Gujarat High Court

Kafil Ahmed S/O Wakil Ahmed vs State Of Gujarat on 5 January, 2021

Bench: B.N. Karia

     R/CR.RA/214/2017                                        CAV JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 214 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2   To be referred to the Reporter or not ?                              NO

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

4   Whether this case involves a substantial question                    NO

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

========================================================== KAFIL AHMED S/O WAKIL AHMED Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR NIKHIL S VYAS(5663) for the Applicant(s) No. 1 MR DEVANG VYAS(2794) for the Respondent(s) No. 2

==========================================================

CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

Date : 05/01/2021

CAV JUDGMENT

By way of present application, applicant has requested to

quash and set aside the order passed below Exh.11 by the

Court of learned Additional Sessions Judge, City Civil and

Sessions Court, Court no. 8, Ahmedabad rejecting the

discharge application and further prayed to discharge the

applicant-accused in connection with F. No. NCB/AZU/CR-

02/14 which is numbered as NDPS Sessions Case No. 4 of

2014 pending in the court of learned Additional Sessions

Judge, City Civil and Sessions Court, Court No. 8, Ahmedabad.

The brief facts of the present case are as under:

That, Shri Sajjansingh, Intelligence Officer, Narcotics

Control Bureau, Ahmedabad filed a complaint against the

applicant before the court of learned City Civil and Sessions

Court, Ahmedabad as F. No. NCB/AZU/CR-02/2014 which

was numbered as NDPS Sessions Case No. 4/2014 under

Sections 22, 25A, 29 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 on 11.08.2015 in which it is interalia

stated that the applicant in pursuance of a conspiracy indulged

himself along with Mayur Trivedi-accused no.1 in

manufacturing and trafficking 4.12 Kgs of Pseudoephedrine

Hydrochloride powder and 0.410 kgs and 0.280 kgs of

Amphetamine seized from the residential premises of the said

Mayur Trivedi-accused no.1 situted at House No.2, 2C of Jay

Vijay Apartment, Sardar Chowk, Krishna Nagar, Ahmedabad

and also 0.561 kgs of Ehedrine Hydrochloride tablets seized

from the premises Praful Niwas, Nava Rasta, Mandvi ni Pole,

Ahmedabad and have committed the aforesaid offence. That

applicant was in Jaipur Jail in respect of some other offence at

the relevant point of time is joined as accused no.2 in the

present case. He has prayed for appropriate order/instruction

to the Superintendent, Central Jail, Jaipur and Special NDPS

Court, Jaipur accordingly so that the applicant may bring

before Ahmedabad Court on each and every date. That, the

applicant is no where connected or not knowing and nothing

to do with the persons whose statements are recorded by the

complainant. Therefore, the applicant preferred an application

vide Exh.11 under Section 227 of the Code of Criminal

Procedure for discharging him from the charges levelled

against him before the trial court which was rejected on

21.12.2016 and thus, applicant has approached this court by

way of present application.

Heard leaned advocates for the respective parties.

It was submitted by learned advocate for the applicant

that the applicant has no other nick name and/or is not known

by name as Javed of Delhi or any other name as alleged in the

impugned complaint. That, applicant is a cloth merchant and

is income tax payer. That he is used to visit Ahmedabad for his

business purpose and as he is belonged to Muslim community,

he is falsely implicated in the present case on the basis of the

statement of the said Mayur Trivedi -accused no.1 who

referred the alleged man as Javed of Delhi. That applicant did

not own the sim card and mobile number as allegedly referred

in the impugned complaint. That, the impugned order is

illegal, unreasonable, unwarranted and against the settled

position of law and against the principles of natural justice.

That applicant is innocent and is falsely implicated in the

present case. That, no identification parade in respect of the

applicant as required under Section 9 of the Indian Evidence

Act was made. That accused no.1 referred to the person

named as Javed of Delhi in his statement and applicant is

belonged to particular community, he was targeted and

victimized cleverly by the complainant party. During the

period of alleged incident, applicant was in judicial custody in

respect of any other offence and was in Jaipur Jail. That he is in

no way connected with the present crime and he has nothing

to do with the persons named in the impugned complaint

particularly Mayur Trivedi-the accused no.1. That, entire

narcotics materials and/or substances are seized and recovered

from the said Mayur Trivedi-accused no.1 and not from the

custody and/or premises of the applicant. That, the accusation

made in the impugned complaint against the applicant-

accused are baseless and without any incriminating material,

which would not require to conduct the trial against the

applicant-accused in this case and hence, there are no

convincing reasons to frame the charge against the applicant.

