Bombay High Court
Okoye Cyprain Chinnasa vs The State Of Maharashtra on 1 August, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
5-APPW-582-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 731 OF 2018
WITH
CRIMINAL APPLICATION NO. 582 OF 2018
WITH
INTERIM APPLICATION (ST.) NO. 2691 OF 2021
Okoye Cyprain Chinnasa ...Applicant
Versus
The State Of Maharashtra ...Respondent
....
Mr. Tanveer Khan, Advocate for the Petitioner.
Adv. Shishir Hiray, Special Public Prosecutor, a/w Mr. Ankur Pahade
and Mr. Sanjay Kokane, Advocate for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 1st AUGUST, 2022.
PER COURT:
1. The petitioner had preferred application for discharge before
the Court of Additional Sessions Judge, Thane vide Exhibit-78 in
NDPS Case No.28 of 2016. The said application was rejected by
order dated 21st August, 2017. This order is challenged before this
Court. Letter dated 15th January, 2018 challenging the impugned
order was sent through jail, which was registered as Criminal Writ
Petition No.731of 2018. Criminal Application No. 582 of 2018 in
Criminal Writ Petition No.731 of 2018 was sent through jail, for
expediting hearing of said writ petition. Interim Application No.
2691 of 2021 is an application filed through Advocate appointed to
Sunny Thote 1 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
represent petitioner by providing requisite details about
prosecution case and seeking discharge in the said proceedings.
2. The First Information Report was registered on 12th April,
2016 for offences under Section 8(c), 9(A), 25(A), 29 of Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS
Act"). The Anti Narcotic Cell, Thane received confidential
information that two persons would be arriving by vehicles carrying
3 k.g. Narcotic Drug Ephedrine for sale in city of Thane. Trap was
arranged. At about 4:30 pm. two vehicles arrived at the spot. Two
persons alighted from the car with bags in their hand. They were
apprehended at spot. They gave their names as Sagar Powale and
Mayur Sukhdare. During the search 1 k.g. white coloured crystal
powder was found in possession of accused No.1 Sagar Powale.
Search of bag found in possession of Mayur Sukhdare resulted in 1
k.g. white coloured crystal power. Contraband was seized.
Interrogation of accused Nos.1 and 2 revealed that, Dhaneshwar
Swami, employee of Avon Life Science Pvt. Ltd., MIDC, Solapur,
supplied said contraband to accused Nos. 1 and 2. he was arrested
on 14th April, 2016. On his personal search 5.500 k.g. Ephedrine
was seized. Interrogation of Dhaneshwar Swami revealed the
source of seized drugs. He showed the place where unauthorized
stock of Ephedrine was kept. Search was carried out which
Sunny Thote 2 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
resulted in seizure of 9500 k.g. Ephedrine. The applicant is a
Nigerian national. He was arrested on 9 th February, 2017. About
15 persons were arrested. The petitioner was also involved in C.R.
No.11 of 2016 registered with Shil-Daighar police station under
Section 8(c) and 22 of NDPS Act on 10th April, 2016. The case of
prosecution in C.R. No.11 of 2016 is that the petitioner was found
in possession 500 gms. white coloured cream, MD (Mephedrone)
valued Rs.12,50,000/-. It is alleged that, the Methamphetamine
seized from petitioner was made from Ephedrine procured from
Avon Life Science Pvt. Ltd., Solapur. The Ephedrine was process by
petitioner for selling it in market. The Ephedrine was transported
from Avon Life Science Pvt. Ltd., Solapur by various persons. One
of the person involved in transporting namely Sushil Kumar is
accused in present case. It is alleged that Sushil Kumar procured
Ephedrine from Avon Life Science Pvt. Ltd., Solapur and sold it to
petitioner to prepare Methamphetamine from it. It is alleged that
car used by accused Sushil Kumar for taking out Ephedrine from
company premises was seized. The statement of Rakesh
Kanavadekar was recorded. He disclosed involvement of petitioner
in the alleged offence. The said witness and petitioner has been
knowing each other for long time. The said witnesses is accused in
three cases, registered with different police stations. Statements of
Sunny Thote 3 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
employees of company were recorded. According to prosecution,
the petitioner is involved in this case. He is engaged in business of
transporting Ephedrine, and supplied it to others for producing
Methamphetamine. Such storage, supply was illegal.
3. Learned Advocate for the applicant submitted that there is no
evidence against the petitioner. There is no recovery of contraband
from the applicant in the present case. The petitioner was arrested
in C.R. No.11 of 2016, (NDPS Spl. Case No.27 of 2017). Merely on
account of petitioners involvement in that case he has been falsely
implicated in this case. The prosecution is relying on statement of
co-accused. Petitioner was granted bail in C.R. No. 11 of 2016. this
court granted bail to co-accused Rajendra Dimpri and Babasaheb
Dhotre vide order dated 24th March, 2021. Learned Advocate
relied on observations made while granting bail to the said
accused. Even on the face of record and bare perusal of charge-
sheet. There is no prima facie case made out against petitioner. No
charge for any offence can be framed against the petitioner.
