opium derivatives is defined under Section 3 of clause XVI of Section 2 of the NDPS Act, as it cannot be said to be a part of manufacturing process....

(iii) That, in absence of any independent witness or any material no charge under Sections 17, 18, 21, 27(A), 29, 58(1) and 58(2) of the NDPS Act can be framed against the applicant and further submitted that, none of the provisions of Sections 116, 167, 204, 343, 465, 471, read with Sections 120(b) & 34 of IPC can ever be invoked against the present applicant.

18. In the revision application against the order of discharge, a coordinate Bench of this Court vide judgment dated 21.05.2020 rejected the revision, wherein, in para 43 it is held as under:-

"43. In the case on hand, learned Special Judge has assigned detailed reasons for examining the discharge application filed under Section 227 Cr.PC. It is clear from his order that after consideration of relevant materials, charge had been framed. After evaluating the material produced by the prosecution and after considering the probability of the case, learned Special judge satisfied by the existence of several grounds against the applicant and framed the charge. Whether the materials on hand of the prosecution are sufficient or not are important for Page 63

R/CR.RA/1650/2019 CAV JUDGMENT trial. At this stage, it cannot be claimed that there is no sufficient ground for proceedings against the applicant and discharge is the only remedy. Further whether the trial will in end conviction or acquittal is also immaterial, all these relevant aspects have carefully been considered by the learned Special Judge dismissing the discharge application filed by the applicant herein. This Court is fully agreed with the said conclusion."

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19. In view of the aforesaid, it is evident that, the issue raised by way of filing the petition under Section 216 of the code, the same had been extensively dealt with by the learned trial Court as well as this Court. It is true that, Section 21 and 27(A) of the NDPS Act and Sections 465 and 467 of IPC were not part of the chargesheet, but liberty was granted to the prosecution by the trial Court to add the Sections at the stage of opening of the prosecution case and accordingly, in the draft charge, submitted by the prosecution, the aforesaid sections have been mentioned therein and after considering the material on record and hearing the parties, the learned Trial Court has framed the charges at Exh:59.

20. Undisputedly, the applicant accused had moved an application at Exh:56 before the trial Court stating inter alia that, the sections 21, 27(A), of the NDPS Act are not attracted in the present case and therefore, before framing the charge, he may be given an opportunity of hearing. The learned trial Court after hearing the parties, rejected the application observing as under:-

"3. The Ld.Adv. for the accused no. 1 and 2 has submitted orally that certain sections of the NDPS Act and the Indian Penal Code which are not there in the charge-sheet has been added in the Draft-Charge and hence with respect to these contention they want to make submissions as the same is not made out from the materiel of the Charge-sheet submitted in the Court by the Investigating Officer. The application at Exh:56 was allowed by this Court by over-ruling the objection of the learned Special P.P by passing order on Exh:56 as it deemed fit to the Court that since charge was being framed today against accused no.1 and 2, adhering to the principles of fair trial that an opportunity is provided to opponent no.1 and 2 for a precharge hearing and subsequently the arguments were put forward by the accused no.1 and 2 and also by the ld. Sp.P.P.

Arguments putforwarded by Ld. Adv for accused no.1 and 2.

4. The learned Ld. Adv. For the accused No.1 has submitted that on perusal of the police papers there is no allegation with respect to the some offenences concerned and

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there is no evidence with respect to them and therefore, the charge cannot be framed with respect to those sections. The learned Adv. Has submitted that no charge can be framed with respect to sections 120(b), 116, 119, 167, 204, 343 & u/s. 17, 18, 29, 58(2), 59(b) of the NDPS Act. The learned Advocate has submitted that in the draft charge, there is addition of certain section like section 21. 27A of the NDPS Act, which are not attracted on perusal of the charge-sheet and therefore, charge with respect to these sections cannot be framed.