That, the learned Trial Judge has seriously and materially erred

in rejecting the said discharge application of the applicant-

accused and thereby seriously and materially failed to consider

in its right perspective the facts, factors and circumstances of

the present case along with the various citations quoted before

him. In support of his arguments, learned advocate for the

applicant has placed reliance in the case of "Raju Premji v.

Customs NER Shillong Unit" reported in 2009 CRI.LJ

3972; "Ritesh Chakarvarti v. State of

Madhyapradesh" reported in JT 2006(12) 416 and

"Union of India v. Bal Mukund & ors." reported in

2009 CRI.LJ 2407 and submitted to allow present revision

application and quash the impugned order dated 21.12.2016.

On the other side, learned Central Government Standing

Counsel Mr. Devang Vyas has submitted that on the basis of

the information received on 06.03.2014, NCB Zonal Unit

Jodhpur conducted a house search in Jhotwar area of Jaipur

and recovered 18 Kg of Charas concealed in the house and car,

two persons namely Fafil Ahmed @ Javed and Mukesh son of

Ramprasad were detained and panchnama was prepared.

Thereafter, the officers of the Ahmedabad Zonal Unit of NCB

carried out search of the residential premises of Mayur Trivedi

with two independent panch witness on 07.03.2014. During

search, Ephedrine was found for which Mayur Trivedi

informed that it was supplied to him by Javedbhai and

Maharjbhai five months back and on testing with the help of

Field Precursor Detection Kit, it gave positive result for

Ephedrine and yellow colour substance was found as positive

result for Amphetamine. Then, statement of Mayur Trivedi was

recorded under Section 67 of the NDPS Act wherein he

voluntarily stated that material was supplied to him by one

Maharajbhai of Mumbai and Javedbhai of Delhi. Mayur

Trivedi further stated that in January 2014, Javed came to

Ahmedabad and met him at Vijay Guest House near Geeta

Mandir Bus Stand and he handed over him two packets of

Amphetamine and told him that Maharajbhai will come to

Ahmedabad and take away this Amphetamine and will pay his

dues. It is further argued that statement of Mohmed Saleem

s/o Valimahmed Chandnivala, Chemist of CPM Enterprise was

recorded under Section 67 of NDPS Act on 11.03.2014 and

from his statement, it was found that CPM enterprise was in

possession of the valid license for manufacture of Ephedrine

tablets and other related documents. That call details of both

the persons namely Mayur Trivedi and Javed were obtained

from the service provider companies and on analysis of call

details record, it was found that both were in contact from July

2013 to first week of March 2014. That, statement of Kafil

Ahmed was recorded in which he admitted having met Mayur

Trivedi in Hotel Vijay Guest house in Ahmedabad. That,

Amphetamine is a Psychotropic Substance under NDPS Act

1985 and trafficking of Amphetamine is punishable under

Section 22 of NDPS Act 1985. Commercial quantity for

Amphetamine is 50 grams whereas the quantity of

Amphetamine seized in present case was 0.690 Kilogram

which is well above the commercial quantity. In support of his

arguments, learned Central Government Standing Counsel for

the respondent no.2 has placed his reliance in the case of

"State of Madhya Pradesh v. Mohanlal Soni", reported in AIR

2000 SC 2583 and "Central Bureau of Investigation,

Hyderabad v. K. Narayan Rao" reported in (2012) 9 SCC 512

Ultimately it was requested to dismiss present application, as

learned City Civil and Sessions Court has committed no error

in dismissing the application of discharge from the charges

preferred by the applicant.

Learned APP for the respondent-State has supported the

arguments advanced by learned Central Government Standing

Counsel for the respondent no.2 and requested to dismiss

present application.

