Gujarat High Court
Manoj Tejaram Jain vs State Of Gujarat on 3 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/6374/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6374 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MANOJ TEJARAM JAIN
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH(791) for the PETITIONER(s) No. 1
MR. MITESH AMIN, LD. PUBLIC PROSECUTOR WITH MS. MOXA
THAKAR, ADDL. PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/04/2018
ORAL JUDGMENT
1. By this application under section 482 of the Cr.P.C., 1973, the applicant-original accused has prayed for the following reliefs;
Page 1 of 26R/CR.MA/6374/2018 JUDGMENT "(A) That the Hon'ble Court may be pleased to quash and set aside the order of the Ld. 10th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, dated 23.02.2018 & passed below Exhibit 8 in NDPS Case No.06 of 2016 and further be pleased to quash and set aside the charge framed below Exhibit 5 in NDPS Case No.06 of 2016 with a further direction to Ld. 10th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur to supply copies of the additional charge-sheet nd ll the relevant documents relied upon by the prosecution U/s.207 & 208 of Cr.P.C to ensure a free and fair trial & to consolidate all the cases as one case and frame one common charge against all the accused arrested so far in connection with Cri. Reg. No.III-2/2016 registered with ATS Police Station, in view of the peculiar facts and circumstances stated above.
(B) That during the pendency and final hearing of the present petition, the Hon'ble Court may be pleased to stay the further proceedings of NDPS Case No.6 of 2016 pending before Ld. 10th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur.
(C ) That any just and proper order may be passed."
2. The case put up by the applicant herein, in his own words, as pleaded in his application, is as under;
"1. On 14-4-2016, an FIR came to be filed for the offences punishable U/s. 25 A r/w 29 of NDPS Act 1985 against accused (1) Narendra Kacha, (2) Kishorsinh Rathod & (3) Jay @ Jay Mukhi which came to be registered as Cr. Reg. No. lll- 2 of 2016 registered with ATS Police Station. Based on the said FIR, the I.O. commenced the investigation and effectuated arrest of accused Narendrabhai Kacha on 14-04-2016 and submitted charge-sheet on 07-06-2016 before Ld. Additional District Session Judge, Ahmedabad (Rural) at Mirzapur, whereby it came be registered as NDPS Case No. 4 of 2016.Page 2 of 26
R/CR.MA/6374/2018 JUDGMENT The petitioner Manoj Jain who is not named in the FIR, came to be arrested on 23-06-2016 for the offences punishable U/s. 25 A r/w 29 of NDPS Act 1985 in connection with Cr. Reg. No. lll-2 of 2016 registered with ATS Police Station and the charge-sheet against the accused Manoj jain, Punit Shringi & Jay @ Jay Mukhi Thakkar came to be submitted on 07-08-2016 before Additional District Session Judge, Ahmedabad (Rural) at Mirzapur, whereby it came to be registered as NDPS case no. 6 of 2016.
After submission of the charge-sheet against Manoj Jain & others, the I.O. had continued the investigation and effectuated arrest of co-accused Kishorsinh Bhavsinh Rathod & Bharatsinh Ranjitsinh Kathia and submitted additional charge- sheet against the said accused on 08- 03-2017 before Ld. Additional District Session Judge, Ahmedabad (Rural) at Mirzapur, whereby it came to be registered as NDPS case No. 02 of 2017.
2. On 23-02-2018 , the copies of the charge-sheet along with statement of witnesses, Panchnama etc, relied upon in the charge-sheet submitted against Manoj Jain & another came to be supplied to the accused Manoj Jain but the additional charge-sheet and documents relied upon by the prosecution against co-accused Kishorsinh Rathod & Another were not supplied to co- accused Manoj Jain and therefore on the said day i.e. 23-02-2018, an application came to be submitted on behalf of accused Manoj Jain, to even supply the copy of additional charge-sheet folio and all relevant documents relied upon by the prosecution and submitted on 08-03-2017 against co-accused Kishorsinh Bhavsinh Rathod & Bharatsinh Ranjitsinh Kathia. The said application came to be rejected by the Ld. 10th Additional Session Judge, Ahmedabad (Rural) at Mirzapur on 23-02-2018 and on the said day, though one of the accused namely Jay @ Jay Mukhi was not present before the Hon'ble Court, yet in his absence the Ld. Judge framed the charges against rest of the accused.
