Punjab-Haryana High Court
Parmanand And Others vs State Of Haryana on 9 December, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.M-41661 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-41661 of 2013(O&M)
Date of Decision:09.12.2013
Parmanand and others .....Petitioners
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Tejinder Pal Singh, Advocate,
for the petitioners.
****
MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts & material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record is that, on 11.07.2012 in pursuance of secret information of grave legal violations, complainant Vijay Rani, Drug Control Officer(for brevity "the complainant") and Mr.M.K.Bhadu, SMO, have constituted a raiding- party and inspected the premises of Sharma Medical Agency, Dabwali. In the wake of search, 15000 Microlet tablets, 20000 Lomotil tablets, 480 bottles of Rexcof syrup, 400 Lupigesic injections, 550 Unizocine injections, 900 Zocin injections, 1200 Spasmocip capsules, 1000 ZZZ tablets, 5000 tablets of Zepose 10 Mg, 5000 tablets of Zepose 5 Mg., 3150 tablets of Decalm 10 Mg., 700 tablets of Decalm 5 Mg., 3300 capsules of Spasmocip Plus, 19200 tablets of Rest 0.5, 6800 capsules of Parvon Spas, 1100 tablets of Anxipam, 390 capsules of Dexovon, 94000 Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 2 tablets of Antipam 2 Mg., 6000 tablets of Spasmo Plus, 1000 Unizocine Injections (1 ml), 6912 capsules of Spasmo Proxyon, 720 capsules of Spasmo, 2700 capsules of Spasmo Cip Plus, 200 Unizocine injections, 100 capsules of Provon Fort, 96 Fortvin injections, 44000 Momolit tablets, 35400 Prozolam 0.5 Mg., 19800 Provon Spas capsules, 10000 Pheuolit tablets, 5600 Tranax, 8800 Alto 0.5 Mg. tablets, 7200 Spazpmoci Plus capsules, 2000 Parvodex capsules, 144000 Alto 0.5 Mg. tablets, 2160 Proxyvon capsules, 2304 Parvon capsules, 78000 Altipam 2 tablets, 14 bottles of Corex syrup, 25000 Fhenoltil tablets, 90400 Alto 0.5 tablets, 500 Luzapalm tablets, 2880 bottles of Rexcaf cough syrup(602 ml), 480 bottles of Rexcaf cough syrup (100 ml), 3840 bottles of Rexcaf cough syrup (100 ml), 330 bottles of Kilcaf (100 ml) and 5 bottles of Kilcaf (10 ml), were recovered from the possession of the petitioners, without any valid permit or licence under the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the NDPS Act) and the relevant Rules framed thereunder.
2. According to the complainant, she demanded, but the petitioners failed to submit, the valid permit or licence under the NDPS Act, relevant stock register and sale record etc. in this relevant connection. After completion of all the statutory/codal formalities, the samples and remaining drugs were sealed into separate sealed parcels and taken into possession by way of recovery memos in the presence of witnesses. The prosecution claimed that, huge commercial quantity of indicated Narcotic Drugs & Psychotropic Substances was recovered from the possession of the petitioners without any valid permit or licence and Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 3 relevant record. It was claimed that the composition of salts contained in the Narcotic Drugs & Psychotropic Substances recovered from the accused, fall within the domain of Tables/Schedules appended to the NDPS Act and the relevant Rules framed thereunder. In the background of these allegations and on the basis of pointed recovery of commercial quantity of narcotic drugs, the present criminal case was registered against the petitioners, vide FIR No.288 dated 11.7.2012(Annexure P-8), for the commission of offences punishable under Sections 21 and 22 of the NDPS Act(the offences punishable under Sections 420, 467, 468 and 120-B IPC were added later on), by the police of Police Station City Mandi Dabwali, District Sirsa.
3. Having completed all the investigations, the police submitted the final police report(challan). The Special Judge, taking into consideration the entire material on record, accordingly charge-sheeted the petitioners-accused, for the commission of indicated offences, by means of impugned order dated 05.06.2013(Annexure P-9). Thereafter, the case was slated for evidence of the prosecution.
