Madhya Pradesh High Court
Rahul Kushwaha vs The State Of Madhya Pradesh on 25 July, 2025
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:35054
1 CRR-5922-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 25th OF JULY, 2025
CRIMINAL REVISION No. 5922 of 2023
RAHUL KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Devraj Vishwakarma - Advocate for the applicant.
Shri Amit Garg - Panel Lawyer for respondent/ State.
ORDER
This revision under Section 397/401 of Cr.P.C. has been filed
assailing the order dated 22.7.2023 passed by Special Judge (NDPS) Act,
District Rewa, whereby charge for commission of offence under Sections
8 (C) read with Section 21(C), Section 27(b) and 29 of NDPS Act, 1985,
has been framed against the applicant.
2 . As per prosecution story on 4.5.2021 Police Govindgarh
received an information that Rahul Pal, resident of Dhobiya Tank, Rewa
has stored large quantity of Onrex Cough Syrup having Codeine
Phosphate and he has brought the same with his companion Ajay Pal and
same can be recovered. Information was recorded and thereafter
procedure contemplated in the provisions of NDPS Act was followed.
Thereafter, Inspector Ram Bahor Soni along with Police forces and
witnesses reached on the Rahul Pal's Animal Feed Centre at village
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Bansa Mod. He found there Rahul Pal and Ajay Pal. Notice under
Section 50 of NDPS Act was issued to them and they made aware of
their right to give search before some Magistrate or Gazetted Officer but
they agreed to give search to Police Inspector Rambahor Soni. Search
was conducted. In search of shop sacks full of Cough Syrup were
seized. It was Wings Biotech Company, Onrex Cough Syrup having
Chlorpheniramine Maleate Codeine Phosphate. In total 4320 bottles
were seized from the cartoons. Its cost was worth Rs.5,18,400/-.
Samples were taken and sealed. Seizure memo was prepared.
Rs.28,800/- received from the sale of almost 240 bottles and other items
were also seized. In the course of investigation, it was found that
aforesaid cough syrup was sold by the present applicant Rahul Kushwaha
to Divyansh Traders through his firm "Secret Pharma". Therefore,
present applicant was also impleaded as accused. After investigation
charge sheet has been filed.
3 . Learned counsel for the applicant has submitted that no
contraband was seized from the possession of the present applicant. He
was having valid license to sell Drugs and Medicines. Therefore, he was
not required to be arrested and he cannot be prosecuted for commission
of aforesaid offences. Learned Special Judge, NDPS Act, while framing
charges has not considered aforesaid aspect and has passed erroneous
impugned order by framing charges against him. Therefore, he has
prayed for setting aside the same and discharge him from the charges.
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4. On the other hand, learned counsel for the State has opposed the
submissions put forth by learned counsel for the applicant and has
submitted that applicant had license for retail sale of the Drugs and the
contraband which has been seized was supplied by the applicant was
having Codeine Phosphate. It is also submitted that the applicant is
facing trial in some other NDPS cases. It is contended that in the course
of investigation, Police has collected sufficient evidence against the
applicant and also seized GST Invoice bills etc. displaying the
involvement of the applicant in commission of offence. Therefore, there
was sufficient prima facie material before the trial Court for framing
charges. It is further contended that while framing the charge, Court has
to see whether material available before the Court disclose grave
suspicion against the accused or not. Therefore, it is submitted that
learned Trial Court was fully justified in framing a charge against the
applicant and proceeding with the trial. Thus, he has supported the
impugned order.
5. I have heard learned counsel for the parties at length and has
perused the material available on record along with the case diary.
6. Counsel for the applicant has placed reliance on the case of
Captain Manjit Singh Virdi (Retd.) Vs. Hussain Mohammed Shattaf &
Ors - 2023 Live Law (SC) 462, wherein it is held that "at the stage of
hearing on the charge entire evidence produced by the prosecution is to
be believed and if no offence is made out, then only an accused can be
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discharged. Truthfulness, sufficiency and acceptability of the material
produced can be done only at the stage of trial. At the stage of charge,
the Court has to satisfy that a prima facie case is made out against the
accused persons. Interference of the Court at that stage is required only
if there is strong reasons to hold that in case the trial is allowed to
proceed, the same would amount to abuse of process of the Court."
