Munish Khosla vs State Of J&K And Others
2021 Latest Caselaw 1010 j&K

                                                          Suppl Cause List-1
                                                             Sr. No. 1


        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                               Pronounced on : 02.09.2021

                                                CRR No. 67/2011
                                                IA No. 53/2011

Munish Khosla                                          .....Petitioner(s)

                      Through :- Mr. P.N.Raina, Sr. Advocate with
                                 Mr. J.A.Hamal, Advocate.

                                    v/s

State of J&K and others                                 ......Respondent(s)

                       Through :- Mr. Suneel Malhotra, GA for
                                  respondent No.1.

     CORAM: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                 JUDGMENT

1. The petitioner through the medium of present petition has sought

setting aside of order dated 18.10.2011, passed by the court of learned

Principal Sessions Judge, Jammu, whereby the court has directed

framing of charges against the petitioner herein and the private

respondents under Sections 8/21/29/60 NDPS Act and consequently

framed formal charges against them, on the ground that the so called

statement recorded by the petitioner before the respondent No.1 in

terms of Section 67 NDPS Act does not disclose any offence against

the petitioner. In fact there was no material which could prompt the

trial court to frame charges against the petitioner. As the present

petition has been filed by one of the accused in the case, namely,

Munish Khosla, the order passed in the present petition shall govern

the said petitioner and any observation or finding herein shall confine

to the present petition and not to have any effect on the merits of the

case pending before the trial court. It is submitted during the course of

arguments that the respondent No.3, Vishal Gupta, has since expired.

2. Heard Mr. P.N.Raina, learned Senior counsel for the petitioner and

Mr. Suneel Malhotra, learned Government Advocate appearing for

respondent No.1.

3. The complaint filed by the respondent No.1 reveals that the occurrence

of 23.07.2007 which is stated to have taken place at B.C.Road, near

Shakuntla Theatre resulted into filing of the complaint against the

petitioner herein and three other accused persons. As per the case set

up by the complainant, one Maruti Car bearing registration no.

DL8CD-5211 was intercepted near Shakuntla Cinema as the naka was

laid by the NCB team. During checking, Pritam Singh and Vishal

Gupta were found to be the occupants of the vehicle. The vehicle was

searched and 0.600 kilo gram cocaine was allegedly found in the

vehicle. The seizure of the contraband and other formalities were

completed. The statements of the aforesaid persons under Section 67

NDPS Act were recorded and they revealed the involvement of Munish

Khosla and Rahil Verma alias Ricky in this case of smuggling of the

narcotic drugs. The statement of petitioner-Munish Khosla under

Section 67 of the NDPS Act was recorded on 24.07.2009. The accused

Rahil Verma who is stated to have supplied the narcotics to Pritam

Singh and Vishal Gupta is still at large.

4. Mr. P.N.Raina, learned senior counsel appearing for the petitioner has

argued that except for the statement of the petitioner under Section 67

of the Act there is no other evidence on record to connect the accused

with the alleged commission of offence. In fact the statement recorded

under Section 67 of the Act is not admissible in terms of the judgment

of the Hon'ble Supreme Court titled Tofan Singh v. State of Tamil

Nadu, Criminal Appeal No. 152/2013, decided on 29.10.2020. Further

it is submitted that the statement itself does not make out any case for

framing the charges against the petitioner. Mr. Malhotra, learned

Government Advocate appearing for respondent No.1 has submitted

that the involvement of the petitioner is prima facie evident from the

statement recorded in terms of Section 67 of the Act. There is no

illegality in the order impugned in the present petition.

5. It is not in dispute that except for the statement recorded under Section

67 of the Act there is no other evidence implicating the petitioner in

the present case. It is apparent from the order impugned in the petition

that the trial court while framing the charges against the petitioner-

accused also has not stated as to how the evidence brought on record

by the complainant makes out a case for framing charges against the

petitioner-accused. The trial court has indeed given the facts as

mentioned in the complaint and has also stated that at the stage of

framing of charge the court has to prima facie consider whether there

is sufficient ground for proceeding against the accused.

6. The bare look at the statement of the petitioner recorded allegedly in

terms of Section 67 of the Act does not prima facie reveal the

necessary material against the petitioner-Munish Khosla which could

make out a case for framing charges against him. It is just that the

accused Pritam Singh and Vishal Gupta are reported to have mentioned

the name of the petitioner of his involvement in the case. In pursuance

to the same, the statement of the petitioner has been recorded in terms

of Section 67 of the Act. Looking to the statement of the petitioner

recorded on 24.07.2009 it is revealed that the petitioner was made

aware of the fact by Pritam that he is in contact with a party who

intends to purchase white powder and in case the petitioner arranges

the white powder Pritam will give him substantial sum in lieu of the

same. The petitioner has further revealed in his statement that Vishal

Gupta informed the petitioner that he will arrange the white powder

and he should bring the money. Thereafter he along with Pritam visited

the shop of Vishal and Pritam gave 2.80 lacs for the narcotics to

Pritam. He had also contributed Rs. 5000/- in it but as Vishal could not

arrange the narcotics, therefore, Vishal returned the money to Pritam.

On 22.07.2009 Vishal telephoned him that his friend Rahil Verma

possesses white powder as per the call received by him. The petitioner

then made a call to Pritam and asked him to talk to Vishal as his

mother is serious and he refused to accompany the said Pritam. He

came to know of the occurrence of 23.7.2009 on 24.07.2009. He had

agreed to work with Vishal Gupta and Pritam as he was in need of

money. What is culled out from the statement of the petitioner is that

he had at some point of time intended to contribute for the purchase of

the narcotics but that transaction did not materialize. So far as the

occurrence of 23.07.2009 is concerned the court does not find that the

statement of the accused Munish Khosla connects him with the

recovery alleged to have been made on 23.07.2009 from the accused

Pritam Singh and Vishal Gupta. It is not prima facie made out from the

statement that the petitioner herein had facilitated the procurement of

the narcotics or had otherwise any connection with the narcotics which

was recovered on 23.07.2009 from the vehicle of which Pritam Singh

and Vishal Gupta were occupants. May be the respondent-agency

could set up some case against the petitioner on the basis of the

statement but the statement does not, in any case, connect the

petitioner with the occurrence of 23.7.2009. Since the statement of

24.07.2009 of the petitioner reportedly recorded under Section 67 of

the NDPS Act does not reveal the involvement of the petitioner in

connection with the recovery made on 23.07.2009 and there is no other

material on record to show the complicity of the petitioner in the

mater, the court is of the view that there was no sufficient ground to

frame charges against the accused-Munish Khosla. Merely because the

complaint is lodged under different provisions of the NDPS Act does

not mean that the court is bound to frame the charges against the

accused persons. The court is not required to sift the evidence while

considering framing of charges but at the same time sufficient material

has to be there on record for framing of the charges against the

accused. In the present case necessary material to frame charges

against the petitioner is found wanting.

7. In addition the argument of the learned counsel for the petitioner that

the so called confessional statement recorded under Section 67 of the

NDPS Act is hit by Section 25 of the Evidence Act and, therefore, the

statement recorded of the petitioner under Section 67 has no value in

the eyes of law in view of the judgment in Tofan Singh's case (supra)

could not be met by the learned counsel for the respondent.

8. In view of the discussion made above, the court finds merit in the

petition. The petition is allowed and the order impugned dated

18.10.2011 directing framing of charge and consequently the formal

framing of charge against the petitioner-Munish Khosla are set aside.

(Puneet Gupta) Judge Jammu:

02.09.2021 Pawan Chopra Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.09.02 16:07 I attest to the accuracy and integrity of this document