4. Sequelly, instead of submitting to the jurisdiction of the trial Court, now the petitioners-accused have straightway jumped to prefer the instant petition, to quash the impugned FIR(Annexure P-8), order of framing of charges (Annexure P-9) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.P.C., leaving this Court in deep lurch to separate the grain from the bundles of chaff and to think twice, as to what extent, the findings on merits should be recorded with regard to the controversy raised in the present petition, as Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 4 the same would naturally have the direct bearing on the real issues between the parties, to be determined, during the course of trial by the trial Court. Be that as it may, but in the interest of justice, the principle of "safety saves" has to be and indeed would be kept in focus, while deciding this petition. That is how I am seized of the matter.
5. The case set-up by the petitioners, in brief, insofar as relevant is that Daya Nand son of Ram Dutt, brother of petitioner No.1, was a wholesale dealer of manufactured drugs and licences were issued by the Deputy State Drugs Controller-cum-Licensing Authority, which were subsequently renewed and extended till 12.02.2012, by virtue of licence/renewal certificate dated 07.04.2011 (Annexures P-1 & P-2), by way of an application for renewal (Annexure P-3), challan (Annexure P-
4) and copy of the letter dated 14.02.2012(Annexure P-5) under The Drugs & Cosmetics Act, 1940. It was alleged that petitioner No.1 was carrying his wholesale business of Allopathic medicines and drugs, as per the licenses granted by the competent authority. According to the petitioners that, earlier a complaint filed by the State against petitioner No.1 was dismissed and he was acquitted. The appeal filed by the State was dismissed as well, by means of judgment dated 17.08.2011(Annexure P-6) by the Appellate Court. He was also acquitted in another case registered against him, vide FIR No.319 dated 18.10.2007, on accusation of having committed the offences punishable under Sections 22 & 27 of the NDPS Act by the police of Police Station Dabwali. Petitioner No.1 was stated to have filed a suit for compensation & damages against the State Authorities in this respect.
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6. Leveling a variety of allegations and narrating the sequence of events, in detail, in all, the petitioners claimed that they were selling Allopathic & manufactured drugs and were in possession of the pointed recovered manufactured drugs under the licenses (Annexures P1 & P-2) issued by the competent authorities, no offences punishable under the NDPS Act & IPC are made out and since, they have been falsely implicated in this case by the complainant, in order to wreak vengeance, so, the impugned criminal prosecution is liable to be quashed. On the strength of aforesaid grounds, the petitioners-accused sought to quash the impugned FIR(Annexure P-8), order of framing of charges (Annexure P-9) and all other consequent proceedings arising therefrom, in the manner depicted here-in-above.
7. At the very outset, it is not a matter of dispute that the Hon'ble Supreme Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka, 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:-
(i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
(iii)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 6 Magistrate as contemplated under S.155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. Not only that, again the Hon'ble Apex Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R. (Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
9. After hearing the learned counsel for the petitioners at quite some length, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.
10. Ex facie, the arguments of the learned counsel that the petitioners were selling Allopathic and manufactured drugs and were in possession of the recovered manufactured drugs in question under the licenses (Annexures P1 & P-2) issued by the competent authorities, no offences punishable under the NDPS Act and IPC are made out and since, Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 7 they have been falsely implicated in this case by the complainant on account of previous enmity and in order to take revenge, so, the impugned criminal prosecution is liable to be quashed, are not only devoid of merit but misplaced as well.
11. Exhibiting the great concerns with regard to public health, Article 47 of the Constitution of India mandates and postulates that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injuries to health. This Court has also noticed the scenario of drug abuse in this part of the country in case Vinod Kumar Versus State of Punjab, 2013(1) RCR(Criminal) 428, as under:-
"Drugs of abuse scenario in the State of Punjab:
Disturbing scenario of drug abuse in the State of Punjab, is appearing in the various newspapers. "The Hindu" and the "Tehelka News Magazine" have reported such drug menace extensively. An extract from the "Tehelka News Magazine", Vol. 9, Issue 15, dated 14th April 2012, is as follows:-
"75% of the youth. Every third student. 65% of all families in Punjab are in the throes of a sweeping drug addiction. With little or no hope in sight."
