Aejaz Ismail Sayed vs Union Of India And Another
2021 Latest Caselaw 874 j&K

                           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                           AT JAMMU

                                                                        Reserved on:   30.07.2021
                                                                        Pronounced on: 13.08.2021

                                                                       CRM(M) No. 242/2020
                                                                       CrlM No. 1361/2020
                                                                       CrlM No. 869/2020

           Aejaz Ismail Sayed                                           ...Appellant/Petitioner(s)


                                   Through :- Mr. Rizwan ul Zaman, Advocate

                           v/s      <




           Union of India and another                                          .....Respondent (s)
           't




                                   Through :- Mr. Vishal Sharma, ASGI
           Coram:              HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                    JUDGMENT

1. The present petition has been filed by the petitioner for quashing

charges framed against him vide order dated 24.12.2019 by the court of learned

1st Additional Sessions Judge, Jammu (hereinafter to be referred as trial court) in

case, titled, 'Union of India Narcotic Control Bureau vs. Sheikh Rafi Bhai and

another'.

2. Brief facts necessary for the disposal of present petition are that the

complaint was filed by the respondent No. 1 against the petitioner and

respondent No. 2 for commission of offences punishable under sections 8, 20

and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

the Act) before the learned Sessions Judge Jammu, that was subsequently

transferred to the trial court wherein it was alleged that the complainant received

secret information from reliable sources on 20.11.2018 that a person, namely,

Sheikh Rafiq Bhai (respondent No. 2) who is a resident of Gujarat is coming to

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Bus Stand, Jammu from Kashmir Valley along with huge quantity of narcotic

drugs. The information was reduced in writing and placed before the Zonal

Director NCB Jammu, who, in turn, directed the Intelligence Officer to

constitute a team and take action vide office order dated 20.11.2018. On the

direction of the Zonal Director, the Intelligence Officer received the NCB seal

and left from the NCB Office Gandhi Nagar at about 1820 hours. On reaching

Bus Stand, Jammu, the Intelligence Officer approached three persons and

requested them to be independent witnesses for the search and other legal

formalities. Their request was turned down by the independent witnesses.

Thereafter, the Intelligence Officer notified his team members and requested

them to be independent witnesses under section 53 of the Act. The team led by

the Intelligence Officer at 2020 hours, intercepted a person who was carrying

two bags with him. The Intelligence Officer introduced himself by showing his

identity card and also introduced his team and both independent witnesses

present there. On enquiry, the intercepted person disclosed his name as Sheikh

Rafiq Bhai Musa Bhai S/o Musa Bhai (respondent No. 2). The Intelligence

Officer served notice under section 50 of the Act in writing and also verbally

informed the intercepted person regarding his proposed search and after

receiving the consent, the Intelligence Officer carried out personal search of

respondent No. 2 and nothing incriminating was recovered. However, twenty

packets of contraband were allegedly recovered from the two bags those were

being carried by respondent No. 2 and the same was found to be charas.

3. Thereafter, sampling under rules was conducted and the seized

contraband was sealed and necessary documents like panch-nama, seizure memo

and other documents were also prepared. It is further stated that Intelligence

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Officer issued notice under section 67 of the Act to the petitioner that was

received back undelivered and later on, the petitioner was arrested at Srinagar

Airport and handed over to the Intelligence Officer NCB Jammu. It is further

stated in the complaint that the petitioner has made voluntarily confessional

statement and based on the confessional statement, he was placed under arrest

under section 8, 20 and 29 of the Act on 04.05.2019. Learned trial court after

hearing arguments vide order dated 24.12.2019, framed charges against the

petitioner along with other accused for commission of offences under sections

8(c), 20 (b) (ii) (c) and 29 of the Act. The petitioner aggrieved of the framing of

charges has preferred the present petition for quashing order dated 24.12.2019

primarily on the ground that the confession of the petitioner is hit by section 25

of the Evidence Act and the same is not legally admissible.

4. Mr. Rizwan Ul Zaman, learned counsel for the petitioner stressed

that the only evidence against the petitioner is his statement under section 67 of

the Act and the same is not admissible in view of the judgment of the Apex

Court.

5. Mr. Vishal Sharma, ASGI has vehemently argued that the learned

trial court has rightly framed the charges against the petitioner.

