Karnataka High Court
State Of Karnataka vs Chetan Tayal S/O. Late Nandakishore ... on 18 August, 2006
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This Revision Petition is filed by the state of Karnataka under Section 397 read with 401 of Cr.P.C. challenging the Order of discharge dated 12.3.03 of respondent Nos. 1 and 2 passed by the XXXIII Addl.City Civil & Sessions Judge Spl.Judge (NDPS), Bangalore in Spl. C.C. NO. 236/2001 fox the offences punishable under Sections 20 and 25 of the NDPS Act and under Section 489(c) r/w. Section 34 of the I.P.C. The main grounds urged by the revision petitioner-State is that, the court-below grossly erred in discharging the respondents-accused for the aforesaid offences in spite of the seizure of contraband charas i.e. narcotic drugs and the counterfeit notes. The reasons assigned by the trial Court that the contraband charas and the counterfeit notes could be planted by the persons who are inimically disposed off towards them is totally incorrect. Whether the complainant who has seized those contraband articles under the provisions of NDPS Act has violated the provisions of the Act has to be ascertained, only after full pledged trial is held. The reasons assigned by the trial Court viz., that there was no physical search of the respondents; that the other premises which is in the occupation of the respondents was not searched for discharging the accused are all irrelevant for coming to a conclusion that the accused are to be discharged. The information received by CW.1 as to the possession of the contraband goods by the accused not being forwarded to his official superior is not a ground to discharge the accused. In order to avoid the delay in trapping the accused, CW.1 rushed to the scene of offence without informing his official superior about the information received by him. The finding recorded in discharging the respondents-accused on the aforesaid grounds and throwing out the case of the prosecution at the threshold on the ground that the mandatory provisions have not been complied with has resulted in miscarriage of justice. The non-compliance of the mandatory provisions may cause some prejudice to the respondents-accused persons but whether the respondents-accused are entitled for discharge in serious offences committed under the NDPS Act and the provisions of IPC. is a question to be answered after trial. The trial court also erred in holding that as the respondents-accused persons have no criminal background, they were entitled for discharge is without proper appreciation of material evidence. Therefore, the impugned order under challenge is liable to be set aside.
2. Heard the arguments of learned S.P.P. for the Revision Petitioner-State and Sri M.T. Nanaiah, learned senior counsel for respondent Nos. 1 and 2.
3. During the course of arguments, learned S.P.P. Mr. Dore Raju submitted that as soon as information was received by CW.1, who was the ACP attached to Ulsoor Gate Police Station from whose jurisdiction the contraband articles have been seized, he had to rush to the office of respondents-accused Nos. 1 and. 2 where allegedly the contraband articles were kept and therefore, the question of CW.1 giving prior information and intimation to his official superior does not arise. Since contraband charas weighing about 267.5 grams and 222 counterfeit currency notes of Rs. 100/- denomination were recovered in the presence of the panchas that itself is sufficient to frame the charge. Further, it is argued that any report submitted by the NCB or the police authorities need not be looked into at the time of framing charge. The raid has been conducted by the ACF-CW.1 and a case has been registered by the Police Inspector. Therefore, considering the fact that the ACP has submitted a favourable report to the respondents, the question that CW.1 has not followed the mandatory provisions etc. does not arise and therefore, the trial Court has not properly appreciated the material placed on record even if any such reports received from the ACP and the concerned police making some allegations against the I.O. or the complainant as well as non-registration of the case by the than P.I. of Ashoknagar Police station on the basis of the case filed by revision petitioner and the report received if any submitted by the Enquiry Officer against the then P.I. is a separate matter. There is a separate forum to enquiry into the matter by initiating departmental proceedings against erring officials who failed to discharge their duty by registering a case. Therefore, it is submitted that at the time of framing the charge, the Court is required to see whether any prima facie case is shown to frame the charge and proceed to trial. Even if any mandatory procedures have not been complied by the I.O., law will not come to the aid of the respondents for seeking a discharge. Learned S.P.P. for the revision petitioner relied on the recent judgment of the Apex Court reported in A.I.R. 2005 SCC 369 ( State of Orissa v. Debendra Singh). Therefore, the order of discharge passed by the trial Court is liable to be set aside as incorrect.