It is the prosecution case that at about 12.30 pm on 14- 4- 2016, Shri B. C. Solanki, Additional Police Commissioner, S.0.G. Ahmedabad, received a confidential information that "Shri Narendra Dhirajlal Page 3 of 26 R/CR.MA/6374/2018 JUDGMENT Kacha, Kishore Bhavansinh Rathod as well as Jay Mukhi of Maharashtra have conspired together and have illegally obtained without permit Ephedrine material from some factory situated at Maharastra-Solapur and have been unloaded at the shed which is in possession of Narendra Kacha and situated next to M.D.Steel factory belonging to Jayesh Patel, on the road near Vehlal village, Taluka:- Daskroi and preparation are made to send the said material to another country". It is further the prosecution case that since all the S.O.G units were under the purview and control of ATS squad, the said information was parted with Shri O P, Additional Police, ATS. who in turn passed on the said information to Shri V, R. Malhotra, Police Inspector, ATS with a instruction to carry out raid at the said premises. It is further the prosecution case that the said information was registered in Confidential Register as 4 of 2016 and immediately called several officers to be part of the raid. It is further the prosecution case Shri R.K.Solanki, Police Sub- Inspector was instructed to call 2 persons as Panch Witness and at 2.30 pm two person namely (1) Rakeshbhai Gordhanbhai Gajjar & (2) Brijen Dilipkumar Mehta came to brought before complainant who in turn introduced the raiding party and inquired about the willingness to remain as Panch witnesses. It is further the prosecution case that at about 3.45 pm the raiding party reached the place of incident where 3 person were sitting. It is further the prosecution case that on making inquiry about their name, the said 3 persons gave their names as (1) Narendra Dhirajlal Kacha (2) Pareshbhai Sureshbhai Patel & (3) Ashwinbhai kalubhai Bamaniya and it was informed the shed is in possession of Shri Narendra Kacha and other 2 are workers of Narendra Kacha. It is further the prosecution case that thereafter in presence of the Panchas the premises was searched whereby 55 polythene bag were found lying in straight line whereon 52 polythene bag had details written in English PP (Poly Propylene) PROPEL for Industrial Use only, Indian Oil Corporation Limited, Panipat Haryana, on 2 Repol Polypropylene and on 1 Reliance Ind. Ltd. It is further the prosecution case that on opening one polythene bag it was noticed another polythene bag inside whereon it was written Avon Organics Ltd; Sadashivpet -- AP and on opening the said bag another black colour plastic bag was found and on opening the said bag another transparent plastic bag was found Page 4 of 26 R/CR.MA/6374/2018 JUDGMENT wherein white colour powder was found and on asking Narendra Kacha it Was revealed that it is Ephedrine material and rest all bag contains same material. It is further the prosecution case that therefore intimation was sent making requesting the presence of FSL Officers at the spot of incident. It is further the prosecution case that at about 5.15 pm the FSL officer with Van reached the spot and from the opened polythene bag took material with a view to inspect the material through Narcotic kit and prima facie inspection indicated the material could be Amphetamine derivatives. It is further the prosecution case that thereafter all the polythene bag were got opened which was found packed in similar manner as indicated above and from each bag some material was inspected whereby prima facie it indicated the material could be Amphetamine derivatives. It is further the prosecution case that therefore all the 55 polythene bag weighing about 1364 kgs was seized and 50 - 50 gms material from each bag was packed for FSL and police reserve sample.
4. Based on the said FIR, investigation commenced and it appears from record that on 07-06-2016, the I.O. submitted charge sheet against Narendrabhai Dhirajlal Kacha whereby in Column no. 2 of the said charge sheet it indicated WANTED ACCUSED:-(1) Kishoresinh Bhavansinh Rathod (2) Bharatsinh Ranjitsinh Kathiya (3) Punit Ramesh Shringi (4) Jay @Jay Mukhi
5. Though the petitioner was not named in the FIR nor his name was disclosed by I.O. as WANTED ACCUSED in column no. 2 in the charge sheet filed against Narendra Kacha yet on 23-06-2016 at 8 am the present petitioner came to be arrested. It is respectfully submitted that the I.O. after investigation has submitted charge sheet against (1) Punit Ramesh Shringi (2) Manoj Tejaram Jain (3) Jay @ Jay Mukhi whereby in column no. 2 of the said charge sheet it indicated WANTED ACCUSED:- (1) Kishoresinh Rathod (2) Bharatsinh Kathia (3) Vicky Goswami resident of Kenya (4)Dr. Abdulla & his 2 accomplice resident of Tanziniya.
After submission of the charge-sheet against Manoj Jain & Page 5 of 26 R/CR.MA/6374/2018 JUDGMENT others, the I.O. continued the investigation and effectuated arrest accused Kishoresinh Rathod on 09-01- 02017 & accused Bharatsinh Kathiya on 23-01-2017 and submitted charge~sheet against them on 08-03-2017.
