STATE OF H.P. Vs. PAWAN KUMAR

JUDGEMENT

(1.) This is a revision petition filed by the State under section 397 read with section 401 of the Code of Criminal Procedure against the order dated 1 -4 -1991 passed by the learned Sessions Judge, Kangra Division at Dharamshala, whereby the accused has been discharged in case F.I.R No. 340/89, deted 3 -11 -1989 registered at Police Station, Kangra with respect to recovery of 1 kg 700 gms. of Charas under the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to "N. D. P. S. Act") by giving reasoning that there is non -compliance of sections 42t 50, 52 and 55 of N D. P. S Act which are mandatory in nature The learned Sessions Judge has also relied upon the authority of this Court in Criminal Revision No. 81 of 1990, decided on 2010 1990. The accused Shri Pa wan Kumar was found in possession of 1 kg 700 gms. Charas and recovery was effected just near HIFED store, Nagrota Bagwan, Tehsil and District Kangra on his personal search The accused was apprehended when he tried to run on seeing the police. After investigation the challan was put up before the learned Sessions Judge for trial. The learned Sessions Judge discharged the accused for non -compliance of the aforesaid provisions by the prosecution.

(2.) Feeling aggrieved this revision petition has been filed by the State saying that the discharge order is illegal, wrong and not sustainable in law. The order has also been challenged on the ground that learned trial Court has wrongly held that in this case the Investigating Officer had not reduced into writing secret information as required under section 42 of the N. D. P. S Act. It is stated that in this case there was no secret information available with the police about the accused carrying the Charas and as such there is no question of reducing any information into writing.

(3.) I have heard the counsel for the parties For framing of a charge it is a well settled principle of law that if the allegations supported by record, if any, remains unrebutted and no offence is disclosed if those allegations are accepted to be true then only a discharge order has to be made. Relevant sections are sections 227 and 228 of Chapter XVIII of Code of Criminal Procedure dealing with trial before a Court of Session. Section 227 and section 228 abovesaid are reproduced herein below: "227. Discharge -If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, , the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." "228. Framing of charge. -(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under Clause (b) of sub -section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."