7. The said case was of blind murder and there was no eye
witness. There was no enmity of respondent Nos. 1 and 2 with the
deceased. In that case, High Court had not referred the Psychological
Evaluation including Psychological Profiling, Polygraph Testing and
Brain Electrical Oscillations Signature Profiling (BEOS) tests of the
accused and the other aides of respondent No.1 and ordered discharge of
respondent Nos. 1 and 2 and had discharged the accused.
8. The facts of the aforesaid case has no application in the present
case.
9. In the case of Balwinder Singh (Binda) Vs. The Narcotics
Control Bureau - 2023 Live Law (SC) 813 the appeals were decided by
the Hon'ble Apex Court against the death sentence of murder reference
passed by the Panjab and Haryana High Court. Order was passed in
appeals in which accused were acquitted from the charge of murder but
were convicted under Section 21(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. In that case no issue with regard to
framing of charge was indicated. Therefore, no benefit can be given to
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the applicant on the basis of aforesaid case laws.
10. In order to appreciate the submissions made on behalf of the
parties, the issue that arises for consideration in the present criminal
revision is that whether there exists a prima facie case for framing
charges.
11. It is settled that at the stage of framing the charges, the Court
has the 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 and 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. No roving inquiry into pros and cons of the
matter and weighing the evidence is necessary as if the trial is conducted.
12. If on the basis of materials on record, Court could come to
the conclusion that commission of the offence is a probable consequence;
a case for framing of charge exists. To put it differently, if the Court were
to think that the accused might have committed the offence it can frame
the charge. It is apparent that at the stage of framing of a charge,
probative value of the materials on record cannot be gone into; the
materials brought on record by the prosecution has to be accepted as true
at that stage.
13. 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
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committed an offence then it is not open to the Court to say that there is
no sufficient ground for proceeding against the accused. While deciding
the question of framing of charge in a criminal case, the Court is not
required to be applied exactly the standard of test and judgment which is
to be finally applied before recording a finding regarding the guilt or
otherwise of the accused.
14. Hon'ble the Apex Court in the case of Amit Kapoor vs.
Ramesh Chander; (2012) 9 SCC 460, has laid down the principles and
procedures to be followed while framing of charge and held as below :
"17. Framing of a charge is an exercise of jurisdiction by the trial
court in terms of Section 228 of the Code, unless the accused is
discharged under Section 227 of the Code. Under both these
provisions, the court is required to consider the 'record of the case' and
documents submitted therewith and, after hearing the parties, may
either discharge the accused or where it appears to the court and in its
opinion there is ground for presuming that the accused has committed
an offence, it shall frame the charge. Once the facts and ingredients of
the Section exists, then the Court would be right in presuming that
there is ground to proceed against the accused and frame the charge
accordingly. This presumption is not a presumption of law as such.
The satisfaction of the court in relation to the existence of constituents
of an offence and the facts leading to that offence is a sine qua non for
exercise of such jurisdiction. It may even be weaker than a prima facie
case. There is a fine distinction between the language of Sections
227 and 228 of the Code. There is a fine distinction between the
language of Sections 227 and 228 of the Code. Section 227 is
expression of a definite opinion and judgment of the Court
while Section 228 is tentative. Thus, to say that at the stage of framing
of charge, the Court should form an opinion that the accused is
certainly guilty of committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code.
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19. At the initial stage of framing of a charge, the court is concerned
not with proof but with a strong suspicion that the accused has
committed an offence, which, if put to trial, could prove him guilty.
All that the court has to see is that the material on record and the facts
would be compatible with the innocence of the accused or not. The
final test of guilt is not to be applied at that stage."
15. Hon'ble the Apex Court in the case of Sheoraj Singh Ahlawat
& ors. vs. State of Uttar Pradesh;(2013) 11 SCC 476 , has discussed the
legal position with respect to framing of charges as hereunder:
"15. .....This Court explained the legal position and the approach to be
adopted by the Court at the stage of framing of charges or directing
discharge in the following words: [Onkar Nath Mishra v. State (NCT)
of Delhi, (2008) 2 SCC 561): (2008) Cri.L.J. 1391 (SC)].