On bare reading of the charge-sheet folio, it appears that the I.O. has recorded statement of some more witnesses who are cited as witnesses in the additional charge-sheet submitted on 08-03-2017 against accused Kishoresinh Rathod & Bharatsinh Kathiya and the copies of the said witnesses are not supplied to accused Manoj Jain as per Sec.207 of Cr.P.'C. 1973.. The details of said witnesses who are numbered as witness no. 57 to 59 are as under
and on verifying the record and on reading the statement of the said witnesses in the court, the gist of the statement stands as under
Sr. No. NAME OF WITNESSES PARTICULARS 1 Babasahed Shankar Dhotre Labour contractor & Transporter Got Loaded 55 bags from Avlon life science company in the Chota Hati tempo at the instance of Punit Shringi Statement dated 14.09.2016.
2 Kishore Kabeshwar Jha Produced register of Hotel Sunshine indicating accused Bharatsinh & Kishore stayed Statement dated 16.01.2017 3 Nitinkumar @ Lalo Knew Kishoresinh Rathod and Chandanlal Thakkar Bharatsinh Kathia and was staying in different room at Hotel Sunshine Statement daetd 20.02.2017
7. That the statement dated 14-09-2016 of Babasaheb Shankar Dhotre is crucial statement which indicates for the first time that the 55 bags that were seized by ATS squad, were loaded from factory premises of Avlon Life Science company and therefore supply of the copy of the said statement is of utmost importance to accused Manoj Jain. This statement is not forming part of the charge-
sheet along with relevant documents submitted and supplied to accused Manoj Jain as the charge-sheet Page 6 of 26 R/CR.MA/6374/2018 JUDGMENT submitted against accused Manoj Jain and others was on 07-08-2016 whereas the statement of Babasaheb Dhotre is recorded on 14-09-2016 i.e. after submission of charge-sheet against accused Manoj Jain & others.
Though, the application vide Exh. 8 was submitted to supply copy of the additional charge-sheet folio and relevant documents relied upon, by the prosecution in the said additional charge-sheet as per Sec. 207 of Cr.P.C. 1973 yet the learned judge brushed aside the said prayer by observing in para 5 as under
"It would also be pertinent to mention over here that the charge-sheet filed against the present accused / applicant is the second chargesheet in the series and by the time it was filed the investigation of the offence was complete in respect of present accused / applicant. As the arrest of the rest of the accused persons could not be effected by that time the final charge- sheet was not filled and after their arrest the third charge-sheet has also been filed. But so far as the involvement of the present accused / applicant is concerned the entire investigation was complete and hence, all the relevant case papers were made part of the bulk provided to the accused in compliance of Sec. 207 of Cr.P.C. Hence, in my opinion there is sufficient compliance of Section 207 Cr.P. C. in the case on hand' That in the entire charge-sheet submitted against Manoj Jain & others, there is not an iota of evidence ' which would remotely even indicate that on 03-04-2016, at about 7.00 pm , 55 bags of Ephedrine were loaded in Transporter Baba Dotre tata 407 truck from the factory premises of Avlon Life Sciences and was kept at a safe place and this aspect is for the first time forthcoming on bare reading of the statement of witness Babasaheb Shankar Dhotre recorded on 14-09-2016 by the ATS police and the said statement is not forming part of the charge-sheet submitted against accused Manoj Jain and others."
3. It appears from the materials on record that on 23rd Page 7 of 26 R/CR.MA/6374/2018 JUDGMENT February, 2018, the learned advocate appearing for the applicant herein, in the court below, preferred an application Exh.8, wherein it was prayed that the papers of the supplementary charge-sheet be supplied to the accused and the proceedings of the NDPS Case be adjourned to any future date. The application Exh.8 reads as under;
"Before the Court of Ld. District and Sessions Judge at Ahmedabad Sp. Case no.
N.D.P.S. 6 / 2016 Complainant:- The State v/s Accused:- Manoj Jain Subject:- To grant short adjournment as the papers of the charge sheet were provided on the last adjournment date and as I want to prefer a discharge application after studying the same, and to provide copies of the supplementary charge sheet.
It is the humble prayer of the accused Manoj Jain that, the copy of the charge sheet in this said offence was provided to me on the last adjournment date. In connection with the same offence, charge sheet has already been filed against the other accused persons and even, thereafter, the supplementary charge has also been filed against the other accused persons.
I have not received the copy of the charge sheet earlier filed and I have also not received the statements of further evidences regarding the charge sheet of the other accused persons filed after my charge sheet.Page 8 of 26
R/CR.MA/6374/2018 JUDGMENT As per section 207 of the Criminal Procedure Code, we - the accused persons are entitled to receive all the investigation papers for our defence.
