Hussain v. State
Legal Reasoning
crivn349.23-2- Osmanpura police station, Aurangabad on 17.8.2022.3.The applicant averred in his application Exh.87 that theapplicant is falsely implicated in the crime. Section 328 of the I.P.C. isnot applicable to the case of the applicant. Essential ingredients ofcharged sections are not prima facie established against theapplicant. No any purchaser is traced out. During investigation, theinvestigating officer has illegally invoked Section 328 of the I.P.C. Nosuch purchase of contraband is traced out to invoke Sections 18(a),18(c), 27(b) (ii) of the Drugs and Cosmetics Act. The learned Specialcourt did not consider all these aspects while framing of charge whenthere is prima facie, no material to proceed against the applicant.4.Learned advocate for the applicant submitted that theapplicant is falsely implicated in the crime. False report is registeredagainst him. Section 328 of the I.P.C. is wrongly invoked againsthim. He pointed out the report as well as the statements of thewitnesses. Learned advocate for the applicant is relying upon thefollowing authorities:-i)Mohd. Muslim @ Hussain vs. State (NCT ofDelhi), decided on 28.3.2023 by the Hon’ble SupremeCourt in Special Leave Petition (Cri.) No. 915 of 2023, inwhich in para 20 the Hon’ble Supreme court has observedas under:- crivn349.23-3- “20. The standard to be considered therefore, is one, where thecourt would look at the material in a broad manner, andreasonably see whether the accused’s guilt may be proved. Thejudgments of this court have, therefore, emphasized that thesatisfaction which courts are expected to record, i.e., that theaccused may not be guilty, is only prima facie, based on areasonable reading, which does not call for meticulousexamination of the materials collected during investigation (asheld in Union of India v. Rattan Malik19). Grant of bail onground of undue delay in trial, cannot be said to be fettered bySection 37 of the Act, given the imperative of Section 436Awhich is applicable to offences under the NDPS Act too (ref.Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624regard to these factors the court is of the opinion that in thefacts of this case, the appellant deserves to be enlarged onbail.” ii)Akash Satish Chandalia vs. the State ofMaharashtra, decided by this court on 03.10.2023 incriminal bail application No. 1779 of 2023, in which in para7 this Court has observed as under:-“7. The seriousness of an offence and it’s heinous naturemay be one aspect, which deserve a consideration whileexercising the discretion to release an accused on bail, but atthe same time, the factor of long incarceration of an accused asunder-trail prisoner also deserve its due weightage. Pendingthe trial, a person cannot be kept in custody for an indefiniteperiod of time and it clearly violate the fundamental rightenshrined in the Constitution and time and again, has beenconsidered to be a justifiable ground to exercise the discretionto release an accused. Various orders/judgments from the highest Court areplaced before me which have directed release of an accused on crivn349.23-4- the ground of long incarceration and the impossibility ofconclusion of trial in a time bound manner.”iii)Khushi Ram @ Happy vs. State of Punjab,decided on 3.10.2023, by the Punjab and Haryana HighCourt in CRM-M-12940 of 2021, in which the Punjab andHaryana High Court keeping in view the facts and law laiddown by the Hon’ble Supreme court in the case of DheerajKumar Shukla’s case, the petitioner therein was ordered tobe released on bail subject to his furnishing bailbonds/surety bonds to the satisfaction of the trial court/DutyMagistrate/Chief Judicial Magistrate, concerned subject tothe eight conditions contained therein; iv)Ganesh Pandurang Jadhao and another vs. TheState of Maharashtra and others, decided on 15.10.2020by this Court in criminal writ petition No. 1027 of 2015 andother connected matters, this Court in para 19 hasobserved asunder:-“Considering these facts, we are unable to give any benefit tothe petitioners/applicants in so far as the protection of Section188 of the IP Code against them. In so far as the other offences,namely, Sections 272 and 273 of the IP Code is concerned,Sections 272 and 273 both the provisions referred to sale ofprohibited articles. As stated above, there is positive materialagainst the petitioners/applicants to show that the large quantityof prohibited articles were being transported from one place toanother and statement in first information report on face of itconstitutes offences under Sections 188, 272 and 273 of IPCode.”v)Anand Ramchani Chaurasia and another vs. TheState of Maharashtra and others, decided by this Court on crivn349.23-5- 13.9.2019 in Criminal writ petition No. 3607 of 2019, inwhich this court held that the court do