"Angarh is just one symptom of a monstrous crises: a staggering 75 per cent of Punjab's youth is hooked to drug abuse, a figure the state government itself submitted to the Punjab and Haryana High Court in 2009. One out of every three college students in the state is on drugs. In Doaba, Majha and Malwa- regions particularly affected- almost every third family has at least one addict. Every kind of drug is readily available here. From smack, heroin and synthetic drugs to over-the- counter drugs like Buprenorphine, Parvon Spas, Codex Syrup and spurious Coaxil and Phenarimine injections. This is a state where 30 per cent of all jail inmates have been arrested under the Narcotic Drugs and Psychotropic Substances Act and the DGP has kicked up a political storm by saying it is impossible for him to control the flow of drugs into his prisons. But the sharp irony is, this matters little because, like Angarh, Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 8 scores of other towns and villages in Punjab are more notorious than any other prison cell."
12. At the same time, no one can lose sight of the fact that the tendency and frequency of selling such drugs for the purpose of intoxication by the Chemists without any valid licence/permit for illegal gain, ruining the health of the youths, have been tremendously increasing day-by-day in our society, which needs to be curbed with heavy hand. The NDPS Act was legislated to amend the existing laws relating to Narcotic Drugs & Psychotropic Substances and to control the menace of drug abuse, which is adversely affecting the social fabric of the society, containing specific provisions and special procedure. In order to carry out the purpose, aim and object of the NDPS Act, the Central Government has framed the Narcotic Drugs & Psychotropic Substances Act & Rules, 1985, Narcotic Drugs & Psychotropic Substances(Regulation of Controlled Substances) Order, 1993 and subsequent Relevant Rules and Orders framed thereunder through the medium of subsequent Notifications.
13. Sequelly, Chapter III of the NDPS Act deals with prohibition, control and regulation of narcotic drugs & psychotropic substance. Section 8 (c) posits that no person shall 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 Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 9 licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization.
14. Likewise, Sections 9 & 9-A empower the Central Government and Section 10 empowers the State Governments to permit, control and regulate the Narcotic Drugs & Psychotropic Substances. Sections 21 & 22 envisage that whoever in contravention of any provision of the NDPS Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug, shall be punished therein.
15. Similarly, the word "manufacture" has been defined in clause
(x) of Section 2, whereas according to clause (xi), the "manufactured drug" mean, all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate and any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any international Convention, by notification in the Official Gazette, declare to be a manufactured drug. Clause (xx) defines "preparation", in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances. According to clause (xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 10 psychotropic substances specified in the Schedule.
16. Besides it, Rule 64 of the relevant rules escalates that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule 1. Rule 66 envisages that no person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules. However, there is an exemption of possession with regard to the research, institution or a hospital or dispensary mentioned therein.
17. Sequelly, Order 3 of the NDPS (Regulation of Controlled Substances) Order, 1993 provides that every person, who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in Form 1 or Form 2, prescribed under the NDPS Act, which will be preserved for a period of two years from the date of last entry in the register and shall report to the Director General of Narcotics Control Bureau in this relevant connection. Section 80 of the NDPS Act provides that the provisions of this Act or the rules made thereunder shall be in addition to and not in derogation of, the Drugs & Cosmetics Act, 1940 or the rules made thereunder.
18. Indisputably, it is now well-settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 11 whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words, which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language, through which, it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise.
19. Such thus, being the legal position and material on record, now the core controversy, which engages an immediate attention of this Court and arises for determination in this petition is, is as to whether manufactured drugs recovered from the possession of the petitioners, would constitute the offences punishable under the NDPS Act or not?
20. Having regard to the contentions of the learned counsel for the petitioners, to me, the answer must obviously be in the affirmative in this context.