Therefore, it is humbly prayed, (1) To pass order as per section 207 of the Cr.P.C. to provide me copies of the further evidences and statements recorded in the supplementary charge sheet (N.D.P.S. Complaint no. 2/2017) filed against the other accused persons by the Investigating Officer after my charge sheet was filed so that after studying the same, I may be able to submit proper discharge application in my defence.
(2) Kindly grant any other relief which may deem fit."
4. It appears that the court below thought fit to reject the application Exh.8 on the very same day by passing the following order;
"(1) The accused/applicant is an under trial prisoner along with another accused and they are facing charges under section 25-A read with section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act). The case is listed today for framing of the charge against the accused persons but the Ld. Counsel for the accused no.2 Manoj Tejraj Jain, has sought an adjournment and has also preferred the instant application at Exhibit 8.
(2) Before going to discuss the instant application and its merits, a brief background is required to be discussed here. In the case at hand the FIR was registered on 15.04.2016 and later on charge-sheet was filed against the present accused on 07.08.2016. Since then the matter was pending for framing of the charge . As the accused persons in the present case are in Mumbai Jail Page 9 of 26 R/CR.MA/6374/2018 JUDGMENT various letters were written to the concerned jail authorities to produce the accused before this Court for framing of the charge. The accused/applicant was brought before this Court on 12.02.2018 and on that day learned Counsel Mr. J.M. Pathan filed his 'vakalatnama' for the accused/applicant. The Ld. Counsel of the accused/applicant was also provided with the copy of all the police papers making sufficient compliance of section 207 of CrPC. But as all the three accused were not brought before the court on 12.02.2018 another date, i.e, 23.02.2018 was given for framing of the charge. The accused as well as his Ld. Counsel was informed that the next date i.e. 23.02.2018 is fixed for framing of the charge to which both of them agreed. Now today another Counsel, Mr. V.P. Barot appeared for the accused/applicant and stated that he shall file his vakalatnama for representing accused/applicant and as his senior counsel wishes to peruse the matter and wishes to move a discharge application in this case, he requested that the matter be adjourned today and the charge be not framed. The Ld. Counsel was informed that the charge-sheet has been filed way back in August 2016 and since then for one or the other reason the charge could not be framed in this case. On last date also the accused/applicant as well as his counsel were duly informed that on the next date the charge shall be framed and hence, in such a case no further adjournment can be given now. The Ld. Counsel then argued that they also wants to move an application for re-testing of the samples of the contraband recovered in this case and for that reason also they needs time and again prayed that the charge be not framed. To this the Ld. Counsel was reminded of the fact that the same application on behalf of one of the co-accused in connected NDPS Case No.02/2017 has already been rejected by this Court on 12.02.2018. The Ld. Counsel although shows his awareness about the said order, but he contended that he wishes to move separate application on behalf of the present accused/applicant for the simple reason being that in that application the present accused/applicant was not a party. But I do not concur with this contention and also as the contraband recovered is the same and only by way of supplementary charge sheets separate NDPS case numbers have been assigned there is no point in adjourning the matter for this very reason. When the Ld. Counsel Mr. Barot found that in any way the charge Page 10 of 26 R/CR.MA/6374/2018 JUDGMENT is going to be framed today he preferred the instant application through accused/applicant, exh.8 seeking adjournment on further new grounds.
(3) By way of the instant application the Ld. Counsel Mr. Barot has contended that he needs the copies of all the police papers filed along with the supplementary charge-sheet and also the copies of two other charge-
sheets filed in this case for proper compliance of section 207 of CrPC and till then the charge should not be framed. It would not be out of place to mention over here that the Ld. Counsel for all other accused persons in all the three cases were not agreeing with the contentions made in the present application and on the other hand they have prayed that as the matter is already delayed the charge should be framed and the matter should be proceeded as early as possible.
(4) The crux of the entire discussion above is that the Ld. Counsel Mr. Barot do not want that the charge be framed today and for that reason he sought adjournment to one or the other ground but this kind of delaying and pressure tactics cannot be permitted.
(5) Furthermore, the accused/applicant had already been provided with the copies of all the police papers in the present sessions case no.06/2016. It would also be pertinent to mention over here that the charge-sheet filed against the present accused/applicant is the second charge-sheet in the series and by the time it was filed the investigation of the offence was complete in respect of the present accused/applicant. As the arrest of the rest of the accused persons could not be effected by that time the final charge-sheet was not filed and after their arrest the third charge-sheet has also been filed. But so far as the involvement of the present accused/applicant is concerned the entire investigation was complete and hence, all the relevant case papers were made part of the bulk provided to the accused in compliance of sec. 207 of CrPC. Hence, in my opinion there is sufficient compliance of section 207 of CrPC in the case at hand. For these reasons the instant application moved by the accused/applicant does not seems to be having any genuine or legal ground.
