Sachin Jagdish Joshi v. State of Maharasht
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 65 of 2024 Hemant Arora @ Hemant aged about 39 years, son of Kedar Nath Arora, resident of E-36, Second Floor, Prashant Vihar, Sector-14, Rohini, Rajapur Kalan, P.O. and P.S. Sector-7, North West Delhi, District- Delhi Petitioner … … Versus Union of India through the NCB --- … Opp. Party CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Parties --- : Mr. Amit Kumar Sinha, Advocate : Ms. Saman Ahmad, Advocate : Ms. Chandana Kumari, Advocate --- 03/13.06.2024 Heard the learned counsel for the parties. 2. This criminal revision has been filed for setting aside the order dated 22.11.2023 passed by the learned Additional Judicial Commissioner-XXI, Ranchi in Cr. Misc. Application No. 2599 of 2023 arising out of N.D.P.S. Case No. 41 of 2021, corresponding to NCB Crime No. 09/NCB/Ranchi/2021 by which the Court has dismissed the application filed by the present petitioner for discharge under section 227 of Cr. P.C. in connection with NDPS Case No. 41 of 2021 corresponding to NCB Crime No. 09/NCB/Ranchi/2021 in which prosecution report has been filed under section 8C of the Cr. P.C. punishable under section 20(D) (II) (C), 25 and 29 of the NDPS Act and the same is pending before the learned Additional Judicial Commissioner-XXI, Ranchi. 3.
Legal Reasoning
prima facie case to proceed against the petitioner. 10. This Court has gone through the impugned order and finds that the learned court has considered the materials on record and recorded that Hemant Arora was the owner of the vehicle who had contacted Sunil Kumar over phone for booking of the vehicle stating that the seized vehicle was his own. This Court finds that the learned court has discussed the materials which has come during investigation and was of the view that prima-facie the charges were attracted and the petitioner may be directed to face the trial. The learned court has observed that at the stage of framing of charge, the trial court is not required to examine and assess in details the materials placed on record by the prosecution nor it is fit for the court to consider the sufficiency of material to establish the offence alleged against the accused persons. 11. This Court finds that the learned court has considered the materials on record while refusing to discharge the petitioner on the basis of sufficient prima facie material to proceed against the petitioner and has passed a well-reasoned order which does not call for 6 any interference in revisional jurisdiction. This Court finds no merit in this petition which is accordingly dismissed. 12. Let this order be communicated to the Court concerned through FAX. Binit (Anubha Rawat Choudhary, J.) 7
Arguments
Learned counsel for the petitioner has submitted that though the petitioner has been made accused in this case but the petitioner has no connection with the vehicle involved in the present case. He has referred to paragraph no. 21 and 32 of the prosecution report and submitted that a statement was made by the co-accused Brijesh Kumar that truck owner Yattan s/o Jagbir had asked him to load Ganja from Orissa by getting instruction from Samir. Brijesh Kumar has further stated that the seized vehicle was earlier owned by Hemant Arora (petitioner) but upon agreement, Yattan s/o Jagbir had purchased the same and applied for transfer of the documents. He submits that it has been mentioned in paragraph 32 of the prosecution report itself that during investigation certain letters were written to RTO, Kohima, Nagaland to provide the details of the seized vehicle and a report was received wherein it revelaed that the seized vehicle was registered in the name of Vinod Kumar Goyal who is a resident of Delhi and therefore the petitioner has no connection with the vehicle. He submits that this aspect of the matter has not been properly considered by the learned court while refusing to discharge the petitioner. The learned counsel has also relied upon the judgment passed by Hon'ble Supreme Court reported in (2008) 10 SCC 394 (Yogesh @ Sachin Jagdish Joshi versus State of Maharashtra) paragraph 16 to submit that the Court has to sift and weigh the materials on record to find out as to whether prima-facie case is made out against the accused or not though the same will depend upon facts and circumstances of each case, but in the present case there is no material against the present petitioner. He has also submitted that it has also been held that if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he would be fully within his right to discharge the accused. 4. The learned counsel appearing on behalf of the opposite party has opposed the prayer and has submitted that the report of RTO Kohima, Nagaland was not sufficient to discharge the petitioner. The connection of the petitioner has been specifically mentioned in paragraph 21 of the prosecution report and it is essentially a matter of trial as to whether the petitioner was connected with the vehicle or not. She has submitted that the petitioner could still be connected with the vehicle even if he was not the registered owner of the vehicle. She has submitted that at this stage, mini trial is not required to be conducted by this Court and has relied upon the judgment passed by the Hon’ble Supreme Court reported in 2023 SCC Online 379 (Central Bureu of Investigation versus Aryan Singh). 