Patna High Court
Aslam @ Md. Aslam Ali vs The State Of Bihar on 6 February, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.455 of 2019
Arising Out of PS. Case No.-718 Year-2016 Thana- BETTIAH CITY District- West
Champaran
======================================================
Aslam @ Md. Aslam Ali @ Aslam Ali Son Of Late Khairati Mian, Resident
Of Village- Sirisiya Mal, P.S.- Nakdei, District- East Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Pranshu, Advocate
For the State : Mr. Upendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 06-02-2025
The present petition has been preferred by the
petitioner against the impugned order dated 19.01.2019 passed
by learned Sessions Judge, Bettiah, West Champaran in Trial
No. 46 of 2017, whereby learned Sessions Court/Special Court,
N.D.P.S. has dismissed the application of the petitioner for
discharge filed under Section 227 of the Cr.PC.
2. The prosecution case, as per the written report of
the informant/Bimlendu Kumar, who is Police Sub-Inspector, is
that he was posted in Town Police Station, Bettiah. On
26.12.2016
, in the morning, he got information that one Md.
Saheb is selling smack at Naurangabag. Information was given
to his senior officer and one team was constituted. The raiding
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
team reached Naurangabag, near the house as informed by the
informer, surrounded the house and in the presence of one
Nagendra Mishra and Prabhawati Devi, door was opened and
one man called Md. Saheb emerged from the house. After taking
his consent for searching his house and following the rules of
search, the raiding team commenced the searching operation. In
course of search, 200 gram smack was recovered from the
jacket of Md. Saheb. On further inquiry, he stated that it was
Aslam, who supplied smack to him through his man, Wahab
Mukhiya. The recovered contraband was seized and sealed and
seizure list was prepared.
3. Upon the above written report of the informant,
Bettiah Town P.S. Case No. 718 of 2016 was registered on
26.12.2016 against the three accused persons, including the
petitioner for offence punishable under Sections 20, 23, 25,
27(A) and 29 of the N.D.P.S Act.
4. After investigation, separate charge-sheet was
submitted against the petitioner and thereafter, cognizance was
taken against him and at the stage of framing of charge, his
application for discharge was rejected by learned Trial Court by
the impugned order and subsequently charge was framed against
the sole accused/petitioner herein vide order dated 15.04.2019
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
under Sections 21(b), 22(b) and 23(b) of the NDPS Act.
5. I heard learned counsel for the petitioner and
learned APP for the State.
6. Learned counsel for the petitioner submits that the
petitioner is innocent and has been falsely implicated in this
case. He further submits that only material against the petitioner
is the confessional statement of co-accused, which is not
admissible in view of celebrated judgment of Tofan Singh Vs.
State of T.N., as reported in 2021 (4) SCC 1. Moreover, there is
no recovery from the possession of the petitioner despite raid
having been made by the police at his house. Hence, there is no
legally admissible material at all against the petitioner even to
arouse any suspicion against him. Hence, there is no question of
framing of charge. Hence, learned Trial Court has erroneously
passed the impugned order rejecting the application of the
petitioner for discharge.
7. He refers to and relies upon the following judicial
precedents:
(i) Dipakbhai J. Patel Vs. State of Gujarat,
(2019) 16 SCC 547
(ii) Karan Talwar Vs. The State of Tamilnadu
(2024 INSC 1012, 2024 SCC Online SC 3803)
8. However, learned APP for the State defends the
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
impugned order submitting that there is no illegality or infirmity
in it. He refers to Section 30 of the Evidence Act to submit that
confession of the co-accused is relevant and admissible against
the petitioner/accused and, therefore, there is no illegality to
frame charge against him on the basis of the confessional
statement of the co-accused. Hence, the present petition is liable
to be dismissed.
9. I considered the submissions advanced by both the
parties and perused the materials on record.