Page 11 of 26R/CR.MA/6374/2018 JUDGMENT (6) Considering the entire facts and circumstances of the case as well as taking into account the ultimate object with which this application is moved I am of the considered opinion that it must be rejected in the interest of justice.Hence, the final order.
ORDER The application at Exh.8 is rejected."
5. It further appears that as soon as the application Exh.8 came to be rejected, the Trial Court, thereafter, proceeded to frame the charge Exh.5. The charge reads as under;
"Before the Court of 10th Additional District Judge of Ahmedabad (Rural), at Ahmedabad.
N.D.P.S. Case No. : 06 /2016 Exhibit-5 :: Charge-sheet ::
I, Shri R.P.S. Raghav, 10th Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, frame charges against the accused no. (1) Punit Ramesh Shringi, age-46, residing at 605, Aboli Building, Virar Garden, Agasi Road, Virar West, Paldhar, Maharashtra (2) Manoj Tejraj Jain, age-47, residing at 4/A, Shefali Mahim Makrand Society, Vir Savarkar Marg, Mahim, Mumbai, Maharashtra that, The arrested accused no. (2) Manoj Tejraj Jain and the accused no. (3) Jay @ Jay Mukhi Muljibhai Mukhi mentioned in the column no. (1) of the charge-sheet and the accused (1) Kishorsinh Bhavsinh Rathod and (2) Vikki Goswami and (3) Doctor Abdulla mentioned in the column no. (2) and two of his accomplices held a meeting at Page 12 of 26 R/CR.MA/6374/2018 JUDGMENT Hotel Bliss, Mombasa, Kenya on 09-01-2016. The accused Manoj Tejraj Jain hatched the criminal conspiracy to send the stock of an intoxicating substance namely Ephedrine from his Avon Life Sciences company located in Solapur M.I.D.C. at the rate of Rs. 60,000/- per kg to Vikki Goswami and Doctor Abdulla through Kishorsinh Bhavsinh Rathod to Kenya.
Thereafter, the accused Vikki Goswami sent total Rs. 91,90,000/- in installments through hawala and angadiya during the period between 18th January, 2016 and March, 2016 as advance for the deal of intoxicating substance Ephedrine in the name of the accused Jay Mukhi. Out of the said amount, the accused Manoj Jain received Rs. 51,50,000/-, the accused Kishorsinh Bhavsinh Rathod received Rs.27,00,000/-, the accused no. (1) Punit Ramesh Shringi received Rs.6,40,000/- and the accused Jay Mukhi received Rs.7,00,000/-.
Thereafter, the intoxicating substance Ephedrine was obtained through Mr. Rathod from the company namely Avon Life Sciences at Solapur belonging to you - the accused Manoj Tejraj Jain and then, it was made colour- less in the chemical factory of the accused Narendra Dhirajlal Kacha situated beside the M.D. Steel factory, at the entrance of Vahelal Village of Daskroi Taluka. As the said consignment was to be sent to the accused persons Vickey Goswami and Dr. Abdulah at Kenya, you - the accused Punit Ramesh Shringi got 55 bags of intoxicating substance Ephedrine loaded in TATA-407 of transport truck of Baba Dotre from the go-down of Avon Life Sciences factory, M.I.C.C., Chincholi, Solapur, at 07:00 PM on 03/04/2016 and thereafter, kept it at a safe place. Thereafter, on 12/04/2016, the accused Jay Muki and Bhartsinh Kathiya got those 55 bags of Ephedrine loaded in the truck of the driver Rajendrasinh Parvinsinh bearing registration number GJ-12-AT-8544 and sent the same to the factory of the accused Narendra Dhirajlal Kacha situated beside M.D. steel factory at the entrance of Vahelal Village of Daskroi Taluka on 14/04/2016. During the raid on 14/04/2016 at 22:00 hours, accused Narendra Dhirajlal Kacha was held with an illegal consignment of intoxicating substance Ephedrine weighing 1339.250 k.g. totaling value of Rs. 2,67,85,00,000/- without pass-permit Page 13 of 26 R/CR.MA/6374/2018 JUDGMENT from the shade of the factory under his possession and ownership. The accused persons as mentioned in column- 1 were arrested afterwards. Thereby, you - the three accused persons have committed offence punishable u/s. 25 (A) read with section-29 of the Narcotics Drugs and Psychotropic Substances Act.
You both the accused persons have committed the aforesaid offences within the jurisdiction of this Court. Therefore, I hereby order to conduct further trial of these offences.