21. As is evident from the record that, huge commercial quantity of indicated Narcotic Drugs & Psychotropic Substances was recovered from the possession of the accused. The complainant claimed that the Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 12 salts contained in Narcotic Drugs & Psychotropic Substances recovered from the accused, squarely fall within the ambit of Tables/Schedules attached to the Notifications of 1985, 1993 and subsequent Notifications issued under the NDPS Act. Moreover, it remains an unfolded mystery as to why the petitioners are feeling shy and afraid of, to obtain the licence/permit under the NDPS Act to sell the manufactured drugs and to maintain the record in this respect.
22. A plain and meaningful reading of the indicated provisions of the NDPS Act and relevant Rules framed thereunder would reveal that whosoever shall manufacture, possess, sell or transport etc. any psychotropic substances without any permit, licence or authorization by the competent authority, would be liable to be prosecuted under this Act. Every person is required to comply with the provisions of the NDPS Act, pointed relevant Rules and subsequent Notifications. He has to comply with the terms & conditions provided under Order 3 of the NDPS Order, 1993. Admittedly, the violations of such mandatory provisions are not only patently illegal, but are punishable under Sections 8, 21 and 22 of the NDPS Act and relevant Rules as well.
23. At the same time, the mere fact that brother of petitioner No.1 was a licence holder under The Drugs & Cosmetics Act/Rules, and the manufactured drugs were recovered from the possession of the petitioners, ipso facto is not a ground, much less cogent, to exonerate them from such violations and will not operate as a bar to prosecute them in the present case, as contemplated under Section 80 of the NDPS Act. To my mind, in case, the contentions raised on behalf of the petitioners- Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 13 accused are accepted as such, then the very purpose, aim and object of the NDPS Act, would pale into insignificance and thereby inculcate & perpetuate injustice to the society at large. Thus, it would be seen, not only that, the petitioners have violated the mandatory provisions of the NDPS Act, but they have prepared and used the forged documents as genuine. Therefore, it cannot possibly be saith that no offences punishable under the NDPS Act and IPC are made out against them and they cannot escape their penal liability in this relevant context, as contrary urged on their behalf.
24. Thus, taking into consideration the recovery of heavy commercial quantity of the Narcotic Drugs & Psychotropic Substances from the possession of the petitioners-accused, to me, prima facie, the case for the commission of pointed offences under the NDPS Act and IPC is made out against them. Hence, the contrary submissions raised on their behalf "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
25. Not only that, in the wake of lengthy contentions of the learned counsel for the petitioners, the following two questions do arise for determination in the instant petition:-
(i) Whether exact quantity (total mass) of the contraband recovered from offenders or percentage of Narcotic drugs/ Psychotropic Substances seized is to be taken into consideration in relation to manufactured drugs and preparations? If so what is its effect.
(ii)Whether Manufacturers, Chemists, Wholesale license holders under the Drugs and Cosmetics Act, 1940 possessing controlled substances and manufactured drugs/ prescription drugs are also required to comply with the statutory provisions of the NDPS Act, Rules and Order 1993 for their possession? If so what is its effect.
26. What cannot possibly be disputed here is that, identical questions came to be decided by this Court in Vinod Kumar's case Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 14 (supra) and in case of petitioners titled as Parmanand Versus State of Haryana and others, 2013(1) RCR(Criminal) 375. Having considered the relevant provisions of the NDPS Act and relevant Rules framed thereunder, it was ruled as under:-
Re: Question No.(i)
i) As the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No.239 of the notification dated 19.10.2001 issued in S.O.No.1055(E) of the Central Government.
It is absolutely necessary to conduct Pure Content Test to ascertain the exact quantity of the Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Pure Content Test, the whole contraband seized shall not be considered as such. However, in all the cases registered on or after 17.11.2009, there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drugs, Psychotropic Substances and Manufactured Drugs. The whole contraband seized shall be considered as such even if it comes within the definition of Entry No. 239.
ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No.239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction and sentence will be imposed accordingly.