not intend tocontinue the prosecution against the petitioners therein asit would merely amount to an abuse of process of law andthe prosecution of the petitioners under Sections 328 and188 of the IPC, therefore, cannot continue. vi)Judgment of Madhya Pradesh High Court in thecase of Kamta Prasad @ K.P. Jaiswal s/o ShriRamkhelawan Jaiswal vs. the State of Madhya Pradesh,decided on 26.9.2022 in Criminal revision No. 1803 of2022, in which it is observed as follows:-“While framing a charge, the Court is expected to apply its mindto the entire record and documents placed therewith before theCourt. No meticulous examination of evidence is needed forconsidering whether the case would end in conviction or not.However, the Court is required to consider and apply its judicialmind, whether the allegations taken as a whole will, prima facieconstitute an offence and if so, whether continuation ofproceedings is an abuse of process of Court leading toinjustice.” vii)Hardeep Singh vs. Union Territory of J and K, inCM (M) No. 98 of 2021 c/w Bail Application No. 49 of 2021decided on 13.8.2021 by the High Court of Jammu andKashmir, in which it is observed that the learned trial courthas wrongly framed the charges to the extent of section 25and 29 of the Act, as such, the said petition is allowed andorder impugned therein to the extent of framing of chargeunder sections 25 and 29 of the Act was quashed. The trialshall continue for the other offences for which the petitionhas been charged. crivn349.23-6- Nobody will dispute the ratio, guidelines and principles laiddown in the above authorities. However, facts of each and everycase are decisive. It is an admitted fact that the evidence of morethan 10 witnesses have been recorded. 5.Learned A.P.P. for the respondent State pointed out thecharge at Exh.37 in Special case No. 326 of 2022. The C.A. report isalso filed. 6.Perused the charge sheet. No doubt, C.A. report is not apart of charge sheet but it can be filed lateron in the court withpermission. In the case in hand, the report shows that 93 tabletswere found with this applicant. From the C.A. report it is establishedthat sample complied with the requirement of Nitrosum-10 tablets,means it is contraband as prescribed in N.D.P.S. Act for which theapplicant is charged. It is also submitted that from the evidence ofwitnesses prima facie case is not established against the applicant.But now charge is framed and to proceed against the applicant thereis reasonable ground which can be inferred from the statements ofwitnesses as well as C.A. report which materially corroborates theprosecution’s case. Therefore, ratio laid down in the aboveauthorities though not disputed is not helpful to the applicant.Considering all these aspects, there is no substance in the groundsof objections raised in this application in view of the judgment of crivn349.23-7- Hardeep Singh (cited supra) which clarifies the object of N.D.P.S.Act.7.Considering all these aspects, the application deserves tobe rejected and it is rejected accordingly. 8.It is submitted that only five witnesses are remained. Theapplicant is behind bars since 18 months and therefore, trial beexpedited. Thus, it would be proper to direct the trial court toconclude the trial as expeditiously as possible. 9.In view of the above, it is expected that the trial court shallconclude the trial as expeditiously as possible and in any case withinsix months. It shall be tried as sessions case. Needless to state thatthe word “session” means once it is started it shall not be stopped tillit is finally concluded. (SANJAY A. DESHMUKH, J.) rlj/
Arguments
crivn349.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 906 CRIMINAL REVISION APPLICATION NO. 349 OF 2023Shaikh Asif S/o Shaikh JilaniVERSUSThe State of Maharashtra...Advocate for Applicant : Mr. Syed Moisali AmjedaliAPP for Respondent: Mrs. Pratibha J. Bharad ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 1st MARCH, 2024. PER COURT :- 1.This criminal revision application is directed against thecharge framed against this applicant by Special Judge, Aurangabad,under section 328 of the Indian Penal Code 1860 (for short “I.P.C.”)and Sections 18(a), 18(c), 27(b) (ii) of the Drugs and Cosmetics Actbelow Exh. 87 in Special Case No. 326 of 2022, in connection withthe F.I.R. No. 186 of 2022 dated 17.8.2022 registered withOsmanpura police station, Aurangabad.2.One Nasim Khan Shabbir Khan lodged a report that on16.8.2022 while patrolling, one Shri Ghuge informed him that twounknown persons came to sale some tablets of psychotropicsubstance. Thereafter, after completing all formalities, immediatelythey went to petrol pump with all officials. One person, who wastrying to run away, apprehended by staff and 93 tablets were seizedfrom his possession. A crime No. 186 of 2022 was registered at