Note :- Charges were read over to the accused persons in Hindi language. "
6. The principal argument of Mr. Shah, the learned counsel appearing for the applicant is that although his client was provided with the papers of the charge-sheet filed against the applicant, yet, as later a supplementary charge sheet came to be filed by the Investigating Officer in connection with the other co-accused, the applicant was entitled in law to ask for the papers of the said supplementary charge-sheet. According to Mr. Shah, if the papers of the supplementary charge sheet would have been provided to the applicant, then after studying the same, the applicant could have preferred a discharge application before the Trial Court. Mr. Shah submits that the court below showed undue haste in not only rejecting the application Exh.8, but proceeding further on the very same day to frame the charge against the applicant. This, according to Mr. Shah, has caused a serious prejudice to his client as his client was not able to prefer a discharge application. The endevour on the part of Mr. Shah is to persuade this Court to accept the argument that the supplementary charge-sheet contains few statements of the witnesses, which if read Page 14 of 26 R/CR.MA/6374/2018 JUDGMENT thoroughly, would exonerate the applicant from the criminal prosecution. In such circumstances, referred to above, Mr. Shah prays that the order framing charge be quashed and the applicant may be permitted to file a discharge application on furnishing all the papers of the supplementary charge-sheet. Mr. Shah, in support of his submissions, has placed reliance on two decisions of the Supreme Court (i) Jahid Shaikh & Ors. vs. State of Gujarat & Anr., (2011) 7 SCC 762 and (ii) State of U.P. vs. Lakshmi Brahman & Anr., AIR 1983 SC 439.
7. On the other hand, this application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State. Mr. Amin would submit that no error, not to speak of any error of law, could be said to have been committed by the court below in rejecting the application Exh.8 as well as in proceeding to frame the charge against the applicant-accused.
8. Mr. Amin would submit that no prejudice could be said to have been caused to the applicant in any manner. Mr. Amin submitted that even otherwise the applicant is entitled to have the papers of the supplementary charge-sheet, and the same shall be definitely provided to him if not yet provided. However, according to Mr. Amin, there is no good reason for this Court to quash the charge now at this stage and permit the applicant to prefer a discharge application. In such circumstances, Mr. Amin prays that there being no merit in this application, the same be rejected.
Page 15 of 26R/CR.MA/6374/2018 JUDGMENT
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order.
10. There need not be any debate on the proposition of law that the applicant-accused is entitled to be furnished with the papers of the supplementary charge-sheet filed in the case of the other co-accused. The reason is plain and simple. On whatever materials, the prosecution seeks to rely upon, such materials has to be supplied to the accused so that he can prepare himself with his defence. However, the moot question which I need to decide is whether I should go to the extent of quashing the charge so as to give an opportunity to the applicant herein to file a discharge application before the court below.
11. The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold Page 16 of 26 R/CR.MA/6374/2018 JUDGMENT that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases. (see State of Delhi vs. Gyan Devi, 2000 (8) SCC 239.)
12. In this connection I may refer to the case of Radhey Shyam v. Kunj Behari & Ors. etc., [1989] Suppl. 2 SCC 572; (AIR 1990 SC 121: 1990 Cri LJ 668), in which a bench of three learned Judges of the Supreme Court referring to the decision in Mohd. Akbar Dar Ors. v. State of Jammu and Kashmir & Ors., [1981] Supp. SCC 80 (AIR 1981 SC 1548: 1981 Cri LJ 1135), pointed out that at the stage of framing of charges meticulous consideration evidence and materials by the Court is not required. The Supreme Court further observed:
"The High Court has also deemed it necessary to quash the charge against respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh, [1977] 4 SCC 39 : (AIR 1977 SC 2018: 1977 Cri LJ 1606). We find that the High Court's conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based.Page 17 of 26
R/CR.MA/6374/2018 JUDGMENT We, therefore, find that there was no warrant for the High Court to quash the charge against respondents 1 to 3 in exercise of its powers under Section 482 Cr.P.C..."
