SUBHASH Vs. INSPECTOR OF POLICE, KALAMASSERY

JUDGEMENT

(1.) The revision petitioner is the 1st accused in S.C.No.481/11 on the files of the Additional Sessions Court (Ad hoc-II), Ernakulam, which arose from Crime No.1374/11 of the Kalamassery Police Station, registered for the offence punishable under Sec.22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and the petitioner in Crl.M.P.No.658/12 filed therein. Now, he, along with accused Nos.2 to 4, stands charge sheeted by the 1st respondent for the said offence and the court charge yet to be framed. In that context, he filed the above Crl.M.P. under Sec.228 of the Code of Criminal Procedure seeking an order to split up the charge against him from other accused and try him separately on the ground that even, according to the prosecution, he has committed a minor offence only under Sec.22(b) of the NDPS Act and not under Sec.22(c) of the NDPS Act, as charge sheeted by the police. After hearing the revision petitioner and the prosecution, the learned Sessions Judge refused to split up charge and consequently the petition was dismissed. That order is under challenge in this revision petition.

(2.) The prosecution case, in brief, is as follows: On 11/7/2011 at 5 p.m., while C.W.8, the Sub Inspector of Police, Kalamassery Police Station, was on patrol duty, he got an information regarding the alleged offence committed by the accused and others. Then, he, along with police party, proceeded to the place of occurrence and seen the 1st accused sitting in front seat of a car and another accused was found sitting in the back seat of that car. Two other accused were found standing near the car leaning on it. The search of the persons revealed that the 1st accused Subash was in possession 9 ampules of Lupigesic Buprenorphine injection each of 2 ml., the 2nd accused Vipin was in possession of 8 such ampules, the 3rd accused Alen Toney was in possession of 9 such ampules and the 4th accused Saneer was in possession of 7 ampules of Lupigesic Buprenorphine injection. There were 11 such ampules and one Dizepam injection along with 6 syringes were found inside the box of the car. According to the prosecution, all the accused had brought and possessed the aforesaid total quantity of psychotropic substances for the purpose of sale.

(3.) Sri. Mathai Varkey Muthirenthy, the learned counsel for the revision petitioner, contends that the 1st accused has no connection with the other accused in the case and the total quantity of psychotropic substance recovered from the possession of the 1st accused is only 9 ampules and that allegation, even if taken at its face value and admitted at its entirety, would disclose an offence punishable under Sec.22 (b) of the NDPS Act, a minor offence under the NDPS Act. All the four accused werein independent possession of the psychotropic substance. That being so, it cannot be said that all the accused were in joint possession of the total quantity seized. Each accused, as per the allegation, had committed separate and distinct offence. Therefore, the charge against all the accused cannot be a joint one. Therefore, the charge against 1st accused should be split up and he shall be tried separately. The prosecution has no case under Sec.29 of the NDPS Act against the accused. In the absence of an allegation under Sec.29 of the NDPS Act, more than one person cannot be clubbed together, as common intention should come only under Sec.29 of the NDPS Act.