Manipur High Court
Kangujam Ananda Meitei vs Cbi on 21 January, 2020
Equivalent citations: AIRONLINE 2020 MPR 40
Author: Mv Muralidaran
Bench: Mv Muralidaran
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril.Revision No.10 of 2019
Kangujam Ananda Meitei, 47 years s/o (L) Nilo Metei, r/o
Bashikhong Wangkhei Loumanbi Mapal, P.O. Kitanapanung & P.S
Irilbung, Imphal West District, Manipur, Pin- 795008.
... Petitioner
- Versus -
CBI, SCB, Kolkata
... Respondent
B E F O R E HON'BLE MR. JUSTICE MV MURALIDARAN For the petitioner :: Mr. N. Mahendra, Adv. For the respondent. :: W. Darakishwar, Adv.
Date of hearing and
Reserved for order. :: 22.11.2019.
Date of judgment &
Order. :: 21.1.2020.
JUDGMENT & ORDER
(CAV)
[1] This Criminal Revision Petition has been filed by the
petitioner, who has been arrayed as accused No.14 in S.T.No.34 of 2016 on the file of the learned Special Judge, ND & PS, Manipur preferred against the order dated 3.4.2019, whereby Cril.Rev.No.10 of 2019 Page 1 Page |2 ordering to frame charges under Sections 420, 468, 471 read with Section 34 IPC and Section 22(c) and 29 of ND & PS Act. [2] The contention of the petitioner is that the view taken by the learned Special Judge is manifestly wrong and as such it has led to miscarriage of justice and therefore, the petitioner is entitled to discharge as there are no materials/evidence to frame charges under Sections 420, 468, 471 read with Section 34 IPC and Section 22(c) and 29 of ND & PS Act against the petitioner. In fact, no presence of the essential ingredients of the offences were on record and no grounds for presuming that the petitioner has committed the alleged offences. Further contention of the petitioner is the materials and documents produced by the prosecution cannot be said to be the facts attracting the ingredients of provisions in Sections 420, 468, 471 read with Section 34 IPC and Sections 22(c) and 29 of ND & PS Act. However, the learned Special Judge, without considering the relevant materials and the real involvement of the petitioner in the alleged crime, wrongly ordered to frame charges against the petitioner also and if it is allowed to frame charges against the petitioner, he would put to much hardship and he has to unnecessarily face the trial of the case.
Cril.Rev.No.10 of 2019 Page 2
Page |3
[3] Per contra, the learned counsel for the CBI submitted
that there are lot of materials to connect the petitioner with the other accused particularly accused No.3 for commission of the offence and having considered the statements of witnesses, the learned Special Judge has rightly framed charges against all the accused including the petitioner. Since the order of framing charges against the petitioner is in accordance with law, there is no necessity to interfere with the order of the learned Special Judge insofar as the petitioner is concerned. He would submit that the prosecution is ready to establish its case against the accused persons including the petitioner.
[4] Heard the learned counsel for either parties and also perused the materials available on record. [5] According to the respondent CBI, the accused Nos. 1, 2, 4, 5, 6 and 7 were well acquainted with each other. Accused Nos.1 and 2 were also acquainted with accused No.3 and had loaded the Tata Safari of accused No.3 with drugs after changing the registration number plate. Accused No.14 (petitioner herein), who is the Proprietor of M/s.Ananda Medical Stores, Imphal, Manipur, was involved in the sale of Ektamin with batch No.7072 recovered from accused No.3 by forging documents and cheating Cril.Rev.No.10 of 2019 Page 3 Page |4 with a common intention to possess, sell or export illegal drugs and there are enough materials to frame charges against him. [6] It is seen from the records that on 24.02.2013, on getting information about plying of some vehicles on NH-102 from Imphal to Moreh loaded with illegal drugs, a mobile check post was Iaunched under the supervision of Deputy Superintendent of Police, Operations, Thoubal along with the Inspector of Police and team in front of Pallei Police station. At around 7.30 A.M., one white colour Bolero bearing registration No.AS-01BA 8699 with sticker written "Army" in front of glass was stopped for frisking in front of Pallei Police Station. During check, the following eight pockets containing illegal drugs were recovered:
(i) 6400 strips of Respifed Pseudoephedrine tablets packed inside a white plastic rice bag.
(ii) 9000 strips of Polyfed-C Pseudoephedrine tablets packed inside a brown paper box.