13. In the case of Minakshi Bala v. Sudhir Kumar & Ors., [1994] 4 SCC 142, the Supreme Court considered the question of quashing of charge by the High Court invoking its inherent jurisdiction under Section 482 Cr.P.C. In that context, the Court made the following pertinent observations:
".....To put it differently, once charges are framed under Section 240 Cr.P.C the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 Cr.P.C; nor would it be justified in invoking its inherent jurisdiction under Section 482 Cr.P.C to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. "
14. The case at hand is not one, in which, the charge Exh.5 against the applicant came to be framed without furnishing the papers of the charge sheet filed by the Investigating Agency so far as the applicant is concerned. It is only when the applicant- accused herein came to know about the supplementary charge-sheet filed against the co-accused that he thought of filing a discharge application, and on such ground, prayed before the Trial Court to adjourn the proceedings. I may only say that when the charge came to be framed against the applicant herein, all the necessary materials in the form of the charge-sheet filed against the applicant was before the court and having gone through those materials, the court thought fit to frame the charge. Any subsequent filing of the Page 18 of 26 R/CR.MA/6374/2018 JUDGMENT supplementary charge-sheet so far as the other co-accused are concerned, by itself, in my opinion, cannot be a ground to quash the charge, and that too, on the premise that on the basis of such supplementary charge-sheet, the applicant herein could have preferred a discharge application. As I have noted above the applicant is otherwise entitled to receive the papers of the supplementary charge-sheet, and in the course of the trial he would be cross-examining all those witnesses if examined by the prosecution whose statements form part of the supplementary charge-sheet. Therefore, as such, it cannot be said that the provisions of section 207 of the Cr.P.C have not been complied with.
15. The Supreme Court, in a very recent pronouncement in the case of Asian Resurfacing of Road Agency Pvt. Ltd. Vs CBI, 2018 (2) RCR (Criminal) 415 has laid much emphasis on the proposition of law that the power of the High Court under section 482 Cr.P.C or Article 227 of the Constitution to interfere with an order framing charge and to grant stay should be exercised only in an exceptional situation. The Supreme Court was dealing with a matter under the provisions of the Prevention of Corruption Act, 1988. In the said case, the order, framing of charge, was challenged. The Supreme Court took the view that as such there is no bar to the jurisdiction of the High Court to consider a challenge against an order of framing charge, but the same should only be in exceptional situation. Exercise of such jurisdiction has to be limited to rarest of rare cases. Let me quote the relevant observations of the Supreme Court in this regard.
Page 19 of 26R/CR.MA/6374/2018 JUDGMENT "20. The principles laid down in Madhu Limaye (supra) still hold the field and have not been in any manner diluted by decision of four Judges in V.C. Shukla versus State through CBI, (1980) Supp. SCC 92 or by recent three Judge Bench decision in Girish Kumar Suneja versus Central Bureau of Investigation, (2017) 14 SCC 809 . Though in V.C. Shukla (supra), order framing charge was held to be interlocutory order, judgment in Madhu Limaye (supra) taking a contrary view was distinguished in the context of the statute considered therein. The view in S.Kuppuswami Rao (supra), was held to have been endorsed in Mohanlal Maganlal Thacker (supra) though factually in Madhu Limaye (supra), the said view was explained differently, as already noted. Thus, in spite of the fact that V.C. Shukla (supra) is a judgment by Bench of four Judges, it cannot be held that the principle of Madhu Limaye (supra) does not hold the field. As regards Girish Kumar Suneja (supra), which is by a Bench of three Judges, the issue considered was whether order of this Court directing that no Court other than this Court will stay investigation/trial in Manohar Lal Sharma versus Principal Secretary and ors., (2014) 9 SCC 516 [Coal Block allocation cases] violated right or remedies of the affected parties against an order framing charge. It was observed that the order framing charge being interlocutory order, the same could not be interfered with under Section 397(2) nor under Section 482 Cr.P.C. (Paras 24,25, 27). It was further held that stay of proceedings could not be granted in PC Act cases even under Section 482 Cr.P.C. It was further observed that though power under Article 227 is extremely vast, the same cannot be exercised on the drop of a hat as held in Shalini Shyam Shetty versus Rajendra Shankar Patil, (2010) 8 SCC 329 as under :
"37. ... This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 of the Constitution is meant for protection of individual grievance. Therefore, the power under Article Page 20 of 26 R/CR.MA/6374/2018 JUDGMENT 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above."
21. It was observed that power under Section 482 Cr.P.C. could be exercised only in rarest of rare cases and not otherwise.
38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.
22. Reliance was also placed on judgment by seven Judge Bench in Kartar Singh versus State of Punjab, (1994) 3 SCC 569 laying down as follows :
"40. ...If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed [(1994) 2 SCC 664] that if the High Court is inclined to entertain any application under Article 226, that power Page 21 of 26 R/CR.MA/6374/2018 JUDGMENT should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in straitjacket."