5. The ld. Advocate for the accused No.2 has submitted that the chargesheet filed by the Special investigation Team on 02.11.2018 is for the sections 120(b), 116, 119, 167, 204, 343 and under Sections 17, 18, 29, 58(2) , 59(B) of the NDPS Act, whereas, in paragraph No.6 and 7 of the draft charge following section 109, 465 of Indian Penal Code, 1860 are added for which there is no evidence in the charge sheet and that was not the case of the SIT. Further in paragraph no.8 of the draft charge following Section 34, 471 of Indian Penal Code, are added for which there is no evidence in the chargesheet and that was not the case of the SIT. In para 11 and 12 of the draft charge sections 21, 27A, 58(1) of the NDPS Act are added for which there is no evidence in the chargesheet and that was not the case of the SIT.

6. The ld. Adv. Has vehemently submitted that the sole test would be whether the contraband seized is manufactured drug or not. The ld. Adv. Has referred to sections 21, 2(11), 2(15), 2(16) and argued that the seized contraband does not fall within the definition of manufactured drug and neither it is opium derivative and therefore, section 21 is not attracted. The ld. Adv. Has drawn my attention on the FSL report at page 217 and also to the provided by the FSL wherein as per the say of the Ld. Adv., the word "Kudarati Chhe tem kahi Sakay" and therefore, it is natural opium and would fall under section 21.

7. The ld. Adv. Has submitted that the section 27A has to be read with Section 27 and the financing a illicit traffic contemplated in section 27A is related to personal consumption and the definition of illicit traffic is to be construed in conjoint reading of Section 27. The ld. Adv. Has submitted that procuring or purchasing as has been alleged in the statement of Malabhai Rabari would not fall within the definition of illicit traffic and furthermore the procurement has to be with a dominant purpose of trafficking and evidence of same is absent in chargesheet and therefore, section 27A of the NDPS Act is not attracted.

8. The Ld. Adv. For the accused No.2 has argued that the prosecution has legally stopped from suggesting framing of charge on those sections of which facts and ingredients are absent in chargesheet and the case for such section is not made out by the police investigation for which the chargesheet is submitted by the Investigating office. Therefore, the prosecution is legally stopped from parting away with the facts

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and evidence of the case and putting up its own version and implanting facts for framing of charges.

9. The Ld. Adv. Has submitted that under Section 288(a) of C.r.P.C even after rejection of the application under section 227, there is a separate compartment in section 228 of Cr.P.C which states that if there is ground for presuming and hence, the Court can grant an opportunity for hearing to the accused before the framing of the charge and hearing the accused with respect to the sections under which the charge can be framed. Arguments putforward by Ld. Sp./PP on behalf of the State.

10. The Ld. Sp.PP has submitted that present application vide Exh:56 has been preferred as delaying tactics by the accused No.2 and not cooperating in trial though directed by the Hon'ble High Court. The accused No.2 giving application one after another just to see that the trial is delayed and these applications are full of malice and mala fides. The Ld. Sp.PP has submitted that the Ld. Court has already decided Exh:11, Ex:22, wherein all these contentions have already been raised after giving full opportunity and time to the accused. Further, the opportunity to the accused was also provided at the time when the prosecution has open its case under section 226 of the Cr.P.C. Therefore, the ld. Sp.PP still holds the ground that the application moved at Exh:56 is not covered by the scheme of the cr.P.C. and neither within the ambit of Section 227 and 228 of the Cr.P.C as mentioned in the Exh:56. Further, the accused No.2 had filed discharge application vide Exh:11 which has already been decided by this Court and therefore the present application is termed as review and the same is not envisaged in Cr.P.C. The Ld. Sp.PP has drawn my attention to the written arguments furnished by accused No.2 at page 32, 33 and 34, wherein, points with respect to the contraband has already been raised with respects to "manufactured drugs" and "illicit traffic". The accused No.2 had remedy to challenge the order passed by the Court at Exh:11, but till date same has not been done and today a pursis which declares that they intends to challenge the order has been tendered. The ld. Sp.PP has vehemently argued that there is no provision for review and the only purpose is to delay the trial and these application are used as circumventing devices which lacks bona fides and therefore the application at Exh:56 is not maintainable at all.

11. The Ld. Sp.PP has submitted that at the time of hearing of Exh:22 the accused were given audience and all contentions with respect to contraband and relevant sections were raised at that point of time by both the accused and the Hon'ble Court had granted the prosecution liberty to place the material before the Court for addition of the sections and the order passed b the Hon'ble Court has till date not been challenged either by the prosecution or by any of the accused. Therefore, based on the material placed before the Hon'ble

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Court, the draft charge submitted by the prosecution at mark- 22/2 can be adopted.