Having heard learned advocate for the applicant, learned

Central Government Standing Counsel for the respondent no.2

and learned APP for the respondent-State, it appears that

complaint was filed before the City Civil and Sessions Court,

Ahmedabad being F. No. NCB/AZU/CR-02/2014 which was

numbered as NDPS Sessions Case No. 4/2014 under Sections

22, 25A, 29 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 on 11.08.2015. It is alleged in the

complaint that the applicant, in pursuance of the conspiracy

indulged himself along with Mayur Trivedi-the accused no.1

in manufacturing and trafficking 4.12 kgs of pseudo-

ephedrine Hydrochloride powder and 0.410 kgs and 0.280 kgs

of Amphetamine seized from the residential premises of the

said Mayur Trivedi-the accused no.1 situated at house no.2, 2C

of Jay-Vijay Apartment, Sardar Chowk, Krishna Nagar,

Ahmedabad and also 0.561 kgs of Ephedrine Hydrochloride

tablets seized from the premises Prafful Niwas, Nava Rasta,

Mandvi ni Pol, Ahmedabad and have committd the aforesaid

offences. The applicant, as he was in Jaipur Jail in respect of

some other offence at the relevant point of time, is joined as

accused no.2 in the present case. He prayed for appropriate

order/instruction to Superintendent, Central Jail, Jaipur and

Special NDPS Court, Jaipur accordingly so that the applicant is

brought before Ahmedabad Court on each and every date.

The question is to be considered and answered in present

revision application is to whether in the present case, applicant

was entitled to be discharged from the offence under Sections

22, 25A, 29 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 and whether learned City Civil and

Sessions Court has committed an error in rejecting the

discharge application.

Hon'ble Apex court in case of "Union of India Vs. Prafulla

Kumar Samal & Another, (1979) 3 SCC 4 had occasion to

consider Section 227 Cr.P.C., which is Special Judge's power to

pass order of discharge. After noticing Section 227 in

paragraph No.7, Hon'ble Apex Court held following:-

"7.XXXXXXXXXX The words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

After considering the earlier cases of this Court, in paragraph No.10, following principles were noticed:-

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

Therefore, it is clear that while considering the discharge

application, the Court is to exercise its judicial mind to

determine whether a case for trail has been made out or not. It

is true that in such proceedings, the Court is not to hold the

mini trial by marshalling the evidence. After noticing the

nature of offence, jurisdiction is to be exercised by the Court

at the time of discharge. We now revert back to the facts of the

present case, where taking an allegation of complaint as

correct on the face of it, whether offences under Sections 22,

25A, 29 of the Narcotics Drugs and Psychotropic Substances

Act, 1985 is made out, is a question to be answered.

From the investigation papers produced on record, it

appears that information was received on 06.03.2014 and on

the basis thereof, NCB Zonal Unit Jodhpur conducted a search

in the house situated at Jhotwar area of Jaipur and recovered

18kg of Charas concealed in a house and car. Two persons

namely Kafil Ahmed @ Javed and Mukesh S/o. Ramprasad

were detained and panchnama was prepared. Thereafter,

action upon the above information, Zonal Unit of Narcotics

control Bureau, Ahmedabad carried out search through its

officers at the residential premises of Mayur Trivedi (accused

no.1) with two independent panchas on 7.3.2014. During the

course of search of the residential house of the accused no.1,

Ephedrine was found. The co-accused, in his statement, under

Section 67 of the Act, informed that it was supplied to him by

Javedbhai and Maharajbhai before five months and detection

thereof was found positive for Ephedrine. On making further

search, yellow colored substance was found positive result for

Amphetamine. On enquiry about the processing of Ephedrine

to convert it into Amphetamine, it was informed by the co-

accused Mayur Trivedi that he processed this material in

rented premises at Mandvini Pol, Manik Chowk Ahmedabad. It

was the same premises which was informed by Jodhpur Zonal

Unit of NCB in the letter forming the basis of information.

Further search was conducted by the officers of the

Department of the premises of Praful Niwas, Mandvini Pol and

lot of material was found including Ephedrine Tablets. The co-

accused Mayur Trivedi also stated voluntarily in his statement

under Section 67 of NDPS Act 1985 and accepted that 4.120

kg Ephedrine and 280 gm. 410 gm. Amphetamine in two

different packings was recovered from his house. As per his

statement, this material was supplied to him by one

Maharajbhai of Mumbai and Javedbhai of Delhi. He was asked

by the suppliers to convert this material into Amphetamine and

they promised him to pay rupees five thousand for each

kilogram of Amphetamine. As per the further statement of co-

accused, in January 2014, Javed came to Ahmedabad and met

him at Vijay Guest House near Geeta Mandir bus stand. He

handed over him two packets of Amphetamine saying that

Maharajbhai will come to Ahmedabad and take away this

Amphetamine and will pay his dues. The co-accused Mayur

Trivedi has also stated that he procured Ephedrine Tablets for

giving to Javedbhai as he demanded but later on he denied to

take. He was arrested on 8.3.2014 for his involvement in

possessing and storing of Ephedrine, a controlled substance, in

contravention of Narcotic drug and Psychotropic Substance

Order 2013 made under Section 9A of the Narcotic Drugs and

Psychotropic Substance Act 1985 and manufacturing of the

Amphetamine in conspiracy with others.