27. Insofar as question No.2 is concerned, it was held that the manufacturers of manufactured drugs or prescription drugs, chemists, wholesale license holders under the Drugs and Cosmetics Act are required to comply with the provisions of NDPS Act, Rules and Order, 1993 for the possession of narcotic drugs, psychotropic and controlled substances, failing which, they would be liable to be prosecuted under the NDPS Act. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
28. Even non-framing of rules under the NDPS Act by the State of Haryana would not come to the rescue and exonerate the petitioners- Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 15 accused. Till the State of Haryana frames the relevant rules under the NDPS Act, till then, the rules framed by the Central Government under the NDPS Act, would naturally be operative and automatically applicable in the instant case in this regard.
29. Faced with the grave situation, the next argument of the learned counsel that the impugned order of framing of charges/charge- sheet is non-speaking order and the result of non-application of mind, lacks merit as well. It is now well-settled legal proposition that, if the trial Court decides to frame the charges, there is no requirement that it should pass an order specifying the reasons as to why it had to do so. The framing of charges itself is a prima facie order, indicative of the fact that the trial Judge has formed the opinion upon considering the police report, other documents and after hearing both the parties that there is a ground for presuming that the accused have committed the offence, as envisaged under Sections 225 to 228 Cr.P.C. This matter is no more res integra and is now well-settled.
30. An identical question came to be decided by the Hon'ble Supreme Court in case U.P.Pollution Control Board Versus Mohan Meakins Limited and others, 2000(3) SCC 745, wherein it was ruled as under
(para 6):-
"6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah and another Versus State of West Bengal, 2000(1) RCR(Crl.) 407 : 2000(1) SCC 722. The following passage will be apposite in this context:
"If there is no legal requirement that the trial Court should write on order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 16 work? The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to overt all (sic) causing avoidable delays. If a Magistrate is to write detailed orders at different stages, the snail-paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages of the trial."
(Emphasis supplied)
31. Finding no alternative, the next cosmetic submission of the learned counsel that the petitioners have been falsely implicated by the complainant on account of previous litigation & enmity and there is no cogent evidence on record against them, sans merit as well. As indicated here-in-above, there are direct allegations that huge commercial quantity of drugs in question was recovered from their possession. Prima facie, there is sufficient evidence on record that the petitioners have violated the provisions of NDPS Act & relevant Rules and prepared false documents, in order to cheat the public at large. Moreover, what would be the effect of previous litigation and other submissions relatable to appreciation of evidence(now sought to be urged on their behalf), would be the moot points to be decided during the course of trial by the trial Court. In case, all such intricate questions, which require determination by the trial Court, after production of evidence by the parties, are to be decided by this Court, in the absence of any evidence in this respect, in the garb of petition under section 482 Cr.PC, then, to my mind, the sanctity of the trial would amount to nullify the statutory procedure of trial of criminal case as envisaged under the Code of Criminal Procedure, which is not legally permissible, particularly when the Special Judge has Arvind Kumar Sharma 2013.12.20 15:22 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-41661 of 2013 17 examined the material on record in the right perspective and framed the charges against the accused, by virtue of impugned order (Annexure P-9).
32. Above all, indeed it is now well-recognized principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Apex Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC 147.
33. Therefore, in case, the indicated factors are kept into focus and put together, then, to me, the conclusion is inescapable and irresistible that the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned FIR(Annexure P-8), order of framing of charges (Annexure P-9) and all other subsequent proceeding arising therefrom, are totally lacking in this case, at this initial stage.
34. Likewise, no motive could possibly be attributed to the complainant(Drug Control Officer) and SMO, as to why they would plant such a huge commercial quantity of the Narcotic Drugs & Psychotropic Substances and would falsely implicate the accused in the present case.
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35. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioners.
36. In the light of aforesaid reasons, taking into consideration the totality of the facts & material, oozing out from the record, as discussed here-in-above and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such in the obtaining circumstances of the case.
Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded only for a limited purpose of deciding the present petition under Section 482 Cr.P.C. and not otherwise.
Sd/-
December 09, 2013 (MEHINDER SINGH SULLAR)
seema/AS JUDGE
Whether to be referred to reporter? Yes/No
Arvind Kumar Sharma
2013.12.20 15:22
I attest to the accuracy and
integrity of this document
Chandigarh