(iii) 9300 strips of Polyfed-C Pseudoephedrine tablets packed inside a brown paper box.
(iv) 9000 strips of Polyfed-C Pseudoephedrine tablets packed inside a brown paper box.
Cril.Rev.No.10 of 2019 Page 4
Page |5
(v) 8700 strips of Polyfed-C Pseudoephedrine tablets packed inside a brown paper box.
(vi) 27200 strips of Omkof Pseudoephedrine tablets packed inside a red air bag.
(vii) 7720 strips of Respifed Pseudoephedrine tablets packed inside a green air bag.
(viii) 4960 strips of Polyfed-C Pseudoephedrine tablets packed inside a brown paper box.
[7] Two other vehicles bearing registration No.MN-04A 8390 and MN02A 0369 were also intercepted at the same stop of Police Station and nine bags of illicit drugs were recovered from accused Nos.4 and 5 from the vehicle MN-04A 8390. 14 bags of illicit drugs were recovered from accused Nos.6 and 7 from the vehicle MN02A 0369 and after recovery, accused Nos.1,2, 4,5,6 and were arrested. Based on the statement of accused No.1 regarding concealment of illicit drugs inside the house of accused No.3, on 25 .2.2013 night, a search was made in the house of accused No.3 and the following drugs were recovered and arrested him:
Cril.Rev.No.10 of 2019 Page 5
Page |6
(i) one thermocold box containing 621 nos.of Ketamine Hydrochloride injection IP Ektamin 500mg.
(ii) one thermocold box containing 495 nos. of Ketamine Hydrochloride injection IP Ektamin 500mg.
(iii) one thermocold box containing 604 nos. of Ketamine Hydrochloride injection IP Ektamin 500mg.
(iv) One thermocold box containing 596 nos. of Ketamine Hydrochloride injection IP Ektamin 500mg. [8] It is also seen that accused Nos.8,9, 10, 11, 12 and 13 were involved in purchase and sell of Omkof tablets, which were among the tablets seized from the arrested accused. The petitioner' who is the Proprietor of M/s.Ananda Medical stores, Imphal, was involved in the sale of Ektamin injection which were seized from accused No.3.
[9] Though the petitioner contend that he is no way connected with the alleged crime, he has failed to produce any documents to prove from whom he received Ektamin injection and subsequently, sold the same.
According to the respondent CBI, the petitioner has conspired in Cril.Rev.No.10 of 2019 Page 6 Page |7 transporting huge quantity of Ketamine along with other accused persons and sold the same by violating the terms and conditions stated in the license.
[10] The learned counsel for the petitioners argued that the petitioner has licence to sell drugs under Drugs and Cosmetics Act, 1940 and he cannot be charged under Section 22(c) and 29 of ND & PS Act and at best the respondent police can initiate proceedings only under Drugs and Cosmetics Act. He would submit that no violation of provisions of Section 8 of ND & PS Act and therefore, no penal consequences will lie. In support, the learned counsel placed reliance upon the decision in State of Punjab v. Rakesh Kumar, reported in (2019) 2 SCC
466. [11] In Rakesh Kumar, supra, the Hon'ble Court held:
"7. At the outset it is essential to note the objectives of the two legislations before us i.e. the Drugs and Cosmetics Act, 1940 and the NDPS Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent substandard drugs and to maintain high standards of medical treatment (Chimanlal Jagjivan Das Sheth v. State of Maharashtra Cril.Rev.No.10 of 2019 Page 7 Page |8 [Chimanlal Jagjivan Das Sheth v. State of Maharashtra, AIR 1963 SC 665 : (1963) 1 Cri U 6211 ).
The Drugs and Cosmetics Act, 1940 was mainly intended to curtail the menace of adulteration of drugs and also of production, manufacture, distribution and sale of spurious and substandard drugs. On the other hand, the NDPS Act is a special law enacted by Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances. After analysing the objectives of both the Acts, we can safely conclude that while the Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage on the other hand, the NDPS Act intends to curb and penalise the usage of drugs which are used for intoxication or for getting a stimulant effect.