Learned Advocate relied upon the decision of Supreme Court in the
case of Union of India V/s Prafulla Kumar Samal 2015 ALL SCR
(O.C.C.) 119.
4. Learned Special P.P. for state submitted that there is sufficient
evidence to frame charge against the petitioner. Prima facie case is
Sunny Thote 4 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
made against him. He was involved in another case and found in
possession of contraband. The prosecution is relying upon several
circumstances which indicate the involvement of the petitioner. At
the stage of framing charge the Court is not required to hold roving
inquiry. Various statements recorded during the course of
investigation supports prosecution case. The offences is of serious
nature. The prosecution has filed affidavit in reply opposing the
relief. It is submitted that bail application preferred by the
petitioner was withdrawn since the Court or not inclined to grant
relief. He relied upon the decisions in the case of Sanghi Brothers
(Indore) Pvt. Ltd. V/s. Sanjay Choudhary and Others reported in
(2008) 10 SCC 681 & decision of Soma Chakravarty V/s. State
through CBI (2007) 5 SCC 403. Statement of Jay Mukhi (accused)
was recorded under Section 164 of Cr.P.C. in which he stated that
his associates sent Ephedrine to Ahmedabad from Avon Life
Sciences Pvt. Ltd. company to make it as white powder form and
packing, which was to be delivered to petitioner. After processing
Ephedrine was to be exported to wanted accused vicky Goswami.
The applicant processed Ephedrine for converting into
Methamphetamine. 15 persons were arrested. Five persons are
absconding. Petitioner is involved in C.R. No. 11 of 2016. Narcotic
Drug was seized from him. Ephedrine was procured from Avon Life
Sunny Thote 5 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
Science, Solapur. Accused Sushil Kumar arrested in present case
had procured Ephedrine from said company, and sold it to
petitioner. Statement of Rakesh Khanavadekar discloses
involvement of petitioner. Supplementary statement of Nagendra
Baliram Agwane shows the entry of Red coloured Renault Car
bearing registration No. MH-46-AP-172 with two persons. There is
sufficient evidence to proceed against petitioner.
5. The factual matrix of the present case would indicate that the
prosecution case that the accused is engaged in the business of
transporting the contraband known as Ephedrine and supplied the
same to the individuals and for producing the Narcotic Drugs and
Psychotropic Substances more particularly known as
Methamphetamine. Statements of various witnesses were
recorded. The applicant was initially arrested in another case and
while in custody in that case his involvement was revealed in the
present case. In this case during the course of investigation several
persons were arrested. Statement of various persons were recorded.
Perused the statements which are part of chargesheet and the
documents relied upon the prosecution, prima facie case is made
out against the petitioner. There is sufficient evidence to frame
charge against the petitioner. The material on record cannot be
discarded at this stage. Statement of Rakesh Khanavadekar and
Sunny Thote 6 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
other circumstances on record are sufficient to frame charge and
proceed against petitioner. This is not the stage to appreciate
evidence. In the case of Union of India V/s. Prafulla Kumar Samal
and Anr. (supra) it was observed that the Court, while framing
charge has undoubted power to sift and weigh evidence for limited
purpose of finding out whether or not a prima fiacie case against
the accused is made out. Where the material placed before the
Court disclose grave suspicion against the accused which has not
been properly explained the Courts will be fully justified in framing
a charge and proceeding with trial. The test to determine a prima
facie case would naturally depend upon facts of each case and it is
difficult to lay down a rule of universal application. If two views
are equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but not
grave suspicion against accused, he will be fully within his right to
discharge the accused. In exercising his jurisdiction under Section
227 of the Court cannot act merely as post office or mouthpiece of
prosecution. In the case of Sanghi brothers (Supra) it was held
that, the test to be applied at the stage of discharge is of prima
facie case. There is not necessity of formulating opinion about
prospect of conviction. In some Soma Chakravarty Vs. Central
Bureau of Investigation (Supra), it was observed that, Court can
Sunny Thote 7 of 8
::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::
5-APPW-582-2018.doc
frame charge if on the basis of material on record it can form on
opinion that commission of offence by accused was possible. There
is no debate about the parameters which have to be considered at
the stage of framing of chargesheet. Applying those principles, I
find at there is sufficient material to proceed against the petitioner.
No case is made out for discharge.
ORDER
Criminal Writ Petition No.731 of 2018 is rejected and disposed of.
(PRAKASH D. NAIK, J.) Sunny Thote 8 of 8 ::: Uploaded on - 12/09/2022 ::: Downloaded on - 06/01/2023 16:07:09 :::