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 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)
16. Support for the above view was drawn by this Court from
earlier decisions rendered in State of Karnataka v. L. Muniswamy; 1977
Cri.LJ 1125 (SC), State of Maharashtra & Ors. v. Som Nath Thapa and
Ors.; 1996 Cri.LJ 2448 (SC) and State of M.P. v. Mohanlal Soni; 2000
Cri.LJ 3504 (SC). I n Som Nath's case (supra) the legal position was
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summed up as under:
"32. ...if on the basis of materials on record, a court could come
to the conclusion that commission of the offence is a probable
consequence, a case for framing of charge exists. To put it
differently, if the court were to think that the accused might
have* committed the offence it can frame the charge, though for
conviction the conclusion is required to be that the accused has*
committed the offence. It is apparent that at the stage of framing
of a charge, probative value of the materials on record cannot be
gone into; the materials brought on record by the prosecution has
to be accepted as true at that stage."
(Emphasis supplied)
17. So also in Mohanlal case (supra) this Court referred to several
previous decisions and held that the judicial opinion regarding the
approach to be adopted for framing of charge is that such charges
should be framed if the Court prima facie finds that there is
sufficient ground for proceeding against the accused. The Court is
not required to appreciate evidence as if to determine whether the
material produced was sufficient to convict the accused. The
following passage from the decision in Mohanlal case (supra) is in
this regard apposite:
"8. The crystallized judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The court is
not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the
accused.""
(Emphasis supplied.)"
17. Hon'ble the Apex Court in the case of P. Vijayan vs State of
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Kerala and Another ; (2010) 2 SCC 398, has held that the consideration
of the Court at the stage of framing of charges is for the limited purpose
of ascertaining whether or not there is sufficient ground for proceeding
against the accused. Whether the material in the hands of the prosecution
is sufficient or not are matters of trial. Moreover, the issue whether the
trial will end in conviction or acquittal is also immaterial. The relevant
portion of the decision is reproduced below:
"12. .........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."
18. Considering the conspectus of the decisions discussed
hereinabove, it is apparent that at the stage of charge, the Trial Court has
to merely peruse the evidence in order to find out whether there is a
sufficient ground for proceeding against the accused or not. If upon
consideration of the material placed before it, the Trial Court is satisfied
that a prima facie case is made out against the accused, it must proceed to
frame charge in terms of Section 228 of the CrPC. The Trial Court
cannot conduct a roving and fishing inquiry into the evidence or a
meticulous consideration thereof at this stage. Marshalling and
appreciation of evidence and going into the probative value of the
material on record, is not in the domain of the Court at the time of
framing of charges. Thus, the present matter has to be decided as per the
parameters laid down by Hon'ble the Apex Court.
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19. In the case in hand, the police has seized license of the "Secret
Pharma" and police evidence showing that aforesaid contraband were
sold by the applicant. Contraband was having Codeine Phosphate.
20. Thus, on perusal of material available on record, prima facie
appears that material for forming strong suspicion is available on the
record. Therefore, framing of charge for commission of offence under
the provisions of NDPS Act by the learned trial Court cannot be said to
be without any reason.
21. Hon'ble the Apex Court in the case of State Of Gujarat vs
Dilipsinh Kishorsinh; 2023 SCC Online SC 1294, has observed as
under:-
"13. Another well-accepted norm is that the revisional jurisdiction of
the higher court is a very limited one and cannot be exercised
routinely. One of the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to keep in mind that
the exercise of revisional jurisdiction itself should not lead to injustice
ex-facie. Where the Court is dealing with the question as to whether
the charge has been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise of its
revisional jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much-advanced
stage in the proceedings under the CrPC."
