STATE OF KARNATAKA Vs. CHETAN TAYAL BANGALORE

JUDGEMENT

(1.) THIS Revision Petition is filed by the State of Karnataka under Section 397 read with 401 of Cr.P.C. challenging the Order of discharge dated 12.3.03 of respondent Nos.1 and 2 passed by the XXXIII Addl. City Civil & Sessions Judge & Spl. Judge (NDPS), Bangalore in spl. C.C. No.236/2001 for the offences punishable under Sections 20 and 25 of the NDPS Act and under S.489(C) r/w. S.34 of the I.P.C. The main grounds urged by the revision petitioner-State is that, the Court-below grossly erred in discharging the respondents-accused for the aforesaid offences in spite of the seizure of contraband charas i.e. narcotic drugs and the counterfeit notes. The reasons assigned by the trial Court that the contraband charas and the counterfeit notes could be planted by the persons who are inimically disposed off towards them is totally incorrect. Whether the complainant who has seized those contraband articles under the provisions of NDPS Act has violated the provisions of the Act has to be ascertained, only after full pledged trial is held. The reasons assigned by the trial Court viz., that there was no physical search of the respondents; that the other premises which is in the occupation of the respondents was not searched for discharging the accused are all irrelevant for coming to a conclusion that the accused are to be discharged. The information received by CW.1 as to the possession of the contraband goods by the accused not being forwarded to his official superior is not a ground to discharge the accused. In order to avoid the delay in trapping the accused, CW.1 rushed to the scene of offence without informing his official superior about the information received by him. The finding recorded in discharging the respondents-accused on the aforesaid grounds and throwing out the case of the prosecution at the threshold on the ground that the mandatory provisions have not been complied with has resulted in miscarriage of justice. The non-compliance of the mandatory provisions may cause some prejudice to the respondents-accused persons but whether the respondents-accused are entitled for discharge in serious offences committed under the NDPS Act and the provisions of IPC. Is a question to be answered after trial. The trial Court also erred in holding that as the respondents-accused persons have no criminal background, they were entitled for discharge is without proper appreciation of material evidence. Therefore, the impugned order under challenge is liable to be set aside.

(2.) HEARD the arguments of learned S.P.P. for the Revision Petitioner-State and Sri M.T. Nanaiah, learned Senior Counsel for respondent Nos.1 and 2.

(3.) IN support of the aforesaid contentions, learned Sr. Counsel for the respondents relied on the following decisions:- (a) A.I.R. 1979 S.C. Page 366 (Union of INdia .v. Prafulla Akumar Samal & Another) wherein the Apex Court held that:- "IN exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. "The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out." "Whether the materials placed before the Court disclose grave suspicion, against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial." (b) The decision rendered by Rajasthan High Court in V-1995 (2) Crimes, Page 338 (smt. Yashoda Bai .v. State of Rajasthan) wherein it has been held as follows:- "Order framing charge against petitioner for offences under " Revision against " Consideration for court at stage of framing of charge " Test to frame a prima facie case depends on facts of each case." (c) The decision rendered by the Apex Court in (2004) 10 Supreme Court Cases, 557 (State of Orissa .v. A. Rajeswar Patna) wherein it has been held as follows:-