Ram Kumar Meena vs Union Of India Revenue Department ...
2023 Latest Caselaw 20049 MP

Madhya Pradesh High Court

Ram Kumar Meena vs Union Of India Revenue Department ... on 30 November, 2023

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S. Kalgaonkar

                                        1



             IN THE HIGH COURT OF MADHYA PRADESH
                               AT G WA L I O R
                                     BEFORE
        HON'BLE SHRI JUSTICE SANJEEV S. KALGAONKAR

                  CRIMINAL REVISION NO. 846 OF 2012

BETWEEN:-
RAM KUMAR MEENA SON OF SHRI BODURAM
MEENA, AGED 30 YEARS, OCCUPATION BUSINESS
RESIDENT OF KALU MEENA KI DHANI, KHANDELA,
SIKAR (RAJASTHAN)


                                 .....REVISION PETITIONER
(SHRI SURESH AGRAWAL- ADVOCATE FOR REVISION PETITIONER )
AND
 UNION OF INDIA,                      REVENUE DEPARTMENT
 CENTRAL             NARCOTICS              BUREAU            THROUGH
 MUKESH KHATRI INSPECTOR OFFICE NARCOTICS
 COMMISSIONER, GWALIOR (MADHYA PRADESH)
                                                                         .....RESPONDENT
 (SHRI PRAVEEN NIWASKAR- DEPUTY SOLICITOR GENERAL FOR
 RESPONDENT- UNION OF INDIA)
---------------------------------------------------------------------------------------
                 Reserved on                  :         09-10-2023
                  Pronounced on               :         30.11.2023
---------------------------------------------------------------------------------------
      This revision having been heard and reserved for order, coming on for
pronouncement this day, Justice Sanjeev S Kalgaonkar pronounced the
following:
                                     ORDER

This criminal revision under Section 397 read with Section 401 of CrPC is filed assailing the order dated 26-07-2012 passed in Special Case

No.01 of 2012 (NDPS), by leaned Special Judge (NDPS Act), Bhind, whereby charges under Section 8(C) read with Section 29, 15(C) read with Section 29, 26 of Narcotic Drugs Psychotropic Substances Act, 1985 [in short ''the NDPS Act''] have been framed against revision petitioner- Ram Kumar Meena.

(2) The revision petition inter alia states as under:-

(A) As per the case of prosecution, 4110.54 kilograms of poppy straw and 91.40 kilograms of poppy straw powder were recovered from possession of co-accused Surendera Singh. Surendra Singh was the licensee for sale of poppy straw but his stock register shows entry of only 202.54 kilograms of poppy straw.

(B) The confessional statement of Surendra Singh and revision petitioner- Ram Kumar Meena were recorded under Section 67 of NDPS Act wherein the revision petitioner has confessed that he was carrying benami business of sale and purchase of poppy straw in the name of Surendra Singh. Revision petitioner was arrested and on completion of investigation, Final Report was submitted before the Special Judge (NDPS), Bhind. Revision petitioner retracted from the confessional statement and submitted his objection. Learned Special Judge (NDPS), Bhind framed charges as aforesaid against the revision petitioner and co-accused Surendra Singh, Shivshankar Agarwal, Idu Khan and Ashok Meena vide impugned common order dated 26-07- 2012.

(3) Being aggrieved by the impugned order dated 26-07-2012, this revision petition is filed on the following grounds:-

(A) The impugned order passed by Special Judge (NDPS), Bhind is illegal and arbitrary.

(B) No offence is made out against the revision petitioner. The

prosecution failed to submit any evidence to show that revision petitioner has any connection with the alleged offence. (C) Surendra Singh was licensee of poppy straw for the quantity of 50 Quintals whereas the material seized from the possession of Surendra Singh is only ad-measuring 42 Quintals. Co-accused Surendra Singh, Shiv Shankar Agrawal and Idu Khan stand discharged as no material is available against them.

(4) On such grounds, it is requested that the impugned order dated 26-07-

2012 passed by Special Judge (NDPS), Bhind be set aside and revision petitioner be discharged from alleged offence.

