Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K Through Sho P/S ... vs Mohammad Fayaz Khanday And Another on 30 April, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
Crl R no.25/2024
Reserved on: 27.02.2025
Pronounced on: 30.04.2025
Union Territory of J&K through SHO P/S Uri Baramulla
.......Petitioner(s)
Through: Mr Jahingeer Ahmad Dar, GA
Versus
Mohammad Fayaz Khanday and another
......Respondent(s)
Through: Ms Sabeena Naveed, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Impugned in this petition is order/judgement dated 16 th May 2024, passed by court of 1st Additional Sessions Judge, Baramulla (for short "Trial Court") in a case titled as State of J&K v. Mohammad Naseer Batti and others, discharging accused/respondents of FIR no.12/2023 police station Achabal from the offences punishable under Section 9/21, 27-A, 29 NDPS Act, on the following grounds: -
i) Trial Court has overlooked position of law as laid down by Apex Court at the stage of framing of charge;
ii) Trial Court has made an error in appreciating facts of case in right perspective. In this case recovery was effected by police concerned from vehicle when all four accused were travelling in it. When this vehicle was stopped at Naka laid down by police, driver of vehicle/accused no.1 tried to run away from naka, Page 1 Crl R no.25/2024 however, police concerned stopped vehicle tactfully and searched vehicle. During search of vehicle, a bag was found below driver's seat in which Rs.8,39,000/- and one packet of brown sugar weighing 650 grams were recovered, another bag was found below front seat in which Rs.10.00 Lacs and one packet of brown sugar weighing 520 grams was recovered, and below middle seat of vehicle on right side Rs.4.00 Lacs recovered and on left side below the seat Rs.3.00 Lacs was also recovered. Upon questioning about recovered contraband and currency accused could furnish not furnish any plausible reply;
iii) The Trial Court passed the order whereby charges were directed to be framed on next date of hearing against accused 1&2 only for commission of offences punishable under Section 8/21, 27-
A, 29 NDPS Act, when all four accused were travelling in the same vehicle and from beneath the seat of every accused bag containing either cash and contraband or cash was recovered. As such, all four accused are liable for commission of offence under Section 8/21, 27-A, 29 NDPS Act. The Trial Court has not appreciated these facts properly and has made an error while discharging accused 3&4;
iv) The Trial Court has erred in not appreciating the fact that accused 2,3&4 were relatives and were travelling in the vehicle from which contraband and huge cash was recovered. The order impugned prima facie appears erroneous as two accused were charged in the case for commission of offences whereas other two accused were discharged when allegation against each of them are same, i.e., bags were found below their seats on which they were sitting and, in the bags, either contraband and cash or cash were recovered from the bags as such all of them are prima facie involved in the case;
v) The accused as per the charge sheet tried to flee from Naka when they were signaled to stop by Naka party, which prima facie establishes prosecution case from the conduct of accused. Moreover, in this case, contraband and huge cash were recovered Page 2 Crl R no.25/2024 from vehicle in which accused were on board as such burden of proof is on them during trial to prove that they were not knowing that contraband was in vehicle, as such, offences under Section 8/21-29, 27-A NDPS are prima facie made out against accused. Prosecution has submitted case law titled Mir Nagvi Askari v. Central Bureau of Investigation (2009) 15 SCC 643 , wherein it was held by the Supreme Court that it must always be kept in mind that a conspiracy is always hatched in secrecy and it is difficult to obtain direct evidence to establish the same. The Trial court has not appreciated the law laid down under Section 35 and 54 of NDPS Act and judicial pronouncements in this regard and has discharged accused 3&4 on erroneous appreciation of facts and law;
vi) The facts which are established from evidence on record is that all accused were travelling ins same vehicle and they were known to each other, the huge quantity of brown sugar (commercial quantity) and cash has been recovered from possession of accused and it has been established that accused were travelling in a vehicle which they tried to run/take away from Naka which creates reasonable suspicion on them. Trial Court has fallen in error while passing order impugned discharging accused 3&4 and has acted in sketchy and perfunctory manner;
vii) Trial Court has returned finding and appreciated evidence in the same manner as is required after conclusion of trial;
viii) The position of law laid down by the Apex Court at the stage of charge is that evidenced and material on file is not to be meticulously evaluated on the same yardstick which is to be appreciated after conclusion of trial;
ix) The order impugned is not based on facts and is against law and material in the shape of charge sheet and other allied documents relied upon by prosecution. Trial Court has sifted evidence at the stage of charge which is against law and dictum of the Apex Court;