4. On the other hand, learned senior Counsel Sri H.T. Nanaiah for the respondent-accused submitted that since there is no material to frame the charge, the trial Court has rightly invoked the provisions of Section 227 Cr.P.C. in discharging the respondents and the case registered at the instance of some vice President. Mr. Mohan who has received credible information, not lodged the complaint but only conducted the raid. There is a clear violation of Section 42(1) of NDPS Act- power to enter and search without taking any search warrant from the competent jurisdictional Magistrate. There is no special orders obtained from the State Government as such to conduct the raid and complainant had no jurisdiction to conduct raid. Panch witnesses are outsiders. Therefore, the previsions of Section 100 Cr.P.C. has not been strictly complied with. In the remand application it is mentioned that accused No. 2 vas present when the raid was conducted. If so, why the raiding party/ authority has not taken the signature on the alleged seizure mahazar is not known. It is submitted that the wife of respondent No. 1 has lodged the complaint before the Police Commissioner and NCB against CW.1- ACP Mr. Mohan. It is submitted that the alleged properties were said to have been seized from the office (hotel). Why the complainant has not recorded the voluntary statement of accused No. 2 is not known. There is a delay of 15 days. Therefore, the trial court has rightly accepted the report submitted toy the NCB and the report by the other police officers in discharging the respondents. Further, he has argued that in order to frame the charge, whether, the revision petitioner-prosecution has placed prima facie materials to frame the charge i.e. whether they were in possession or knowledge of the contraband articles alleged to have been seized is to be determined by the court-below. Therefore the trial Court has rightly considered all the materials in discharging respondent Nos. 1 and 2.
5. In support of the aforesaid contentions, learned Sr. Counsel for the respondents relied on the following decisions:
(a) (Union or India v. Prafulla Akumar Samal and Anr. ) wherein the Apex court held that:
In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total affect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted 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.
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.
(b) The decision rendered by Rajasthan High Court in V-1995(2) CRIMES, PAGE 338 (Smt. Yashoda Bai v. State of Rajasthan) wherein it has been held as follows:
Order framing charge against petitioner for offences under -Revision against - Considerations for court at stage of framing of charge - Test to frame a prima facie case depends on facts of each case.
(c) The decision rendered by the Apex Court in (2004) 10 SUPREME COURT CASES, 557 (State of Orissa v. A. Rajeswar Patha) wherein it has been held as follows:
Composite building, not a public building -Failure of 10 to reduce information received to writing, fatal-Acquittal upheld.
Section 42 comes to play and the mandatory requirement of reducing into writing is necessary. In the absence of such recording of the information by the investigating officer, it is concluded that there has been a violation of Section 42.
6. In the aforesaid case, an appeal has been preferred by the State of Orissa, in Criminal Appeal No. 554/1997, decided on 17th December 2003.
7. Since the impugned order under challenge is by the State regarding discharge of the accused persons for non-compliance of the NDPs. Act, learned Counsel for the respondents has relied on the following decisions:
(a) 2004(6) S.C., page 460 [The State of West Bengal and Ors. v. Babu Chakraborty) wherein it has been held as follows:
"Failure to comply with Section 42 would render entire prosecution case suspect and cause prejudice to accused-Acquittal could not be interfered with."
Trial vitistes, if there is non-compliance of mandatory provision.
(b) (State, Through Narcotics Control Bureau v. Kulwant Singh) regarding power of the NCB to investigate the case is concerned.
(c) (Union of India and Ors. v. L.D. Balam Singh) wherein it has been held that:
Non-compliance with the requirements of Sections 41 and 42 of NDPS Act would vitiate the entire trial.
(d) 2001-AIR (SC)-0-137 (Roy V.D. v. State of Kerala)
(e) 2000 CRL.L.J. 1384 (Abdul Rashid Ibrahim Mansuri v. State of Gujarat)
(f) (Ahmed v. State of Gujarat)
(g) 1999 CRL.L.J. 2465 (Varadapureddi Simmanna v. State of Andhra Pradesh)
(h) 1998 CRL.L.J. 1749 (Bhooma Ram v. Union of India)
(i) (Mohinder Kumar v. State, Panaji, Goa)
(j) 1996 CRL.L.J. 4221 (Ganapat Ram v. State of Rajasthan) but the aforesaid decisions have been produced by the learned Counsel for the respondents subsequently even though they were not referred to while arguing the case.
Therefore, learned Counsel for the respondents submits that the trial court was right in discharging the respondents as there is no prima facie material to proceed against the respondents with the trial by framing charge. Therefore, he prays for dismissal of the revision petition.
