ERAN ELIAV Vs. STATE

JUDGEMENT

(1.) THIS revision petition is directed against the order on charge dated 23.05.2006 passed by the learned Additional Sessions Judge whereby the petitioner was charged with the offence under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'). The prosecution's case, as indicated in the impugned order, is that on 15.12.2005, a secret information was received by Sub- Inspector Shanti Swaroop that four pahari boys, whose leader was Pratap, would be coming from Manali, carrying with them charas in large quantities and would be delivering the same between 6.00 p.m. to 7.00 p.m. that day itself at Thomson Road, Ajmeri Gate near the Metro Railway Station to one "Israeli youth..". It is further alleged that at 6.30 p.m., four boys were seen coming from Ajmeri Gate towards Thomson Road and that each of them was carrying a bag. One of them, whose name was later on disclosed as Pratap, handed over a bag to a foreigner who was later on found to be a national of Israel and whose name was Yaniv Kohlani. Immediately on delivery of the said bag, the four boys and Yaniv Kohlani as well as the petitioner herein (Eran Eliav) were apprehended. The petitioner is also from Israel. His name figures only towards the end of recording of the recovery proceedings and it is indicated that his role was confined to his being present on the spot. He was booked for the offence of conspiracy under Section 29 of the NDPS Act. It would be pertinent to note that the petitioner had filed an application for bail and the same was granted to him by the learned Additional Sessions Judge by an order dated 04.04.2006. The learned Additional Sessions Judge, while granting bail, referred to the material on record and indicated that this court in the case of Kassu Ram v. State (Bail Appln No. 558/2005, decided on 13.04.2005) had after considering the decisions of the Supreme Court, observed that secret information was not admissible unless the informer was produced at the stage of trial. While considering the grant of bail, the learned Additional Sessions Judge came to a prima facie conclusion that the petitioner is not likely to be convicted inasmuch as the mere fact that the petitioner was found present at the spot alongwith someone who was accepting delivery of the contraband would not be sufficient, prima facie to hold that the petitioner was also in possession of the contraband or had abetted or conspired with the co-accused. The learned Additional Sessions Judge, therefore, concluded that there are reasonable grounds to believe that the petitioner was not guilty of the offence and that, if released on bail, would not commit the offence again. Thus, the petitioner was directed to be released on bail though the provisions of Section 37 of the NDPS Act were deemed to have applied.

(2.) THE petitioner, extending the reasoning given in the bail order, has filed this revision petition stating that once the court has already come to a prima facie conclusion that there are reasonable grounds to believe that the petitioner would not be convicted, the same ought to have weighed with the court while passing the order on charge. Mr. K.K. Sud, the learned senior counsel appearing on behalf of the petitioner, submitted that the secret information that was received by Sub-Inspector Shanti Swaroop was only in respect of "one Israeli youth" and that happened to be Yaniv Kohlani. There was no reference to a second Israeli youth. It was further contended by him that the petitioner was merely found to be present near the scene of the alleged delivery/recovery. The petitioner was not given any notice under Section 50 nor was his person searched and nothing is alleged to have been recovered from him. Therefore, according to Mr. Sud, there is nothing on record to connect the petitioner with the co-accused and, accordingly, the charge under Section 29 of the NDPS Act would merely amount to conjectures and surmises. He submits that the purported confessional-cum-disclosure statement of the co-accused Yaniv Kohlani and followed by the purported confessional-cum-disclosure statement of the present petitioner on 16.12.2005 were not admissible in evidence and, in any event, the petitioner and the co- accused had retracted the said statements. It was also contended that the disclosure statement recorded by the police after arrest could not be used against the co-accused.

(3.) MR . Malik, who appeared on behalf of the State, submitted that at the stage of framing of charges, mere suspicion was enough. However, before a conviction can be established, the prosecution would have to prove its case beyond reasonable doubt. That, of course, is a matter of trial and for which purpose evidence would have to be led by the prosecution. The defence would have ample opportunity to cross-examine the witnesses which the prosecution would produce and would try to establish the innocence of the petitioner. He submitted that, at this stage, however, there is enough material to frame a charge against the petitioner. He referred to the decision of the Supreme Court in the case of Umar Abdul Sakoor Sorathia v. Intelligence Officer Narcotic Control Bureau, 1999(3) RCR(Criminal) 658 : 2000(1) SCC 138, wherein the Supreme Court at page 144 held :