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x) Order impugned is not legally sustainable being improper and against basic provisions of law governing charge-stage of the case in general and judgements passed by the Apex Court in particular. Impugned order is totally against dictum/guidelines of Apex Court as laid down in basic judgment titled State of Orissa v. Debendra Nath Padhi, 2005(1) SCC 568, in which it has been held that law does not permit a roving inquiry at the stage of charge and court below has to consider material produced by prosecution in the shape of charge-sheet and relied upon documents. However, on the other hand, Trial Court has contrary to provisions of law and law laid down by the Apex Court conducted a roving inquiry by sifting evidence at the charge- stage in respect of accused;
xi) Trial Court has exceeded its jurisdiction while discharging accused at the beginning and very threshold as Trial Court while proceeding ahead has to follow procedure prescribed and laid down by Apex Court. Trial Court has to draw a satisfaction less than satisfaction about existence of fool proof case. Trial Court is only required to evaluate whether there is a ground for presuming that accused has committed an offence triable under relevant section of law. Trial Court, as such, is not required to venture into minute details and technicalities of case. Trial Court has neither rightly appreciated provisions of law nor applied correctly to the facts and circumstances of the case;
xii) Trial Court has not properly scanned the record while discharging accused persons when cogent, clinching, incriminating evidence, oral/documentary collected during course of investigation has been placed on record of the case sufficient in ordinary course to hold accused guilty of offence of grave nature. Trial Court has taken contrary view by misappreciating facts/circumstances of the case and the tests to be followed at charge-stage.
2. Heard and considered.
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3. When facts are looked into, there is no denial to the fact that cash and contraband has been recovered from the vehicle in question. What was required to be looked into by Trial Court was within the four corners of provisions of law, that is, provisions of Section 227 and 228 of the Code of Criminal Procedure read with Section 9/21, 27-A, 29 NDPS Act.
4. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 Cr.P.C., unless accused is discharged under Section 227 Cr.P.C.. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion, there is ground for presuming that accused has committed an offence, it shall frame the charge. Once facts and ingredients of Section 228 Cr.P.C. exist, then the court would be right in presuming that there is ground to proceed against accused and frame charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Section 227 and 228 Cr.P.C. Section 227 Cr.P.C. is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 Cr.P.C.
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5. If, conversely, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which "is exclusively triable by the court, he shall frame in writing a charge against the accused", as provided in Section 228 Cr.P.C. Reading two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of trial, the truth, veracity and effect of evidence which prosecution proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 Cr.P.C. At that stage, the court is not to see whether there is sufficient ground for conviction of accused or whether trial is sure to end in his conviction.
6. Strong suspicion against accused, if matter remains in the region of suspicion, cannot take place of proof of his guilt at the conclusion of trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against accused. However, if evidence which prosecution proposes to adduce to prove guilt of accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show Page 6 Crl R no.25/2024 that accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
7. Exercise of power under Section 227 Cr.P.C. is legally permissible only by considering 'the record of the case and the documents submitted therewith'. Thus, necessarily, the question is what is the meaning of expression 'the record of the case and documents submitted therewith'? It refers only to the materials produced by prosecution and not by accused. A Three-Judge Bench of the Supreme Court considered this question in State of Orissa v. Debendra Nath Padhi (supra), in which it was held that the said expression as postulated in Section 227 relate to the case and the documents referred to under Section 209 Cr.P.C., which provides commitment of case to court of Session when offence is triable exclusively by it. By elaboration, the Supreme Court said that though the word 'case' is not defined in the Code but Section 209 Cr.P.C. throws light on the interpretation to be placed on the said word, which, inter alia, provides that when it appears to the magistrate that offence is triable exclusively by Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify public prosecutor of commitment of the case to the Court of Session. The record of case and documents submitted therewith as provided under Section 227 relate to the case and documents referred to in Section 209 Cr.P.C., which is the plain meaning of Section 227 read with Section 209 Cr.P.C. and that no provision in the Code of Criminal Procedure gives accused any right to file any material or document at the stage of framing of charge. The Page 7 Crl R no.25/2024 said right to accused is given only at the stage of trial. Purpose of incorporation of Section 227 in the Code was aiming at saving accused from prolonged harassment which is a necessary concomitant of protracted criminal trial. It is intended to eliminate harassment to accused persons when evidential materials gathered after investigation fall short of minimum legal requirements. In the event, the evidence even if fully accepted cannot show that accused committed offence, accused deserves to be discharged.
