Rajasthan High Court - Jodhpur
Union Of India vs Bhagirath And Ors on 27 April, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 107/2000
Union Of India
----Petitioner
Versus
Bhagirath And Ors.
----Respondent
For Petitioner(s) : Mr. Prakash Raika for
Mr. Mukesh Rajpurohit, ASG
For Respondent(s) : Mr. Abhishek Charan
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
27/04/2022
1. In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in Court, for the safety of
all concerned.
2. This revision petition under Section 397/401 Cr.P.C. has been
preferred against the order dated 18.12.1999 passed by the
learned Special Judge, NDPS Act Cases, Pratapgarh in Special
Sessions Case No.171/99 (50/98), whereby the learned trial court
has discharged the present accused-respondents of the offences
under Sections 8/18, 8/14, 8/21 & 8/29 of the NDPS Act, while
ordering appropriate action against one Murlichand (absconding
accused) for securing his presence.
3. Brief facts of this case, as noticed by this Court, are that a
secret information was received on 16.02.1998, whereupon after
being constituted, on 17.02.1998, a team of the Central Narcotics
Bureau reached the residential house of the accused-respondents
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at Village Naugava Tehsil & District Mandsor at about 6 a.m. and
surrounded the residential house of the accused-respondents;
during search thereof, though no contraband was found, but
thereafter, upon the agricultural land being searched, the
incriminating substance (contraband in question) was recovered;
the said contraband was alleged to have been kept by the
accused-respondents on the agricultural land. After due search
and investigation, a case was registered against the present
accused-respondents, alongwith accused-Murlichand (absconding),
for the alleged offences under the NDPS Act.
4. Mr. Prakash Raika for Mr. Mukesh Rajpurohit, learned ASG,
appearing on behalf of the petitioner-Union of India, submits that
despite there being sufficient material and proof placed before the
learned trial court for the purpose of establishing a prima facie
case against the present accused-respondents and the absconding
accused-Murlichand, the learned trial court proceeded to discharge
the present accused-respondents, vide the impugned order,
though appropriate action was ordered against the absconding
accused-Murlichand, so as to secure his presence. Further, as per
learned counsel, the accused-respondents, as a joint venture,
have indulged themselves, alongwith accused-Murlichand, in the
crime in question for a long period of time, and for the purpose of
perpetuating such crime, they have also created a threat in the
mind of the residents, not only of their own village, but also the
residents of the adjoining villages, and thus, no one did dare to
raise any voice against the accused-respondents. Thus, as per
learned counsel, the learned trial court has not made due
consideration of the facts and circumstances of the case and the
evidence placed before it, while passing the impugned order.
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5. On the other hand, learned counsel for the accused-
respondents, while supporting the impugned judgment, submits
that the learned trial court has taken into due consideration the
overall facts and circumstances of the case as also the evidence
placed before it, and only after due appreciation thereof, the
impugned order of discharge had been passed by the learned trial
court; this is more so, when the record of the case clearly reveals
that the present accused-respondents were got implicated in this
case at the instance of a person, who may be wishing to settle
personal scores with the accused-respondents, more particularly,
when there was no incriminating evidence available and placed
against the present accused-respondents.
6. After hearing learned counsel for the parties as well as
perusing the record of the case, this Court finds that the
report/information, as placed on record as Form DRI before the
learned trial court, did not bear the name of accused-Radhey
Shyam, though the same did bear the name of accused Bhagirath
and Bhanwarlal, and it was mentioned therein that all the three
accused-respondents alongwith Murlichand (absconding accused)
were indulged in the alleged crime for a long time.
7. The record also clearly reveals that though the information
was received on 16.02.1998 at about 7:00 p.m., but the search in
question was made on the next day i.e. 17.02.1998 in the
morning, i.e. after a delay of 12 hours; for such delay no
satisfactory explanation was forthcoming, which casts a serious
doubt upon the case of the prosecution.
8. The learned trial court has rightly observed that against the
absconding accused-Murlichand, prima facie case may be made
out, which also could be ascertained only after securing his
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presence; however, there was no recovery, either of the
contraband in question or any other incriminating substance,
having been made from the present accused-respondents, so as to
held them prima facie guilty for the alleged crime in question; the
same is clearly detrimental to the case of the prosecution and the
same tilts in favour of the accused-respondents.
9. The learned trial court has also rightly found that the due
procedure as provided under the law has not been followed by the
prosecution, which is also a ground for discharge of the accused-
respondents in the case.
10. The argument advanced on behalf of the petitioner that the
learned trial court has not made due consideration of the material
on record, while passing the impugned order, is also devoid of any
substance, as this Court finds the impugned order to be a well
reasoned speaking order; as while discharging the present
accused-respondents of the alleged offences, the learned trial
court had, in view of non-completion of the action under Section
82-83 Cr.P.C, ordered appropriate action against the absconding
accused-Murlichand, as mentioned in the impugned order, for
securing his presence.
11. Thus, in view of the above, this Court does not find any legal
infirmity in the impugned order passed by the learned trial court.
12. Consequently, while upholding the impugned order passed by
the learned trial court, the present petition is dismissed. All
pending applications stand disposed of. Record of the learned
court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
44-nirmala/skant
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