Shashi Kumar v. State of Rajasthan

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Revision No. 1473/2017

Shashi Kumar ----Petitioner
Versus
State Of Rajasthan Through Pp ----Respondent

For Petitioner(s): Mr. Anil Upman, Mr. Rajveer Singh
For Respondent(s): Mr. V.S. Godara, PP

[NyayVidhan notes: Stored from the official Rajasthan High Court PDF of the judgment/order (hcraj file 204100014732017_1.pdf, 4 pages, uploaded 14.05.2018). (1) The order's paragraphs are not numbered. The numbers 1-9 were added by NyayVidhan at the order's own paragraph breaks (first-line indents), for reference only; they are not the Court's numbers. (2) The cause title is abridged: the petitioner's parentage, the description of his community printed after his name, his age, his residential addresses and his place of custody are omitted. (3) The registration number of the car, printed four times (paragraphs 3, 4 and 7), is withheld and shown as [registration number withheld]; the PDF is the Court's original copy. (4) The order prints no neutral citation and no 'Reportable' mark. (5) The text is otherwise as printed, including 'Section 8/20 (b)(ii)(c)' (paragraphs 2 and 6), 'the judgment referred to by Co-ordinate Bench' (paragraph 3), 'recovery was affected' (paragraph 4), 'dicky' (paragraphs 3 and 6) and 'relevant document' (paragraph 5). Page furniture (running heads, page numbers, upload/download stamps, the staff line and the TCPDF line) is removed. The PDF is authoritative.]

[Source: Rajasthan High Court, hcraj.nic.in — judgment/order dated 14.05.2018.]

HON'BLE MR. JUSTICE DEEPAK MAHESHWARI

Judgment / Order

14/05/2018

1. Heard learned counsel for the petitioner as also learned Public Prosecutor.

2. This revision has been preferred against the order dated 18.08.2017 whereby learned trial Court proceeded to frame charge against the petitioner for the offence under Section 8/20 (b)(ii)(c) and Section 8/25 of the NDPS Act.

3. Learned counsel for the petitioner contends that the order by which learned trial Court directed to frame the charge does not contain any factual basis on which the direction to frame charge has been given. The order does not give any justification/reason to come to the conclusion aforesaid. His further contention is that as per the prosecution story, 12 kgs of Ganja was recovered from the possession of accused Ravi Kumar who was holding it in one bag lying between his legs and 14 kgs of Ganja was recovered from the dicky of the car No.[registration number withheld] which was allegedly driven by the petitioner at the time it was intercepted by police. Counsel contends that both the quantities of the Ganja recovered from the car cannot be clubbed together to frame the charge against the petitioner for the commercial quantity of intercepted contraband, as 12 kg of Ganja being in possession by co-accused Ravi Kumar. There is no evidence available on record to show that petitioner Shashi Kumar was having conscious knowledge about the possession of 12 kg of Ganja by Ravi Kumar. In support of his contention, learned counsel has relied upon the judgment referred to by Co-ordinate Bench of this Court in Akhlak @ Vilasan & Anr. Vs. State of Rajasthan reported in 2010(2) Cr.L.R. (Raj.) 1542. He has also relied upon judgment passed by Hon’ble Supreme Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat reported in (2005) 7 SCC 550 which was passed in the criminal appeal.

4. Per contra, learned Public Prosecutor has stated that as per the rojnamcha report dated 11.10.2016, both the quantities of Ganja i.e. 12 kg and 14 kg were recovered from the vehicle No.[registration number withheld]. Both the accused persons namely Shashi Kumar & Ravi Kumar were found in the car No. [registration number withheld]. There is no dispute to the fact that the recovery was affected of the alleged quantity of contraband from the aforesaid car. He contends that from the aforesaid facts and circumstances, it can be safely inferred that they were having joint possession of the contraband recovered in the car.

5. I have given thoughtful consideration to the rival arguments advanced and gone through the relevant document.

6. On perusal of the order dated 18.08.2017, whereby learned trial Court ordered that the charge is to be framed for the offence under Section 8/20 (b)(ii)(c) and Section 8/25 of NDPS Act against the petitioner, it is found that this order does not contain any analysis on factual matrix. In the present situation, no ground exists for framing the charge for the aforesaid offence when the rojnamcha report mentions that 12 kg of Ganja was recovered from the possession of Ravi Kumar himself, which he was holding between his legs and 14 kg of Ganja was found in dicky of the car. The trial Court ought to have discussed and given its reasons as to why both the quantities of contraband are considered to have been recovered from the conscious possession of the petitioner. Without giving any reason for coming to this conclusion, order framing the charge against the petitioner of commercial quantity of Ganja, cannot be sustained.

7. In so far as the issue of framing of charge for the offence under Section 8/25 NDPS Act is concerned, it is found that when the Car No.[registration number withheld] was intercepted by police, petitioner, who is said to be registered owner of the vehicle, was found driving the car. It is not the case of the prosecution that the petitioner has knowingly permitted the car to be used for the commission of the offence by any other person. When the prosecution story was that the owner of the vehicle was himself driving the car, there appears no justification to frame the charge for the offence under Section 8/25 of NDPS Act.

8. In view of the discussion made above, order dated 18.08.2017 passed by learned trial Court cannot be sustained and is quashed and set aside. Direction is given to the learned trial Court to hear both the sides on the question of framing the charge afresh and in light of the discussion made above to arrive at its conclusion again on the issue of framing the charge on the basis of the material made available by the prosecution.

9. The petition stands allowed in above terms. The trial Court is further directed to pass the order afresh within a period of one month from today.

(DEEPAK MAHESHWARI),J