23. It was further observed that no stay could be granted in PC Act cases in view of bar contained in Section 19(3)(c). The relevant observations are :
64. A reading of Section 19(3) of the PC Act indicates that it deals with three situations: (I) Clause (a) deals a situation where a final judgment and sentence has been delivered by the Special Judge. We are not concerned with this situation. (ii) Clause (b) deals with a stay of proceedings under the PC Act in the event of any error, omission or irregularity in the grant of sanction by the authority concerned to prosecute the accused person. It is made clear that no court shall grant a stay of proceedings on such a ground except if the court is satisfied that the error, omission or irregularity has resulted in a failure of justice--then and only then can the court grant a stay of proceedings under the PC Act. (iii) Clause (c) provides for a blanket prohibition against a stay of proceedings under the PC Act even if there is a failure of justice [subject of course to Clause (b)]. It mandates that no court shall stay proceedings "on any other ground" that is to say any ground other than a ground relatable to the error, omission or irregularity in the sanction resulting in a failure of justice.
65. A conjoint reading of clause (b) and clause (c) of Section 19(3) of the PC Act makes it is clear that a stay of proceedings could be granted only and only if there is an error, omission or irregularity in the sanction granted for a prosecution and that error, omission or irregularity has resulted in a failure of justice. There is no other situation that is contemplated for the grant of a stay of proceedings under the PC Act on any other ground whatsoever, even if there is a failure of justice. Clause (c )additionally mandates a prohibition on the exercise of revision jurisdiction in respect of any interlocutory order passed in any trial such as those that we have already referred to. In our opinion, the provisions of clauses (b) Page 22 of 26 R/CR.MA/6374/2018 JUDGMENT and (c) of Section 19(3) of the PC Act read together are quite clear and do not admit of any ambiguity or the need for any further interpretation."
24. We may also refer to the observations of the Constitution Bench in Ratilal Bhanji Mithani versus Asstt. Collector of Customs, Bombay and Anr., [1967] 3 SCR 926 about the nature of inherent power of the High Court:
"The inherent powers of the High Court preserved by Section 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Art. 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were contained in force by Article 372 of the Constitution."
25. As rightly noted in the impugned judgment, a Bench of seven Judges in L.Chandra Kumar (supra) held that power of the High Court to exercise jurisdiction under Article 227 was part of the basic structure of the Constitution.
26. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 Cr.P.C., the principle laid down in Madhu Limaye (supra) still holds the field. Order framing charge may not be held to be purely a interlocutory order and can in a given situation be interfered with under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation.
27. We have thus no hesitation in concluding that the High Court has jurisdiction in appropriate case to consider the challenge against an order framing charge Page 23 of 26 R/CR.MA/6374/2018 JUDGMENT and also to grant stay but how such power is to be exercised and when stay ought to be granted needs to be considered further.
28. As observed in Girish Kumar Suneja (supra) in the PC Act cases, the intention of legislature is expeditious conclusion of trial on day-to- day basis without any impediment through the stay of proceedings and this concern must be respected. This Court also noted the proviso to Section 397(1) Cr.P.C. added by Section 22(d) of the PC Act that a revisional court shall not ordinarily call for the record of proceedings. If record is called, the Special Judge may not be able to proceed with the trial which will stand indirectly stayed. The right of the accused has to be considered vis-à-vis the interest of the society. As already noted, the bench of seven Judges in Kartar Singh (supra) held that even constitutional power of the High Court under Article 226 which was very wide ought to be used with circumspection in accordance with judicial consideration and well established principles. The power should be exercised sparingly in rare and extreme circumstances.
29. It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability."
16. In Bharat Parikh vs. CBI, 2008 (10) SCC 109, the Supreme Court observed as regards the High Court's powers to look into the materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under section 482 of the Code for quashing the charges framed. I may quote para-16 as it is very relevant;
Page 24 of 26R/CR.MA/6374/2018 JUDGMENT "16. With regard to the second proposition regarding the High Court's powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and/or charges and claims to be tried. It is only in the exceptional circumstances enumerated in State of Haryana vs. Bhajan Lal 1992 Suppl.(1) SCC 335, that a criminal proceeding may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution had produced sufficient material for charges to be framed. As observed in Debendra Nath Padhi's case (supra) at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused has to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure. "
17. The two judgements of the Supreme Court, relied upon by Mr. Shah in the case of Lakshmi Brahman (supra) and Jahid Shaikh (supra) are not of any assistance as such because I have made myself very clear that the applicant is entitled to receive the papers of the supplementary charge-sheet and I have also observed above that if the papers have not been provided, then the same shall be furnished to the applicant at the earliest so that he can study those papers and prepare his defence. However, I am not persuaded in the facts of this case to quash the charge so as to enable the applicant to prefer a discharge application on the basis of the supplementary Page 25 of 26 R/CR.MA/6374/2018 JUDGMENT charge-sheet filed in the case of the co-accused persons.
18. In the result, this applications fails and is hereby rejected. The Trial Court shall proceed further with the proceedings of the NDPS Case No.06 of 2016 in accordance with law.
(J.B.PARDIWALA, J) Vahid Page 26 of 26