Rajasthan High Court - Jodhpur
Smt.Yashoda Devi vs State on 19 January, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
1.
S.B. CRIMINAL MISC. PETITION NO. 2772/2011
(Smt. Yashoda Devi Vs. The State of Rajasthan)
DATE OF ORDER : 19.01.2012
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Vinay Jain, for the petitioner.
Mr. Anil Joshi, Public Prosecutor.
The present misc. petition has been filed by the petitioner for quashing of the proceedings initiated against her in pursuance to the charge-sheet No.264A/2006 filed subsequent to the FIR No.249/2006, registered at Police Station Nimbahera, Distt. Chittorgarh and also all the proceedings thereupon qua the petitioner.
Briefly stated facts necessary for the disposal of the misc. petition are that on 10.06.2006, a FIR was registered at the Police Station Nimbahera, Distt. Chittorgarh against Vikram Singh, Kalu @ Daya Ram and Joga Ram for the offences under Sections 8/15 & 8/25 of the NDPS Act with the allegation that they whilst driving the Indica Car bearing No.RJ-4 C-1805 were found to be plying illicit poppy straw. The police initially filed a charge-sheet against Vikram Singh, Kalu @ Daya Ram and Joga Ram for the aforesaid offence and during the course of investigation of the FIR, it came to light that the vehicle in question, in which, the illicit poppy straw was being transported was registered in the name of present petitioner. On further investigation being made, it was revealed and verified that the vehicle in question i.e. Indica Car had been sold by the petitioner to Vikram Singh, the person from whose possession the vehicle was recovered.
It further appears from the record that Vikram Singh moved an application before the learned trial court for treating him as a juvenile and based on the documents submitted by Vikram Singh, he was declared to be a juvenile. Resultantly, the police while conducting the investigation came to a conclusion that since Vikram Singh was a juvenile, any agreement entered into between 2. Vikram Singh and the present petitioner could not be said to be a valid agreement. Resultantly, the charge-sheet was filed against the present petitioner under Section 299 Cr.P.C. holding her to be responsible for the offence under Section 8/25 of the NDPS Act. Learned counsel for the petitioner relying on certain documents filed along with the charge-sheet particularly the report of the SHO, Nimbahera submitted to the learned Special Judge (NDPS Cases), Chittorgarh submitted on 4th November, 2011 submits that the Investigating Officer has himself found that on enquiry being made about the documents of the sale of the vehicle in question, the factum of the petitioner having sold the vehicle to Vikram Singh was verified but the Investigating Officer filed the charge-sheet against the petitioner only because the petitioner did not appear in the investigation and did not file the documents of sale before the Investigating Officer.
Learned counsel submits that the report itself has self contrdictory findings as the Investigating Officer in the very same report has stated that the agreement for sale of the Indica Car executed between the petitioner and Vikram Singh was verified but the original agreement was not made available by the petitioner. Thus, he submits that once the agreement was verified, then, there was no question of such a verification having been made without the existence of the agreement in investigation file. Learned counsel has also filed the driving license purported to be the driving license of Vikram Singh from whom the recovery was made and submits that as per the driving license, the date of birth of Vikram Singh is 15.11.1984 and that Vikram Singh while using forged documents has procured the finding from the court below that he was a juvenile. Learned counsel submits that the petitioner while selling the vehicle in question could not have been aware about the date of birth of aforesaid Vikram Singh and that she had bonafidely sold the vehicle to Vikram Singh and thereby the proceedings against her 3. for offence under Section 8/25 of the NDPS Act in this matter were absolutely unjustified. He further submits that the prosecution has not produced any evidence on the record to show that the petitioner was aware or was having knowledge about the transportation of the poppy straw in the vehicle. Thus, he submits that the charge-sheet filed against the petitioner in this case under Section 299 Cr.P.C. for the offence under Section 8/25 of the NDPS Act deserves to be quashed.
Per contra, learned Public Prosecutor has opposed the prayer made for quashing of the proceedings against the petitioner and submits that the petitioner never appeared before the Investigating Officer for verifying the factum of sale and thus the charge-sheet was rightly filed against the petitioner and there was no reason to interfere in the said charge-sheet by way of the instant misc. petition under Section 482 Cr.P.C.
I have heard learned counsel for the parties, given thoughtful consideration to the arguments advanced at bar and have perused the record available on the file.
Un-disputedly, in this case, the report of the Investigating Officer, which has been submitted before the court below shows that the agreement for sale of the vehicle in question was entered into between the petitioner and Vikram Singh on 19.05.2006. The recovery of poppy straw has been effected on 10.06.2006 i.e. to say that when the recovery was made the vehicle already stood transferred to the aforesaid Vikram Singh by virtue of the agreement. The Investigating Officer during the course of the investigation has verified and has found the agreement to have genuinely been entered into between the petitioner and Vikram Singh.
Learned Public Prosecutor has also admitted that apart from the fact of the registration of the vehicle in the name of the petitioner, there is no material on the record of the case, by which, it can be inferred tha the petitioner can be said to be responsible for the offence under Section 8/25 4. of the NDPS Act. In the opinion of this Court, for the purpose of prosecuting the present petitioner for the offence under Section 8/25 of the NDPS Act, the prosecution has to make an allegation substantiated by evidence to the effect that the transportation of the contraband was being done with the knowledge of the person being the owner, occupying or having control or use of the conveyance. The different words which have been used in the Section are clearly meant to convey the meaning that even if the person is not the owner of the room, space, place, animal or conveyance, then also, he can be held responsible for the offence of permitting such house, place or other things for being used for the purpose of commission of offence under the Act. Vice-versa, the person being the owner can be excluded from the mischief of this Section. But the essential requirement for the application of this provision is that the offence must be committed with the knowledge of such a person. Obviously, when the prosecution itself in the present case has verified the fact that the vehicle had been transferred by the petitioner to Vikram Singh, then, there was no question of the petitioner having any control or use over the conveyance i.e. the Indica Car in question. Thus, there is no question of her having any knowledge about the same being used for transportation of the narcotic drug i.e. poppy straw.
Resultantly, this Court feels that the proceedings of the case arising out of the FIR No.249/2006, registered at Police Station Nimbahera, Distt. Chittorgarh and the charge-sheet No.264A/2006 qua the petitioner so far at it relates to the offence under Section 8/25 of the NDPS Act cannot be permitted to be continued against the petitioner as the same amounts to abuse of the process of the Court.
Consequently, this misc. petition succeeds. It is directed that the proceedings qua the petitioner for the offence under Section 8/25 of the NDPS Act and under Section 299 Cr.P.C. in relation to the Charge-sheet 5. No.264A/2006 and in relation to the FIR No.249/2006, registered at Police Station Nimbahera, Distt. Chittorgarh are hereby quashed.
(SANDEEP MEHTA), J.
ms rathore