8. Having heard the arguments of the learned S.P.P. for the revision petitioner and learned Senior Counsel for respondents 1 and 2, now the point that arises for consideration is, can the trial court at the time of framing the charge consider the material filed by the respondents-accused to discharge them?
9. The case of the revision petitioner-State is that on 14.9.2001 at about 6.45 P.M. on the prior information received by CW.1- Mr. C. Mohan, Ace, Ulsoor Gate sub-division, Bangalore, visited the Chachi Hotel Limited situated at the Residency Road within the limits of Ashoknagar Police Station along with the staff and panchas and raided the office of the said hotel building bearing No. 20/50 in the presence of respondent No. 2, panchas and found contraband charas weighing about 267.5 grams and 222 counterfeit currency notes of Rs. 100/- denominations which were concealed beneath the office table kept inside the chambers of respondent Nos. 1 and 2 with the common intention of selling the charas i.e. narcotic drugs and to circulate the counterfeit currency notes. Therefore, CW.1 Mr. Mohan, ACP, Ulsoor Gate Police Station seized them under a mahazar in the presence of panch witnesses. Then he lodged the complaint with the Station House officer of Ashoknagar Police Station, arrested respondent No. 2 who was very much present at the time of raid and seizure and also produced the seized articles before the S.H.O. Law was set in motion on the basis of the complaint of CW.1 and the case for the offences under Sections 20 and 25 of the NDPS Act and under Section 489(C) read with Section 34 IPC came to be registered. It is also an undisputed fact that respondent No. 2 was arrested toy CW.1 and he was produced along with seized property, and a complaint was lodged before the S.H.O. of Ashoknagar Police Station and produced before the Court seeking judicial custody. It is also the specific case of the revision petitioner-prosecution that accused No. 1 was not present to arrest him immediately and in the meanwhile, that the wife of respondent No. 1 is said to have wade a complaint before the higher officer of the police department and complained to the NCB. After investigation, charge sheet came to be filed against respondents 1 and 2 for the aforesaid offences and when the matter was pending before the special Judge, City Civil Court, respondent No. 1 had filed an anticipatory bail application under Section 438 Cr.P.C. Of course, Special Judge (NDPS) granted anticipatory bail to the respondent No. 1 but not by relying on the decision of the Andhra Pradesh High court. Since investigation has bean completed and charge sheet came to be filed. Anticipatory bail was granted without expressing opinion on the merits of the case which is not a hindrance to hear and dispose of this case by this Court. Any civil litigation pending between respondent Nos. 1 and 2 and one Mr. Mohammed Nissar is not the subject-matter of this case and it is a matter for determination, by the Civil Court and it would not be in any way assist to find out whether, a false case has been registered or foisted against respondent Nos. 1 and 2 at the instance of their enemies. When the case was pending before the Special Judge, Bangalore City before framing charge, an application was filed by respondent Nos. 1 and 2 under Section 91 Cr.P.C. to receive the documents i.e. the reports submitted by the NCB and the Assistant Commissioner of Police (Traffic), Deputy Commissioner of Police (Crimes), Bangalore City for deriliction of duty by the then Police Inspector of Ashoknagar Police Station. Therefore, the report submitted by the Deputy Commissioner of Police and the Asst. Commissioner of Police (Traffic) has no bearing on this case. Therefore, the contention of the learned Senior Counsel for the respondents that the than Police Inspector of Ashoknagar Police Station has not registered the case or delayed in registering the case on the basis of the complaint lodged by the wife of respondent No. 1 has no bearing. It is a separate issue.
10. While framing charge for the offences punishable under Sections 20 and 25 of the NDPS Act and under Section 489(C) read with Section 34 IPC., the Court is required to see whether there is any prima facie material either to take cognizance or to frame the charge against the accused persons. At that stage any documents produced by the accused persons either before taking cognizance or while framing charge should not be looked into and considered. Taking into consideration the materials placed by the prosecution collected during course of investigation the Courts are expected to see only the prima facie materials. Violation of any the mandatory provisions of the NDPS Act by the investigation agency need not be considered as held by the Apex Court in the case of State of Orissa v. Devendranath and there is no specific provision in the Cr.P.C. to permit the accused persons either to summon the records and documents under Section 91 of the Cr.P.C. Of course, the materials placed on record show that at the instance of respondents No. 1 and 2, reports were secured subsequently by Public Prosecutor. Original records from the NCB and the reports submitted by the Deputy Commissioner of Police were also secured. In order to frame a charge, criminal courts need not take into account elaborate discussion or detailed documentation. Detailed documentation need not be made to find out a prima facie case to frame the charges.