'8.At this juncture, it is also pertinent to note the relevant provisions under the NDPS Act. Section B of the 1985 Act, is the prohibitory clause whose violation would lead to penal consequence:
"8. Prohibition of certain operations.- No person shall-
Cril.Rev.No.10 of 2019 Page 8
Page |9
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-
State, import into India, export from India or tranship any narcotic drug or Psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such license, permit or authorisation :
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-state of ganja for any purpose other than medical and scientific purpose shall Cril.Rev.No.10 of 2019 Page 9 P a g e | 10 take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.'
14. The aforesaid decision in Sanjeev v.
Deshpande case [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri) 496] further clarifies that, the NDPS Act, should not be read in exclusion to the Drugs and cosmetics Act, 1940. Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the respondent- accused amounted to a prima facie violation of section 8 of the NDPS Act, they were charged under Section 22 of the NDPS Act."
[12] Placing reliance upon the decision in the case of State of M.P. v. S.B. Johari and others, reported in (2000) 2 SCC 57, the learned counsel for the petitioner argued that Court has only to see whether prima facie there was sufficient ground for proceeding against the accused' In the case on hand, no prima facie case has been made out by the respondent CBI and therefore, the petitioner has nothing to do with the alleged crime and he should be discharged from the charges.
Cril.Rev.No.10 of 2019 Page 10
P a g e | 11
[13] In S.B.Johari, supra, the Hon'ble Supreme Court
held:'
"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High court, it appears that instead of considering the prima facie case the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the 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 the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case there would be Cril.Rev.No.10 of 2019 Page 11 P a g e | 12 no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Puniabi v. Jitendra Bhimrai Bijjayya tG990) 4 SCC 76 :
1991 SCC (Cri) 471 after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 5331, Union of India v. Prafulla Kumar Samal t(1979) 3 SCC 4 :
1979 SCC (Cri) 6091 and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja t(1979) 4 SCC 274 : 1979 SCC (Cri) 10381 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and Cril.Rev.No.10 of 2019 Page 12 P a g e | 13 documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (emphasis supplied) [14] Admittedly, the petitioner has not objected to the cognizance the other accused have also not by the Special Court.
Prima facie illegal trading of Ektamine was taken by the Special Court. In fact, objected to the cognizance being taken involvement of the petitioner in the established by the respondent by way of showing material to show that batch No.7072 was seized from accused No.3. Since the petitioner was not able to produce any documents to show from whom he received supply orders, the Special Court was right in ordering framing of charges against the petitioner also. In the impugned order, the Special Court observed as under:
"35.While it is fact that there is no direct material to suggest there was communication among the said accused persons, the fact that Cril.Rev.No.10 of 2019 Page 13 P a g e | 14 drugs originating from A8 to A16 had ended up with A1 to A7 without any documents to show bona fide transactions had taken place in good faith is sufficient to give rise to the possibility that they had intentionally and knowingly aided illegal transaction. This is more so because of the fact that relevant documents are alleged to have been forged.
There is nothing to contradict this view in the material on record. If there has been forgery, it is justified to view that it was done to enable illegal transaction and was not merely a case of violating the terms of license.
36. Respifed tablets, Polyfed-C and Omkof contain pseudeophedrine. Pseudeophedrine is a controlled substance. Ketamine is a psychotropic substance and relevant penal provision attracted should be S.22 NDPS Act. A14 was involved with supplying Ektamine tablets recovered from the residence of A3."
[15] Since huge quantity controlled and psychotropic substances are involved in this case, it cannot be viewed lightly. Further, some of the accused have not objected to framing of charges by the Special Court in the present case. Section 8 of ND & PS Act also defined the prohibition control and regulations of certain operations of the narcotics drugs. Section 35 of ND & PS Cril.Rev.No.10 of 2019 Page 14 P a g e | 15 Act speaks about presumption of culpable mental state. The controlled substances viz., psychotropics and ketamine were found in the ND & PS Act. Since there is suspicious on the part of the petitioner, the Special Court was right in ordering framing of charges against the petitioner also. We find no reason to interfere with the impugned order. No valid grounds have been made out to interfere with the impugned order and hence, the petition is liable to be dismissed. Further, pursuant to the impugned order, on 24.5.2019, the Special Court has also framed charges against the petitioner.
[16] In the result, the Criminal Revision Petition is dismissed. No costs.
JUDGE
FR/NFR
John kom
WAIKH
Digitally signed
OM by WAIKHOM
TONEN MEITEI
TONEN Date: 2020.01.21
16:08:26 +05'30'
MEITEI
Cril.Rev.No.10 of 2019 Page 15