(5) Learned Counsel for the revision petitioner referring to order dated 7 th January, 2013 passed in Criminal Revision Nos.843 of 2012 and 844 of 2012 and also order dated 12th October, 2012 passed in Criminal Revision No.636 of 2012, contends that main accused Surendra Singh, co-accused Shiv Shankar Agrawal and Idu Khan stand discharged of offence punishable under Sections 8(C) read with Section 29, 15(C) read with Section 29, 27-A, 26 of NDPS Act. Learned counsel further referring to order dated 01.03.2016 of the Supreme Court in SLP (Criminal) No.3793/2013 and order dated 28.02.2017 in Criminal Appeal No.1584/2015 submits that the appeal filed against aforementioned orders have been dismissed. Therefore, the prosecution does not survive against the revision petitioner. Revision petitioner deserves to be discharged.

(6) Per contra, Shri Praveen Niwaskar, learned Deputy Solicitor General appearing for respondent - Union of India, contends that the statements of Surendra Singh and revision petitioner Ram Kumar Meena recorded under Section 67 of NDPS Act reveal that Surendra Singh was PS3 Retail Licence permitted to keep poppy straw with several other conditions including maintenance of stock register. As per stock register, at the time of incident, the

balance stock of poppy straw was only 202.5 kilograms whereas in all, 4201.780 kilograms of poppy straw was recovered from the possession of Surendra Singh. It goes to show that the licensee was involved in the illegal sale/purchase of poppy straw. The voluntary confessional statements prima facie establish that although the licence was in the name of Surendra Singh but the business was carried out by revision petitioner and his associates. In view of statutory presumption under Sections 35 and 66 of NDPS Act, as also voluntary confessional statement under Section 67 of NDPS Act, the learned Special Judge (NDPS), Bhind committed no error in framing charges of alleged offence against the revision petitioner. Therefore, the revision petition deserves to be dismissed.

(7) Heard both the parties. Perused the record.

(8) As per the case of prosecution, on 07-10-2010, the Officers of Central Narcotics Bureau, Gwalior received secret information that Shiv Shankar Agrawal is conducting illegal business of poppy straw in the name of M/s. Balaji Trading at his factory in Malanpur Industrial Area, Bhind. On this information, raid was conducted in a closed factory at Malanpur Industrial Area. Surendra Singh, son of Charan Singh was found at the factory and godown. He informed that he has PS3 Retail licence for possession of sale of poppy straw. Surendra Singh produced the stock register which has last entry of stock of 202.5 kilograms of poppy straw (doda chura) whereas, total quantity of poppy straw 4110.540 kilograms and poppy straw powder 91.240 kilograms were found at the godown. Surendra Singh informed that although PS3 Retail licence is in his name, actually, the entire business of poppy straw is conducted by Shiv Shankar Agrawal and Idu Khan. At the instance of Surendra Singh, Shiv Shankar Agrawal along with Idu Khan and revision petitioner Ram Kumar Meena were intercepted at Ramkumar Colony, Gwalior. One bag was recovered from the possession of revision petitioner

containing licence of Surendra Singh and other documents relating to transaction of poppy straw by Surendra Singh, Idu Khan and Ashok Meena. Shiv Shankar Agrawal in his confessional statement informed that he was conducting smuggling of poppy straw in association of Idu Khan, Ram Kumar Meena and Ashok Meena. Accordingly, revision petitioner Ram Kumar Meena was arrested and his statement under Section 67 of NDPS Act was recorded wherein he admitted his association with other co-accused in smuggling of poppy straw. On completion of investigation, Final Report was submitted before the learned Special Judge (NDPS), Bhind.

(9) The Coordinate Bench of this Court in Criminal Revision No.636 of 2012 vide order dated 12-10-2012 relying on the judgment of Supreme Court in P. Vijayan Vs.State of Kerala (2010) 2 SCC 398 and Union of India Vs. Balmukund and Others (2009) 12 SCC 161 proceeded to conclude as under:-

