POTTEKKADU SURESH Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused Nos. 1 and 2 in Sessions Case No. 72/99 on the file of the Special Judge (NDPS Act cases), Vadakara. The Sub-Inspector of Police, Tirur conducted a raid on 6-1-1997 in toddy shop with Licence No. 14/96-97 and arrested three persons from the toddy shop. Petitioners were arrested from the room where toddy was stored. Allegation was that based on the assumption that they were employees of the shop a case was registered under S. 55(a) of the Abkari Act and Ss. 336 and 272 of the Indian Penal Code and Crime No. 8/87 was registered. The chemical anaylsis report received on 11-5-1999 disclosed that toddy contained diazepham. The licensee of the toddy shop is arrayed as fourth accused and a final charge under S. 22 of the Narcotic Drugs and Psychotropic Substances Act was filed against the four accused and all the four accused were released on bail. According to the petitioners, they are not employees of the above shop and they have no connection with the toddy shop. They also contended that there is defect in the chemical anaylsis report. Petitioners 1 and 2 filed a petition as Crl. M.P. No. 417/99 before the Special Judge (NDPS Act cases), Vadakara praying for a discharge on the ground that there is no prima facie evidence to connect the petitioners with the offence. That was rejected. In Crl. R.P. No. 996/99, this Court directed the learned Special Judge to pass detailed order after hearing the petitioners and the prosecutor regarding the scope for framing charge against all or any of the accused. Finally, Annexure 'D' order was passed.

(2.) Mainly two contentions are raised before this Court. One is that petitioners were not employees of the shop and there is no prima facie case against the petitioners. Annexure 'E' is the certificate issued by the Welfare Fund Inspector, Malappuram wherein it is stated that during the period 1-4-1998 to 31-3-1997 only one person was registered in the Welfare Fund. Merely because only one person was registered in the Welfare Fund it cannot be stated that no other persons were working in that shop and it is difficult to believe why only with one person the above shop was functioning. They were allegedly arrested from the place where toddy was stored. Whether the chemical analysis report can be accepted; whether petitioners are employees etc. can be considered only after evidence is over.

(3.) The Supreme Court in State of M.P. v. S. B. Johari, 2000 AIR SCW 189 : (2000 Cri LJ 944) considered the scope of Ss. 397, 227 and 228 of the Code of Criminal Procedure. It was held that the Court at the stage of Ss.227 and 228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. High Court cannot appreciate and weigh the materials on record to find out whether finally accused will be convicted or not. Trial Court also is not required to marshal the materials on record of the case as he would do on the conclusion of the case. Court is bound to peruse the records for the limited purpose of finding out whether there is a prima facie material to charge-sheet the accused and if the allegations taken at the face value discloses the existence of the ingredients constituting the alleged offence.