12. The Ld. Sp.PP has read over section 227 and 228 of the Criminal Procedure Code and submitted that the words occurring in section 228 i.e. "after such consideration and hearing as aforesaid leads to section 227, wherein the words used are "if upon consideration of the record of the case and document submitted therewith and after hearing the submission of the accused and after hearing the submission of the accused and this behalf and therefore, on conjoint reading of sections 227 and 228, no stage is n ow envisaged for further hearing of the accused when they have availed all the opportunities and the rights envisaged in these sections. Therefore, the ld. Adv. Has submitted that the Court should proceed towards the framing of charge.

//REASONS//

13. The argument put forward by the accused that the prosecution is legally estopped to go beyond the facts and evidence gathered by the investigation Agency and pray for charges to be framed for the sections which are not mentioned in the chargesheet by the Investigating Officer is not tenable in law. Consequent upon the material placed upon the chargesheet if the Court deems it fit then the Court can either frame charges for the sections for the sections whose ingredients are made out from the chargesheet or can decide not to frame the charges for those sections for which material is not coming forth in the chargesheet and even though the IO might have added those sections in the chargesheet. On going through the material placed before the Court and there being ingredients of relevant sections the Court is empowered to frame charges. The Court is empowered to frame the charges for the sections not mentioned in the chargesheet from the material of the investigation. The Supreme Court in the case of Soma Chakravarty Vs. State (th. CBI) reported in 2007 AIR SCW 3683 has held as under:

"20. 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."

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14. The Supreme Court in the case of State of Bihar Vs. Ramesh Singh reported in AIR 1977 SC 2018 has held as under:-

"......strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial Stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial....."

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the trial judge in order to frame a charge against the accused."

15. The Ld. Adv. Has raised the contention with respect to "manufactured drug" as defined under section 211 or not. It would be apposite to refer to the FSL report from page 218 where the morphine content of the contraband seized is more than 0.2 % and therefore, it would be covered under the definition of opium derivative. The Hon'ble Hgih Court has dealt with theis aspect while deciding the bail application of accused no.2 and given detailed finding with respect to that. It would be apposite to refer to the judgment of Amarsingh Ramjibhai barot Vs. State of Gujarat (reported in (2005) 7 SCC 550], wherein, the expression manufactured drug and opium derivatives have been discussed.

16. While deciding the Exh.11 i.e.the discharge application filed by accused no.2 this Court has exhaustively referred to the statements of the witnesses which bring out the charges with respect to criminal conspiracy financing procurement and so on. These statements are to be tested at trial and prima facie attract the Section 27A of the N.D.P.S. Act as in Section 2(viii-B)(iii) the words used therein are "purchase and use" and thus, this Court has already held that prima facie that as a part of criminal conspiracy, the contraband was planted to create a false case and for that purpose the finance was provided by the accused no.2 and whole conspiracy was hatched which included accused no.1 and thus, there was use of the procured contraband and thus, this would be covered within the illicit traffic and the argument put

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forward by Ld.Adv. for accused no.2 that Section 27A of N.D.P.S.Act would be guided by Section 27 is not tenable. Therefore, as per the aforesaid discussions, following order is passed:-

//order// The application at exh:56 is hereby rejected."

21. In view of the aforesaid background, it appears that, the issue of invoking provisions of NDPS Act and IPC as raised in the present revision having been extensively dealt with by the learned Special Court and by the High Court. It is required to be noted that, the applicant accused was arrested on 05.09.2018 and chargesheet against him came to be filed on 02.12.2018 and thereafter, on 18.09.2019, charges have been framed at Exh:59 by the learned Special Court. The trial is yet to commence as the applicant under one pretext or other filed the applications before the trial Court as well as before this Court. Thus, it is evident that, after framing the charges, the trial Court is unable to record the evidence of the witnesses.