6. Heard and perused the record.

7. The relevant portion of the complaint containing the allegations, on

the basis of which the petitioner has been arrayed as an accused is reproduced as

under:-

"That, notice u/s 67 of the NDPS Act 1985 was issued to one suspected person namely Sayyed Ijaz S/o Ismail R/o Third 4 Mun, H.No.53, Motimajul Building, Tehsil Undriya Street, Mumbai-400008 by Sh. Prakash Ram Intelligence Officer (PW-09) on 01.02.2019 and

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08.03.2019 but received back undelivered. Thereafter again notice u/s 67 of the NDPS Act 1985 was issued on 15.04.2019 to above suspected person which was sent through Zonal Director NCB, Mumbai. Thereafter, on 03.05.2019, the said person namely Aejaz Ismail Sayed (Sayyed Ijaz) S/o Ismail Sayed R/o Third 4 Mun, H.No.53, Motimajul Building, Tehsil Undriya Street, Mumbai-400008 reached at AHJ, Airport, Srinagar. On the basis of secret information, the Senior Superintendent of Police AHJ, Airport, Srinagar was requested to stop the said person at AHJ, Airport Srinagar for examination. Accordingly, he was stopped at AHJ, Airport Srinagar and shifted to Police Post, Humhama, Badgam (Srinagar), Aejaz Ismail Sayed (Sayyed Ijaz) was handed over to Sh. Prakash Ram, Intelligence Officer, NCB Jammu (PW-09) by Police Post, Humhama, Badgam (Srinagar). Thereafter, Sh. Prakash Ram, Intelligence Officer, NCB Jammu (PW-

09) has issued notice u/s 67 of the NDPS Act 1985 to Aejaz Ismail Sayed (Sayyed Ijaz) S/o Ismail Saved R/o Third 4 Mun, H.No.53, Motimajul Building, Tehsil Undriya Street, Mumbai- 400008 for recording of his statement at Police Post Humhama. Budgam (Srinagar). Thereafter, the voluntary statement of Aejaz Ismail Sayed (Sayyed Ijaz) S/o Ismail Sayed recorded by Sh. Prakash Ram, Intelligence Officer, NCB, Jammu (PW-

09) on 03.05.2019 and subsequently on 04.05.2019. Based on the confessional statement, Aeijaz Ismail Sayed (Sayyed Ijaz) S/o Ismail Sayed R/o Third 4 Mun, H.No.53, Motimajul Building, Tehsil Undriya Street, Mumbai-400008 has been placed under arrest under section 8, 20 & 29 of the NDPS Act 1985 on 04.05.2019 and produced before the competent court at Jammu where he was sent on judicial custody by the Hon'ble Court."

8. Further, from the record, it is evident that the statement of the

petitioner under section 67 of the Act was recorded initially on 03.05.2019 in

which it was stated that he has been requested by the Investigating Officer to

record his statement on next date i.e. 04.05.2019 and further his statement was

recorded on 04.05.2019 in which he has narrated that as per his directions,

respondent No. 2 reached Srinagar on 18.11.2018 and collected 20 Kgs of

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Charas from Mohd. Ashraf Rishi and the said charas was to be delivered to him

at Mumbai and transaction of the drugs was made telephonically and it was

further stated in his statement that earlier respondent No. 2 has given three

consignment of charas to him at Mumbai. From the record, it is further evident

that no recovery of any contraband has been effected from the petitioner and the

petitioner has been arrayed as an accused only on the basis of statement made by

him under section 67 of the Act.

9. While considering the issue of framing charge/discharge of the

accused, the trial court has to form opinion on the basis of material placed on

record by the Investigating Officer as to whether there is sufficient ground for

presuming that the accused has committed an offence or not. At this stage, the

learned trial court cannot indulge in critical evaluation of the evidence, as can be

done at the time of final appreciation of evidence after the conclusion of the trial

but the charge can be framed against the accused even when there is strong

suspicion about the commission of offence by the accused. At the same time the

trial court is not expected to merely act as post office and frame the charge just

because challan for the commission of a particular offence has been filed against

the accused. The trial court can sift the evidence brought on record by the

prosecution so as to find out whether the un-rebutted evidence placed on record

fulfills the ingredients of offence or not. If the ingredients of any offence are

lacking, then the Court has no option but to discharge. The Apex Court

in Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16

SCC 547 has held as under:

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"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

10. Thus for a person to be charged for commission of particular

offence, the material relied upon by the prosecution must be of such nature that

can be translated into evidence. Now it is to be seen as to whether the statement

recorded under section 67 of the Act, forms a material that can be translated in

to evidence.

11. In Tofan Singh v. State of Tamil Nadu, reported in (2021) 4 SCC

1, the Apex Court has held as under:

"158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

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158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

12. Thus, as per the law laid down by the Hon'ble Apex Court in

judgment supra, officers of the NCB are police officer within the meaning of the

section 25 of the Evidence Act and as such, any statement recorded under

section 67 of the Act by the empowered officer cannot be used as an evidence

and relied upon by the prosecution. Once the material relied upon by the

prosecution cannot be translated into evidence, then no charge can be framed

against the accused.

13. In view of the above law, the present petition has merit and the

same is allowed and the order passed dated 24.12.2019 by the learned trial court

is set aside qua the petitioner only and the petitioner is discharged.

14. The present petition, is, accordingly, disposed of.

(RAJNESH OSWAL) JUDGE JAMMU:

           13.08.2021
           Neha
                                                  Whether the order is speaking:         Yes
                                                  Whether the order is reportable:       Yes/No




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