STATE OF KARNATAKA Vs. CHETAN TAYAL

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 12-3-2003 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 feledged trial is held. The reasons assigned by the trial Court vis., 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 I.P.C. 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.) During the course of arguments, learned S.P.P. Mr. Dore Raju submitted that as soon as information was received by CW. 1, who was the ACP attached to Ulsoor Gate Police Station from whose jurisdiction the contraband articles have been seized, he had to rush to the office of respondent-accused Nos. 1 and 2 where allegedly the contraband articles were kept and therefore, the question of CW. 1 giving prior information and intimation to his official superior does not arise. Since contraband charas weighing about 267.5 grams and 222 counterfeit currency notes of Rs. 100/- denomination were recovered in the presence of the panchas that itself is sufficient to frame the charge. Further, it is argued that any report submitted by the NCB or the police authorities need not be looked into at the time of framing charge. The raid has been conducted by the ACP-CW. 1 and a case has been registered by the Police Inspector. Therefore, considering the fact that the ACP has submitted a favourable report to the respondents, the question that CW. 1 has not followed the mandatory provisions etc. does not arise and therefore, the trial Court has not properly appreciated the material placed on record even if any such reports received from the ACP and the concerned police making some allegations against the I.O. or the complainant as well as non-registration of the case by the then P.I. of Ashoknagar Police Station on the basis of the case filed by revision petitioner and the report received if any submitted by the Enquiry Officer against the then P.I. is a separate matter. There is a separate forum to enquire into the matter by initiating departmental proceedings against erring officials who failed to discharge their duty by registering a case. Therefore, it is submitted that at the time of framing the charge, the Court is required to see whether any prima facie case is shown to frame the charge and proceed to trial. Even if any mandatory procedures have not been complied by the I.O., law will not come to the aid of the respondents for seeking a discharge. Learned S.P.P. for the revision petitioner relied on the recent judgment of the Apex Court reported in AIR 2005 SC 359 (State of Orissa. v. Debendra Singh). Therefore, the Order of discharge passed by the trial Court is liable to be se,t aside as incorrect.