8. Having a glance of the aforesaid provisions, it is crystal clear that while passing an order in abovesaid provisions, the trial court shall consider:
the record of the case and documents submitted therewith; submissions of the accused; and thirdly the submissions of the prosecution. It is settled law that even after such considerations, two views are possible and if one of them gives rise to the suspicion, which is distinguished from grave suspicion, the trial Judge is empowered to discharge the accused without going into the question as to whether a case for trial has been made out by the prosecution or not. After application of judicial mind on discharge, the trial court is to enter into next proceeding i.e. framing of Charge. It is prima-facie overt from the wordings of Section 228 Cr.P.C., i.e., "framing of charge" and "if, after such consideration and hearing, as aforesaid", the procedure of Section 227 Cr.P.C. is of much importance and that cannot be skipped by the trial court. The intent of the legislature is very clear that the procedure prescribed in Section 227 Cr.P.C. for discharge of accused is in fact safeguard and rider so that a person who has been alleged to commit an offence, may not be harassed for facing trial proceedings. Therefore, Page 8 Crl R no.25/2024 application of mind as well as assigning reasons for passing order under Section 227 Cr.P.C. is of much importance, which is to be taken care of by the trial court.
9. Now let me advert to the instant case. The prosecution story before the Trial Court is that on 12th February 2023, a special naka was laid by Kamlkot police at sultan Daki Kalli MItti and during naka checking a Tata Sumo vehicle bearing Registration no.JK05D-3680 was signaled to stop, but vehicle did not stop and tried to flee. However, vehicle was chased and stopped. On checking four persons including driver, Mohammad Naseer Batti, Mohammad Riyaz Khanday, Mohammad Fayaz Khanday and Mohammad Pazeer Khanday were found sitting in vehicle. Search of vehicle was carried. A cloth bag was found below seat of driver in which on further checking Rs.8,39,000/- in cash and one packet of brown sugar weighing 650 grams were recovered. Another packet was found below front seat of vehicle and upon its search Rs.10.00 Lacs in cash and one packet of brown sugar weighing 520 grams were found. On further search of vehicle, below the middle seat on right side Rs.4.00 Lacs were recovered and on left side below seat Rs.3.00 Lacs were recovered. All accused were questioned regarding recovery of contraband and huge cash, but they could not give any reply. Accordingly, FIR no.12/2023 under Section 8/21, 29 NDPS Act was registered. Investigation was conducted. Seizure memo of cash and contraband recovered was prepared. Accused were arrested. Statements of witnesses were recorded. During personal search of accused, namely, Mohammad Naseer Batti, one mobile phone and cash of Rs.600/- were recovered. From accused, Mohammad Riyaz Khan Page 9 Crl R no.25/2024 one mobile phone and Rs.200/- were recovered. Rs.150/- and from accused, Fayaz Ahmad Khanday, one mobile and Rs.150/- were recovered. One mobile phone and Rs.100/- were recovered from accused, Mohammad Pazeer Khanday. Narcotic recovered was produced before Executive Magistrate. Samples were taken and sealing/ resealing was done in his presence. Samples were sent to FSL for examination and analysis. Report was obtained from FSL. Accused were taken on remand from time to time. After completion of investigation, charge-sheet was produced against all accused persons under Section 8/21, 27-A, 29 NDPS Act.
10.Impugned order reveals that Trial Court after discussing prosecution story and arguments advanced by learned counsel for parties, made mention of provisions of Section 227 and 228 Cr.P.C. Thereafter, Trial Court made reference to certain judgements on the subject.