10. It is settled principle of law the power of this
Court under Section 482 Cr.PC, for quashing the criminal
proceedings, particularly, the charge framed in course of trial is
required to be exercised very sparingly and with circumspection
and that too in the rarest of rare cases. At this stage, the Court is
only required to 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. The Court can interfere only if the allegations are found
to be so patently absurd or inherently improbable that no
prudent person can believe such an allegation or where the basic
ingredients of a criminal offence are not satisfied as per the
material on record.
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
11. It is also settled principle of law that at the stage
of framing of charge, the Court is not required to conduct a mini
trial. It is required to consider the material on record only with a
view to find out if there is a ground for presuming that accused
had committed the offence, and not to see whether prosecution
has made out a case for conviction of the accused. At this stage,
the probative value of the material on record cannot be gone
into, and the material brought on record by the prosecution has
to be accepted as true. The truth, veracity and effect of the
evidence which the prosecutor proposes to adduce are not to be
meticulously examined. Nor is any weight to be attached to the
probable defence of the accused. The court is required to
evaluate the material and documents on record with a view to
find out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the
alleged offence.
12. It is also settled position of law that even strong
suspicion based on material on record is sufficient to frame
charge.
13. One may refer to the following judicial precedents
which deal with the principles in regard to framing of charge:
(i) State of T.N. Vs. R. Soundirarasu,
(2023) 6 SCC 768
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
(ii) CBI Vs. Aryan Singh,
2023 SCC OnLine SC 379
(iii) G. H. Beigh Vs. Mohd. Maqbool Magrey,
(2022) 12 SCC 657
(iv) Saranya vs. Bharathi,
(2021) 8 SCC 583
(v) State of Odisha Vs. Pratima Mohanty,
2021 SCC OnLine SC 1222
(vi) Dipakbhai J. Patel Vs. State of Gujarat,
(2019) 16 SCC 547
(vii) State of Karnataka Vs. M.R. Hiremath,
(2019) 7 SCC 515
(viii) State of T.N. Vs. N. Suresh Rajan
(2014) 11 SCC 709
(ix) Amit Kapoor Vs. Ramesh Chander
(2012) 9 SCC 460
(x) P. Vijayan Vs. State of Kerala,
(2010) 2 SCC 398
(xi) Sajjan Kumar Vs. CBI,
(2010) 9 SCC 368
(xii) Onkar Nath Mishra Vs. State (NCT of Delhi),
(2008) 2 SCC 561
(xiii) Soma Chakravarty Vs. State
(2007) 5 SCC 403
(xiv) State of Orissa Vs. Debendra Nath Padhi,
(2005) 1 SCC 568
(xv) K. Ramakrishna Vs. State of Bihar
(2000) 8 SCC 547
(xvi) State of M.P. Vs. Mohanlal Soni,
(2000) 6 SCC 338
(xvii) State of Maharashtra Vs. Som Nath Thapa,
(1996) 4 SCC 659
(xviii) Union of India Vs. Prafulla Kumar Samal,
(1979) 3 SCC 4.
14. It is also settled position of law that material on
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
the basis of which charge could be framed, must be such
material which could be translated into evidence during trial.
The rationale behind such principle is that standing the trial is
an ordeal and, therefore, in a case where there is no material at
all which could be translated into evidence at the stage of trial, it
would be miscarriage of justice to make the person concerned
stand the trial. Therefore, if the confession which is inadmissible
under Section 25 of the Evidence Act is the sole material, no
charge could be framed against him, because such confession
could not be translated into evidence during the trial.
15. In this regard, one may refer to Dipakbhai J.
Patel case (supra), wherein Hon'ble Apex Court has held that
even the strong suspicion must be based on such material which
could be translated into evidence at the stage of trial. The
relevant para of the judgment reads as follows:
"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
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
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."