22. In view of the aforesaid background facts and considering the legal provision as well as the dictum of law as laid down in the case of Dr. Nallapareddy Shridhar Reddy (supra), this Court is of considered view that, the provision of Section 216 of the Code only speaks of alteration or addition to any charges and there is no reference to the deletion of any charge. It is not the case of the applicant that, he proposes to either addition or substitution of the other sections. After careful consideration of the application at Exh:139 filed under Section 216 of the Code and its prayer clause shows that, the applicant is praying for deletion of the charges mentioned in the application, on the ground that the charges framed are defective and there is no material to substantiate the same. This Court is not agree with the submission advanced by learned counsel Mr. Shah for the applicant. The learned Trial

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Court has rightly rejected the application observing that, the issue had been confirmed by the High Court in the revision proceedings and further observed that considering the material evidence on record, the charges having been properly framed at Exh:59 as there is no new material on record to alter the charges. Thus, it is seen that the learned trial Court has rightly rejected the application and reasons assigned by the learned trial Court based on the material on record and in consonance with the statutory provisions and law laid down by the Apex Court in various decisions as referred in the case of Dr.Nallapareddy Shridhar Reddy (Supra).

23. Now, reverting back to the facts of the present case, it seems that the trial is yet to commence and it has not been commenced because of conduct and attitude of the applicant accused. Once a charge has been framed under Section 228 of the Code, the trial has to proceed according to the procedure. In the instant case, by invoking Section 216 of the Code, the applicant intends, process to back-gear, praying inter alia that, Section 21 and 27(A) of the NDPS Act and Sections 465, 467 r/w. 120(b) of the IPC be deleted, which implies his discharge from the aforesaid charges, under the head of alteration of the charge which cannot be legally permitted. Section 216 does not empower the Court to discharge the accused in respect of the charges already been framed. Thus, by invoking Section 216 of the Code, the applicant prayed to review the decision of framing of the charge. It is settled that, the criminal Court has no power to review its own order. It is also settled principle of law that what cannot be done directly also cannot be done indirectly. It is pertinent to note that, Section 216 of the Code, does not provide for deletion of charge and the legislature has wisely

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not added the word "delete". Thus, once the charge framed, it cannot be deleted. In the present case, after framing the charge at Exh:59, there is no progress in the trial and therefore, no any fresh material before the Court so as to enable the Court to alter the charges and therefore, judicial discretion having been rightly exercised by the trial Court while rejecting the application.

24. In view of the aforesaid discussions, submissions advanced by learned counsel for the applicant having not acceptable and it is meritless.

25. After perusal of the record and the submissions advanced by learned Public Prosecutor Mr. Mitesh Amin, it appears that, the present application filed by the applicant is misconceived which amounts to abuse of the process of the Court. This Court is of considered view that, the applicant has suppressed the material facts about the issue raised by him in the revision filed before this High Court. The applicant is Ex-IPS Officer and facing various litigation filed against him or filed by him in the various subordinate Courts and High Court of the State of Gujarat. In the present case, the issue of invoking provisions of the NDPS Act and penal law have attained finality, despite of that, the applicant has agitated the same issue by invoking section 216 of the Code which in fact is not remedial to the applicant.

26. In the case of Nooruddin Vs. Dr. K.L.Anand [(1995) 1 SCC 242], the Apex Court held that "... equally judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice".

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27. In Buddi Kota Subbrarao Vs. K. Parasaran [(1996) SCC 2687], the Apex Court has held that, no litigation has a right to unlimited drought on the Court and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a license to file misconceived and frivolous petition.

28. In Sabia Khan & Anr. Vs. State of U.P. [(1999) 1 SCC 271], the Apex Court held that, filing totally misconceived petition amounts to abuse of process of the Court and such litigant is not required to be dealt with lightly.

29. In Abdul Rehman Vs. Prasoni Bai & Anr. [(2003) AIR SCW 14], the Apex Court held that, wherever a Court comes to conclusion that the process of Court is being abuses, the Court would be justified in refusing to proceed further and refused the party from pursuing the remedy in law.

30. In the aforesaid circumstances, the trial Court is directed to ensure that, the trial is concluded expeditiously.

31. In view of the foregoing reasons, this Court does not find any infirmity either legally or factually in the impugned order passed by the Court below, which does not call for any interference. Accordingly, the revision application stands dismissed.

Sd/-

(ILESH J. VORA,J) SUCHIT