2 5. As per the prosecution report, letters were written to the RTO Kohima, Nagaland to provide the details of the seized vehicle and consequently, it was informed that the vehicle was registered in the name of Binod Kumar Goyal, Delhi. It also revealed that the mobile number was mentioned in place of vehicle owner and vehicle user and the said mobile number was found in the possession of the arrested accused Birjesh Kumar. It has come in the prosecution report that notices were also issued to Md. Tahir and One Girraj Prasad Prajapati on 22.01.2022 but they failed to appear and during investigation it has come that a letter was written to M/s. Sahil Roadways to provide the details of the trucks and other details which were returned undelivered. 6. In response, it was intimated that they work for commission basis and the name of the owner of the vehicle NL01Q7970 was Hemant Arora (petitioner) who had contacted them over telephone and told them that he has already talked with M/s. Shiv Building Material, represented by Mr. Mullaji regarding the freight and payment and requested him to engage his vehicle for transporting asbestos sheets. He also provided the telephone number of the owner and also xerox copy of the R.C. book of the vehicle which stood in the name of Hemant Arora (petitioner) . It has been recorded in the prosecution report as follows:- “On perusal of the reply and mobile numbers, it transpired that mobile number of Md. Tahir and Md. Mullaji is same and in fact Md. Tahir is Mr. Mullaji which Tahir confirmed over phone that he contacted the transporter.” It has also come during evidence that mobile number of Hemant Arora as mentioned by M/s. Sahil Transport were found to be same mobile number used by Yattan and his father Jagbir. 7. Para 46 & 48 of the prosecution report filed before the learned court is quoted as under 46. “ That, during the course of investigation, the CDR analysis was done and as per Initial CDRs analysis, the chain/link among the arrested accused persons Birjesh Kumar & Anuj Kumar, suspected receiver Sammer @ Md. Masoom Alam and 3 Supplier Runa Lima and Kusha Sabar was well established. Further, communications were also established between arrested accused persons with Yattan and Jagbir. Accordingly, an initial DTO chart indicating the linkages among the accused persons/suspects was prepared and sent to the ZD, NCB Patna on 14.08.2021. Further, as per the information provided by Sunil Kumar, M/s. Sahil Transport, the communication has also been confirmed between Hemant Arora with the transporter i.e. Sahil Transport for booking of the vehicle stating the seized vehicle as his own. Further, communication has also been verified between Sahil Transport with Birjesh Kumar and Md. Tahir @ Mullaji. The CDR analysis indicates the connivance and bigger conspiracy among the arrested persons Birjesh Kumar & Anuj Kumar and Sameer @ Md. Masoom Alam, Kusha Sabar, Yattan, Jagbir and Hemant Arora. Not only that, the tower location of the accused persons also corroborated the statements and factum of recovery. Further, the detailed CDR analysis report was done and the updated CDR analysis was sent to the Zonal Director, NCB Patna on 20.01.2022. 48.That, from the facts and circumstances stated in the forgoing paragraphs, it is evidently established that the arrested accused persons Birjesh Kumar and Anuj Kumar @ Anuj who were knowingly carrying Ganja in the truck and were arrested with the consignment of 114 Kgs of Ganja, Md. Masoom Alam @ Sameer, Yattan and Jagbir, who had eventually been the main perpetrator of the crime and Hemant Arora who used fake RC documents in his name (as revealed by the report of RTO and Mahindra & Mahindra) and used his PAN for engaging transport for carrying Asbestos sheet just to deceive the enforcement agency by making conspiracy with the driver and Yattan/Jagbir, further Kusha Sabar, who worked as an accomplice of Runa Lima (whose whereabouts could not be verified yet due to unavailability of detail address, father's name, photograph etc.), supplied the seized Ganja to Birjesh Kumar and Anuj for further delivery to Sameer, are the key players behind the criminal conspiracy 4 and are found involved in the instant seizure of 114 kg Ganja. Since, whereabouts of Runa Lima and Abhishek are yet to be verified/obtained, Investigation against them are underway. Further, Vinod Kumar Goyal, Md. Tahir @Mullaji, Girraj Prasad Prajapat, Partha Sarathi Padhy and Sunil Kurnar are yet to be appeared and their role in the instant case is still under scanner. Hence, investigations against them are also underway.” 8. In the judgement of Hon'ble Supreme Court, Yogesh v. State of Maharashtra, (2008) 10 SCC 394, the required scrutiny at the stage of discharge has been considered. It has been held that the court is bound to decide whether there is “sufficient ground” to proceed against the accused and the words “not sufficient ground for proceeding against the accused” appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution and has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out which would depend upon the facts of each case It has been held that by and large, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. Paragraph 15 and 16 of the aforesaid judgement is quoted as follows: - 15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is “sufficient ground” to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. 16. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the section 5 postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard, it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible. 9. This Court finds that there was material connecting the petitioner with the alleged offence for the purposes of arriving at