11. In the instant case, the trial Court while passing the impugned order under challenge has come to a conclusion about the alleged noncompliance of the mandatory provisions of NDPS Act, if any, which is uncalled for. But the trial Court had erroneously come to the conclusion that the I.O. has not complied with the provisions of Section 100 of Cr.P.C. before malting search, and seizure. Merely because the signature of respondent No. 2 is not taken on the panchanama, that itself is not a ground to discharge the respondents at the threshold. It is for the prosecution to prove the charges levelled against the respondents-accused persons. It is not the case of the respondents that the State of Karnataka itself moved the NCB to investigate the case. There cannot be two parallel investigations in respect of the offences alleged. In the instant case, when the complaint has been filed against respondents 1 and 2 after seizure of contraband articles and the case has been registered and the respondent accused No. 2 was arrested and investigation has been completed. Under the NDPS Act, even if there was any violation of the mandatory provisions of NDPS Act, Courts need not take it into consideration such violation to discharge the accused persons. In the instant case, learned Special Judge toy relying on the decision of the Division Bench of the Apex Court reported in 1996 Supreme Court Cases (Cri) 1104 (Satish Mehra v. Delhi Administration and Anr.) while discharging the accused. Subsequently the Apex Court in State of Orissa v. Devendranath Case held that the decision, rendered by the Apex Court in the case reported in 1996 Supreme Court Cases (Cri) 1104 ( Satish Mehra v. Delhi Administration and Anr. ) is not a good law.
The Apex Court in the case of State of Punjab v. Jasbirsingh and Ors. held as follows:
Evidence collected during investigation in violation of statutory provision does not become inadmissible and the trial on the basis thereof does not get vitiated - Each case must be considered on its own backdrop.
12. In the instant case, whether the prosecution has collected sufficient materials to show prima facie that the respondents No. 1 and 2-accused were found in possession of 267.5 grams of charas and thereby committed an offence under the provisions of NDPS Act is to be seen at the time of framing charge. That question has to be seen at the time of trial. In the case of Union of India v. Prafulla Kumar Samal and Anr. , the Apex Court held that:
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.
Wherein Full Bench of the Apex court held that at the time of framing charge or taking cognizance, accused has no right to prejudice any material. Therefore, Hon'ble Supreme Court held that the law laid down in the case of Satish Mehra v. Delhi Administration and Anr. reported in 1996 Supreme Court Cases (Cri) 1104 is not applicable.
13. It is a well settled law that the provisions of the Criminal Procedure Code ('the code' for short) permit the accused the right to file any documents at the time of framing charge. That such right is to be granted only for production of documents. The Courts need, not look into such documents produced by the accused persons before framing charge or at the time of framing charge. Those documents produced should be looked into during trial. Section 227 of Cr.P.C. reads as follows:
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.
Documents submitted therewith does not mean that the documents produced by the accused. Only the materials collected by the investigating officer during the course of investigation should be looked into as held by the Hon'ble Apex Court in a recent decision referred to above.
14. Therefore, the trial Court has committed serious error in coming to the conclusion that the investigating officer has not complied with the mandatory provisions of NDPS Act or not sending the information to the official superior and in not recording of the reasons to conduct the raid, search and seizure need not be looked into at the stage of framing charge. So also, any documents or materials or reports called for by the trial court at the instance of the accused or the prosecution need not be looked into whereas in the instance case the trial Court has made a detailed documentation of the materials placed on record placed by the investigating agency and the documents secured by the respondents 1 and 2 and came to a wrong conclusion in discharging respondents 1 and 2. Therefore, the order under challenge passed by the Sessions Judge & Spl. Judge (NDPS), Bangalore in discharging the respondents 1 and 2 is liable to be set aside as incorrect and illegal.
15. Accordingly, the revision petition is alloyed and the impugned order under challenge is hereby set aside. Matter is remitted back to the trial Court to frame the charge on the basis of the available materials and dispose of the case in accordance with law.
16. The findings recorded by this Court should not affect the rights of the parties in one way or the other.