''14. In the present case the only basis for framing the charge against the petitioner is the confessional statement of accused Surendra Singh. When Surendra Singh himself has not committed any offence in contravention of any condition of licence and if any breach is there, then also the same is punishable under condition No.19 of the licence itself and co-accused cannot be interrogated under Section 67 of the NDPS Act. Further, if the statement of petitioner recorded under Section 67 of the NDPS Act is treated as voluntary statement, it cannot be a confessional statement against him because there is only contravention of condition of licence by Surendra Singh and petitioner is not the licence holder, therefore, question of contravention of any condition of licence by the petitioner does not arise.'' (10) Thereafter, the Coordinate Bench of this Court in Criminal Revision Nos. 843 of 2012 and 844 of 2012 vide order dated 07.01.2013 has observed as under:-

''10. In the present case the quantity of poppy straw seized from the accused Surendra Singh is within the limit of licence issued to him. Licence has been produced along with challan which has been issued for the premises from which poppy straw has been seized from

accused Surendra Singh on the basis of confessional statement under Section 67 of NDPS Act. No poppy straw has been seized from the possession of petitioner or any other accused or even on the instance of accused Surendra Singh. Licence issued to accused Surendra Singh also contains the conditions including documents regarding transportation of poppy straw and proforma has been prescribed in the licence itself for details of stock received by the licensee and in the end the condition No.19 has been prescribed according to which if any of the condition of the licence is violated or any provisions of the NDPS Act are violated or any instructions issued by licensing authority are violated, then licensing authority shall be empowered to receive fine amount nor more than Rs.2,000/- for compounding the same instead of cancelling the licence, therefore, breach of any condition of licence is not punishable under NDPS Act if the quantity of poppy straw is within permissible limits of the licence.

14. In the present case, the only basis for framing the charge against the petitioner- Idu Khan is the confessional statement of accused Surendra Singh. Once Surendra Singh himself has not committed any offence in contravention of any condition of licence and if any breach is there, then also the same is punishable under condition No.19 of the licence itself and co-accused cannot be interrogated under Section 67 of the NDPS Act. Further if the statement of petitioner recorded under Section 67 of the NDPS Act is treated as voluntary statement, it cannot be a confessional statement against him because there is only contravention of condition of licence and petitioner - Idu Khan is not the licence holder, therefore, question of contravention of any condition of licence by the petitioner does not arise. '' (11) The aforementioned conclusions have attained finality as the appeal assailing aforementioned orders stand dismissed by the Apex Court.

(12) The revision petitioner was involved in this matter on the basis of statement of co-accused Shiv Shankar Agrawal recorded under Section 67 of the NDPS Act. Co-accused Surendra Singh and Shiv Shankar Agrawal stand discharged. It was concluded that no offence under Section 29 or Section 26 of NDPS Act is made out against them.

(13) One driving licence, one SBI shopping card on the name of Banbari

Lal, one cheque of ICICI Bank, signed by Ashok Meena as proprietor of Salasar Enterprises and one Micromax mobile were recovered from the person of accused Ram Kumar. Further, one diesel slip, medical slip of Idu Khan and cash amount of Rs.1,69,250/- were recovered and seized from the house of Ram Kumar. These articles seized during investigation per-se may not be sufficient to prima facie constitute the involvement of revision petitioner in illegal smuggling of poppy straw. Learned Deputy Solicitor General for the respondent- Union of India was at loss to point out the evidence on record, prima facie, establishing the ingredients of offence punishable under Section 29 of NDPS Act against revision petitioner Ram Kumar Meena except the confessional statement recorded under Section 67 of the NDPS Act.

(14) The Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu, reported in (2021) 4 SCC 1 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.

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.

(Balwinder Singh (Binda) vs. Narcotics Control Bureau, reported in 2023 SCC Online SC 1213 also relied)

(15) On the basis of aforementioned fact scenario, this Court is of the view

that the learned Special Judge (NDPS), Bhind committed an error in framing of charges of alleged offence against the revision petitioner without considering the material on record and applying the judicial mind on facts and circumstances revealed by the material collected during investigation.

(16) Consequently, revision petition is allowed and impugned order dated 26-07-2012 passed in Special Case No.01 of 2012 (NDPS) by leaned Special Judge (NDPS Act), Bhind is set aside and the petitioner be discharged from all the charges framed against him by aforementioned impugned order.

(SANJEEV S. KALGAONKAR) JUDGE

MKB/Avi

MAHENDRA BARIK 2023.12.01 06:41:54 +05'30'