From the investigation papers, it appears that a report

u/s. 57 of the NDPS Act was supplied by the officers within

stipulated period. The samples drawn during panchnama were

sent to CRCL, New Delhi on 10.3.2014 for chemical analysis. It

also appears that statement of Mohmed Saleem S/o

Valimahmed Chandnivala Chemist of CPM Enterprise was

recorded under section 67 of NDPS Act 1985 on 11.3.2014.

The statement of Nimesh Praful Chandra Trivedi owner of

Praful Niwas Complex was also recorded under section 67 of

NDPS Act 1985 on 24.3.2014, It also appears that statement of

Harsukhbhai Laljibhai Patel, owner of Vijay Guest House was

also recorded wherein he has confirmed the fact that a person

named Kafil Vakil Ahmed used to stay in guest house. Xerox

copy of Kafil Ahmed's Photograph was shown to him and he

identified the same stating that whenever Kafil Ahmed visited

the guest house a person used to come to meet him. It also

appears from the record that the details of both

persons/accused Mayur Trivedi and Javed were obtained from

the service provider companies, on analysis of call details

record, it was evident that both were in contact from July 2013

to First week of March 2014. A transfer warrant was requested

to central jail Jaipur, Kafil Ahmed @ Javed was produced

before the City Civil and Sessions Court No.3, Ahmedabad and

learned Judge of the Court, after going through the affidavit

and hearing the accused, was satisfied that accused namely

Kafil Ahmed was required to be arrested in NDPS Special Case

No. 4/2014 pending before the Court. In a statement recorded

of Kafil Ahmed, he has admitted that he had meeting with co-

accused Mayur Trivedi in hotel Vijay Guest House in

Ahmedabad. He has further admitted that he had sent his

trusted-man to the residence of co-accused Mayur Trivedi to

know the fact and it was informed by the wife of the co-

accused that what was recorded was not Ephedrine but

Finylpropandene, for which, co-accused had a license.

It also appears that another statement of Laxminarayan

Sharma was also recorded wherein he has stated that Kafil

Ahmed used to get book tickets with the same mobile number

and he also identified a photograph shown to him to be of Kafil

Ahmed who used to visit to get the tickets booked and to make

the payment.

During the investigation, it was also come on record that

Kafil Ahmed was detained in connection with the seizure of 18

kg charas from Jaipur to Jodhpur NCB and he had disclosed

before the NCB officers of Jodhpur that he had taken samples

of Amphetamine and Alprazolem from Mayur Trivedi and had

also given address located in Ahmedabad. Prima facie it

appears that Kafil Ahmed along with Mayur Trivedi and other

persons had entered into conspiracy of manufacturing of

Amphetamine and trafficking of Pseudeophedrine

Hydrochloride indulging in manufacturing of Amphetamine

and trafficking of Pseudoephedrine Hydrocloride and

EPHEDRINE Hydrochloride in violation of Section 8(C), 9A, 22

of NDPS Act 1985 and RCS Order 2013 punishable under

Section 29 read with 25A and 22 of NDPS Act 1985.

The learned City Civil and Sessions Court, Ahmedabad, in

its order, has observed in para 8 that:

"In the present case the accused is not only arrested most statement of co-accused there is sufficient evidence on the record. The present accused had paid visit to Ahmedabad several times and stayed in Vijay Guest House and contacted the mobile number of accused number 1 and call details is brought on record by the prosecution and therefore looking into facts and circumstances of the case following order is passed in which application was rejected.

From the record, it appears that prosecution has

sufficient evidence to involve the present applicant in

commission of offence. Present applicant had paid his visit to

Ahmedabad number of time and was staying at Vijay Guest

House and had a talk on the mobile number of the accused

No.1 from his cell phone. All the call details were brought on

record by the prosecution.

Considering the facts and circumstances of the case, this

Court is not satisfied to accept the prayer of the applicant to

quash and set aside the order dated 21.12.2016 passed below

Discharge Application Exh.11 by the learned Additional

Sessions Judge, City Civil and Sessions Court, Court No.8,