Ankit Pachwaria v. State of H.P.

learned Trial Court against the accused for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS). It was asserted that police had set up a Naka on 25.5.2023 at the Bhiuli Chowk, Mandi. They stopped a vehicle bearing registration No. HR-51- BU-9902 and asked the driver to produce the documents. The driver prevaricated. The occupants of the vehicle appeared to be frightened. The police became suspicious and searched the vehicle in the presence of Prakash Chand and Anil Sharma. The driver identified himself as Ankit Pachwaria, and the person sitting as a passenger revealed his name as Sarvagya Sharma. The police searched the vehicle after completing the formalities and recovered 328 grams of charas. The police seized the charas and arrested the petitioner/accused. The charas was sent to the Forensic Science Laboratory (FSL), and as per the result of 3 analysis, the quantity of purified resin in it was found to be

32.86% w/w. The exhibit was an extract of cannabis and a sample of charas. Hence, a charge sheet was filed before the Court for taking action as per the law.

Learned Trial Court found sufficient reasons to frame the charges against the accused for the commission of offences punishable under Sections 20 and 29 of the NDPS Act vide order dated 24.3.2026.

Being aggrieved by the order passed by the learned Trial Court, the petitioners have filed the present petition asserting that the petitioners were falsely implicated and had nothing to do with the commission of the crime. The investigation was not completed fairly and impartially, and relevant evidence was not obtained from the spot. The recovery was made from the private vehicle, as per the prosecution, and the provisions of Section 42 of the NDPS Act were not complied with. The police had sufficient time to record the reasons before the search of the vehicle, and the petitioners were entitled to discharge solely on this ground. There were material contradictions in the statements of the prosecution witnesses, 4 which made them doubtful. The Court was required to examine whether there existed sufficient ground for proceeding, and if there was no material, the accused was to be discharged. Learned Trial Court held that the issues raised were a matter of trial, and this conclusion is legally unsustainable. The procedural safeguards were violated. Therefore, it was prayed that the present petitions be allowed and the order passed by the learned Trial Court be set aside.

I have heard Mr Suneel Awasthi, learned counsel for the petitioners and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.

Mr Suneel Awasthi, learned counsel for the petitioners, submitted that the police had not complied with the requirements of Section 42 of the NDPS Act, which is fatal to the prosecution's case. Learned Trial Court erred in holding that the pleas taken by the petitioners were a matter of trial. Therefore, he prayed that the present petitions be allowed and the order passed by the learned Trial Court be set aside. He relied upon the judgment of the Hon’ble Supreme Court in Boota Singh and others Vs. State of Haryana (2021) 19 SCC 606, Ram Prakash 5 Chadha Vs. State of U.P. (2024) 10 SCC 651 and ITC Ltd. Vs. State of Karnataka & anr. 2025 INSC 1111 in support of his submission.

Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the Court has to see a prima facie case while framing charges, and the contents of the charge sheet showed a prima facie case against the petitioners. The learned Trial Court had rightly held that the pleas taken by the petitioners were required to be seen at the time of the Trial. There is no infirmity in the order passed by the learned Trial Court. Hence, he prayed that the present petitions be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

It was laid down by the Hon’ble Supreme Court in Vishnu Kumar Shukla v. State of U.P., (2023) 15 SCC 502: 2023 SCC OnLine SC 1582 that the Court framing the charges has to see a prima facie case. It is impermissible to examine the material threadbare to determine whether the accused is likely to be convicted or not. It was observed: - “12. The primary consideration at the stage of framing of charge is the test of the existence of a prima facie case, and at this stage, the probative value of materials on 6 record need not be gone into. This Court, by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338, has held that the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion on the existence of factual ingredients constituting the offence alleged, and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to a conviction at the conclusion of the trial.

It was held in Ram Prakash Chadha v. State of U.P., (2024) 10 SCC 651: (2025) 1 SCC (Cri) 253: 2024 SCC OnLine SC 1709 that the Court can sift and weigh the evidence to determine if a prima facie case exists against the accused. It was observed at page 661: “24. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227 CrPC, and entering into the scope of power under Section 232 CrPC, cannot be ruled out, as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI, (2000) 5 SCC 679: 2000 SCC (Cri) 1014. Taking note of the language of Section 227CrPC, is in negative terminology and that the language in Section 232 CrPC, is in the positive terminology and considering this distinction between the 7 two, this Court held that it would not be open to the Court while considering an application under Section 227 CrPC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232 CrPC, even though the said stage has not been reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232 CrPC, available only after taking the evidence for the prosecution and examining the accused.

It was held in Yuvraj Laxmilal Kanther v. State of Maharashtra, 2025 SCC OnLine SC 520, that the Court is not to undertake a threadbare analysis of the material but to see if there is sufficient material to frame charges. It was observed:

16. Section 227 CrPC deals with discharge. What Section 227 CrPC contemplates is that if, upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there are no sufficient grounds for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. At the stage of consideration of discharge, the court is not required to undertake a threadbare analysis of the materials gathered by the prosecution. All that is required to be seen at this stage is that there are sufficient grounds to proceed 8 against the accused. In other words, the materials should be sufficient to enable the court to initiate a criminal trial against the accused. It may be so that at the end of the trial, the accused may still be acquitted. At the stage of discharge, the court is only required to consider whether there are sufficient materials that can justify the launch of a criminal trial against the accused. By its very nature, a discharge is at a higher pedestal than an acquittal. Acquittal is at the end of the trial process, may be for a technicality or on the benefit of doubt, or the prosecution could not prove the charge against the accused; but when an accused is discharged, it means that there are no materials to justify the launch of a criminal trial against the accused. Once he is discharged, he is no longer an accused.

The present petitions have to be adjudicated as per the parameters laid down by the Hon’ble Supreme Court.

The copy of the charge sheet placed on the record specifically mentions that the petitioners were occupying the vehicle. The police searched the vehicle after becoming suspicious of the petitioners’ conduct in the presence of Prakash Chand and Anil Sharma and recovered 328 grams of charas from it. The petitioners were occupying the vehicle when it was intercepted by the police. In Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was recovered from a vehicle, and it was held that all 9 the occupants of the vehicle would be in conscious possession of the contraband. It was observed: “19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were known to each other, and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that to make the possession illicit, there must be conscious possession.

It is highlighted that unless the possession was coupled with the requisite mental element, i.e., conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

The expression “possession” is a polymorphous term that assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in the Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes.

The word “conscious” means awareness of a particular fact. It is a state of mind which is deliberate or intended.