14. This Court in the aforesaid judgment has also laid down principles
to be considered for the exercise of jurisdiction under Section 397
particularly in the context of prayer for quashing of charge framed
under Section 228 Cr. P.C. is sought for as under:
"27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the
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fine line of jurisdictional distinction, now it will be appropriate
for us to enlist the principles with reference to which the courts
should exercise such jurisdiction. However, it is not only difficult
but is inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of the
principles to be considered for the proper exercise of jurisdiction,
particularly, with regard to quashing of charge either in exercise
of jurisdiction under Section 397 or Section 482 of the Code or
together, as the case may be:
27.1. Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due
care and caution is to be exercised in invoking these powers. The
power of quashing criminal proceedings, particularly, the charge
framed in terms of Section 228 of the Code should be exercised
very sparingly and with circumspection and that too in the rarest
of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach such
a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether
the case would end in conviction or not at the stage of framing of
charge or quashing of charge.
*****
27.9. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and materials
on record to determine whether there is sufficient material on the
basis of which the case would end in a conviction; the court is
concerned primarily with the allegations taken as a whole
whether they will constitute an offence and, if so, is it an abuse of
the process of court leading to injustice.
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******
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit the
continuation of prosecution rather than its quashing at that initial
stage. The Court is not expected to marshal the records with a
view to decide admissibility and reliability of the documents or
records but is an opinion formed prima facie."
15. The revisional court cannot sit as an appellate court and start
appreciating the evidence by finding out inconsistency in the
statement of witnesses and it is not legally permissible. The High
Courts ought to be cognizant of the fact that the trial court was
dealing with an application for discharge."
22. It is contended by learned counsel for the applicant that
applicant has been impleaded on the basis of confessional statement of a
co-accused which is not admissible in evidence. Consequently, no case
is made out for framing of charge against him. It is trite in law that a
confessional statement of an accused is not admissible in evidence
against a co-accused and law in this regard is well settled.
23. In the case in hand, it is apparent that besides the statement,
documents have been seized which shows that applicant was having
license to sell drugs. The contraband which has been seized was sold out
by him by the company, the bills are also seized. The investigation
agency has not only collected aforesaid evidence but it is also worth
mentioning that accused is facing other cases in NDPS Act. The bills
which have been seized is admittedly issued in the name of Secret
Pharma, proprietor whereof is the present applicant. Thus, it cannot be
stated that the applicant has been implicated in the alleged crime only on
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the basis of confessional statement of co-accused. In the instant case,
besides there being recovery of contraband substance from the two
accused persons, there are other circumstances, which shows that
applicant was prima facie involved in sale of contraband.
24. Therefore, it is to be presumed that applicant has been prima
facie found to be involved in the conspiracy relating to possession of
commercial quantity of contraband. Thus, the applicant is deemed to
have committed the same offence as has been committed by the co-
accused.
25. As already stated above, the petitioner's involvement in the
alleged crime is not only based on the confessional statement made by
co-accused but it is also based on the material collected by the
investigating agency. It is admitted that the applicant happen to be
proprietor of the Secret Pharma. Thus, it cannot be stated that there are
no grounds to presume that the applicant is involved in the commission
of crime. Section 29 of the NDPS Act specifically addresses the
penalties for those who assist or participate in a criminal conspiracy to
commit an offence under the NDPS Act. This Section emphasizes that
"whoever abets, or is a party to a criminal conspiracy to commit an
offence" is subject to punishment under this law. Buyers and sellers can
be implicated under this Section if there is adequate evidence
demonstrating their involvement in a conspiracy related to drug
trafficking. It is to be noted that individuals implicated under Section 29
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of the NDPS Act are often the primary masterminds behind the drug
trafficking networks, orchestrating operations from a distance while
using others, typically those found in direct possession of the drugs, as
scapegoats. Consequently, at this stage it cannot be said that charges
have been framed without any basis. In this case there is sufficient
evidence showing that payments were made for purchasing contraband
and sale was made by the applicant through his Secret Pharma which
allows the Court to reasonably conclude that the applicant entered into a
criminal conspiracy aimed at facilitating the commission of an offense.
26. In view of the above detailed discussions, I am of the view
that there is no patent infirmity in the order framing charge. Hence, the
present criminal revision filed by the applicant/accused fails and the
same is dismissed. The observation made hereinabove shall remain
confined to the disposal of the present revision petition and will have no
bearing, whatsoever, on the merits of the case.
(DINESH KUMAR PALIWAL)
JUDGE
mrs. mishra