(Emphasis supplied)
16. Similar view has been taken by Hon'ble Apex
Court in Karan Talwar case (supra) holding as follows, relying
upon Dipakbhai J. Patel case (supra):
"10. .........................There is absolutely no
case that any recovery of contraband was recovered from
the appellant. As regards the confession statement of the
appellant in view of Section 25 of the Indian Evidence
Act, 1872 there can be no doubt with respect to the fact
that it is inadmissible in evidence. In this context it is
worthy to refer to the decision of this Court in Ram Singh
v. Central Bureau of Narcotics, (2011) 11 SCC 347. In
the said decision, this Court held that Section 25 of the
Indian Evidence Act would make confessional statement
of accused before police inadmissible in evidence and it
could not be brought on record by prosecution to obtain
conviction. Shortly stated, except the confessional
statement of co-accused No. 1 there is absolutely no
material available on record against the appellant.
...................................................................
12. As noted hereinbefore, the sole material
available against the appellant is the confession statement
of the co-accused viz., accused No. 1, which undoubtedly
cannot translate into admissible evidence at the stage of
trial and against the appellant. When that be the position,
how can it be said that a prima facie case is made out to
make the appellant to stand the trial. There can be no
doubt with respect to the position that standing the trial is
an ordeal and, therefore, in a case where there is no
material at all which could be translated into evidence at
the trial stage it would be a miscarriage of justice to make
the person concerned to stand the trial."
(Emphasis supplied)
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
17. Even reference to and reliance of learned APP
upon Section 30 of the Evidence Act does not help the
prosecution. A careful reading of Section 30 shows that even as
per Section 30, only legally admissible confession of the co-
accused is relevant and admissible against the accused, because
the condition precedent for making the confessional statement
of the co-accused relevant against accused is that there should
be not only a joint trial of the accused along with the co-
accused, even the confessional statement should be such which
could be proved in the trial. Needless to say that inadmissible
confession cannot be proved during the trial. As such,
confession as referred to in Section 30 of the Evidence Act
means only admissible confession and not such confession
which is hit by Section 25 of the Evidence Act.
18. Coming to the case on hand, I find that the only
material against the petitioner is confessional statement of the
co-accused, Md. Saheb as recorded under Section 67 of the
NDPS Act. As per his statement, it is the present petitioner who
used to supply smack to him through his man Wahab Mukhiya.
But on raid, nothing has been recovered from the house of the
petitioner or from his personal possession. As such, one and
only material against the petitioner is confessional statement of
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
co-accused before police. But after judgment of Tofan Singh
case (supra) it is settled position of law that confessional
statement of the co-accused as recorded under Section 67 of the
NDPS Act is not admissible. Here it has been held by Hon'ble
Apex Court that the powers conferred on the empowered
officers under Section 41 and 42 of the NDPS Act 1985 read
with Section 67 of the NDPS Act 1985 are limited in nature
conferred for the purpose of entry, search, seizure and arrest
without warrant along with safeguards enlisted thereof. The
"enquiry" undertaken under the aforesaid provisions may lead to
initiation of an investigation or enquiry by the officers
empowered to do so either under Section 53 of the NDPS Act
1985 or otherwise. Thus, 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.
19. In recent judgement of Najmunisha v. State of
Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC
306, Hon'ble Supreme Court has again held, relying upon Tofan
Patna High Court CR. REV. No.455 of 2019 dt.06-02-2025
Singh Case (supra) that a statement recorded under Section 67
of the NDPS Act cannot be considered to convict an accused
person under the NDPS Act 1985.
20. As such, there is no such material against the
accused/petitioner which could be proved against him during his
trial. Hence, I find that the learned Trial Court should have
allowed the application of the accused/petitioner for discharge
under Section 227 of the Cr.PC. But learned Trial Court has
erroneously dismissed the discharge application of the petitioner
by the impugned order. There was no legally admissible
material against the petitioner even to arouse suspicion, let alone
to make out a prima facie case against him.
21. As such, the impugned order is not sustainable in
the eye of law. Accordingly, the present petition is allowed,
quashing and setting aside the impugned order and allowing the
application of the petitioner filed under Section 227 of the
Cr.PC for discharge.
(Jitendra Kumar, J.)
Shoaib/
Ravishankar/
Chandan-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 04.03.2025.
Transmission Date 04.03.2025.