11.It has been the case of prosecution before the Trial court that accused under a conspiracy were involved in illicit financing of narcotics as they were having possession of more than one kilogram of brown sugar as well as cash amounting to Rs.20.00 Lacs and all the accused were travelling in same vehicle. Recovery was made from vehicle at four difference places and four different parts.
12.It had been submission of counsel for accused before the Trial Court that except driver all accused were to be discharge because vehicle was not a private but a public commercial vehicle inasmuch as driver was having control over the vehicle, thus, only person liable to be charged. In view of this submission, the Trial Court rightly referred to 'conscious possession' and in this regard made reference to judgements and law Page 10 Crl R no.25/2024 laid down therein. The Supreme Court in Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, has said that the term 'possession' for purpose of Section 18 NDPS Act could mean physical possession with animus, custody or dominion over prohibited substance with animus or even exercise of dominion and control as a result of concealment. Animus and mental intent are primary and significant element to show and establish possession. Personal knowledge as to existence of illegal substance at a particular location or site, at a relevant time, and intention based upon knowledge, would constitute unique relationship and manifest possession and in such circumstances, presence and existence of possession could be justified, for the intention is to exercise right over substance or chattel and to act as owner to the exclusion of others.
13.The Trial Court has made reference to Ram Singh v. Central Bureau of Narcotics (2011) 11 SCC 347, in which it has been held that to hold a person guilty, possession has to be conscious. Control over goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term carrying different meaning in different context and circumstances; thus, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situation with reference to all statutes. The Supreme Court said that a servant of a hotel could not be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control.
14. It has been case/story of prosecution that narcotics and some cash were recovered from below the seat of accused no.2, but from below the seat Page 11 Crl R no.25/2024 of accused nos.3&4 only cash was recovered. Reference to a judgement dated 30th November 2022 in Pooja Rani @ Pooja Rani v. State of Punjab, was made by the Trial court. In that case it was held that mere recovery of cash from a person would not lead to an inference that such a person was involved in financing of illicit trafficking of drugs and that solitary transaction concerning contraband items will not amount to financing illicit traffic in narcotics inasmuch as the word 'trafficking' means continuous flow. There has to be some degree of continuity and regularity in drug dealing before a person can be said to be trafficking in drugs.
15.The Trial Court has found from the record brought before it that accused sitting on middle of the vehicle had not been found to have any contact with two other accused inasmuch as investigating agency has not brought on record any banking or other monetary transaction between accused.
16.The Trial Court has also looked into the important aspect of the matter that mobile phones of two accused persons, Mohammad Naseer Batti and Mohammad Riyaz Khanday, had been got examined by Electronic Surveillance Unit and report in this regard has been placed on charge sheet. The report reveals activity of accused on WhatsApp normal and that they were not registered on Telegram and that even activity on Instagram Social App was found normal; even text messages of two accused were found normal and final report was that they did not find any foreign contacts or any virtual number. Thus, analyzation of mobile phones that investigating agency has failed to establish that accused Page 12 Crl R no.25/2024 3&4 were any way involved in financing of illicit trafficking or harbouring offenders.
17.The Trial Court has also made reference to Section 29 NDPS Act, which relates to abetment and criminal conspiracy. The charge sheet, record and material placed on record by prosecution did not find out any evidence against accused 3&4. As a result of which, Trial court has found and so opined that in absence of any material on record with respect to accused 3&4 connecting with accused 1&2, accused 3&4 are discharged from FIR and are set free whereas sufficient material exists against accused 1&2, against whom charges would be framed separately on next date of hearing.
18.As already pointed out that in the event the evidence that prosecution proposes to adduce to prove guilt of accused even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the offence, then there will be no sufficient ground for proceeding with the trial. The Trial Court has rightly said that there is no sufficient ground for proceeding against accused as no prima facie case is made out against accused.
19.In view of above, impugned order/judgement does not call for any interference and as a consequence of which, instant criminal revision is dismissed.
(Vinod Chatterji Koul) Judge Srinagar 30.04.2025 Ajaz Ahmad, Secy.
Whether approved for reporting? Yes/No Page 13 Crl R no.25/2024