MAYA KALSI Vs. STATE OF H P

JUDGEMENT

(1.) The present petition, under Section 397, read with Section 401 of the Code of Criminal Procedure, is maintained by the petitioner, for setting aside the impugned order dated 03.12.2015, whereby learned Special Judge, Kullu, H.P., has framed charge against the petitioner, under Sections 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereafter to be called as "ND & PS Act") .

(2.) The brief facts of the case, as per the prosecution are that on 10.05.2015, Head Constable Bhupender Singh alongwith Head Constable Ram Krishan, No. 62, Constable Chaman Lal, No. 357, Constable Vinay Singh, No. 674 and lady Constable Meena Kumari, No. 282, was on traffic checking duty. At about 6:30 p.m., one car bearing registration No. HP-34A-8000, coming from Kullu Side was signaled to be stopped. The said car was being driven by a foreigner and a foreigner woman was sitting with him on front seat. When documents of the car were demanded from the driver, both the foreigners were got perplexed and the driver thrown the waist money bag, black in colour, on the back seat of the car. At the same time, one car bearing registration No. HP-34D-0780 coming from Patlikuhal side was also signaled to stop by Head Constable Bhupender Singh, which was being driven by a local resident, namely Munna Lal. Thereafter, Head Constable Ram Krishan, No. 62 and Munna Lal were made witnesses and in their presence when names of the persons sitting in the car were asked, they told their names to be Mathias S/o Dietar, Nationality Deutsch and Maya D/o Onkar Nath Chand, Nationality British. When search of the above foreign citizens were made in front of the witnesses, no objectionable article was recovered, however when the waist money bag, which was thrown on the back seat of the car was searched, one transparent polythene tied with rubber band, in which, brown colour substance, stated to be MDA and currency notes, both Indian and foreign were recovered, which on weighment was found 165 gms. The recovered substance was sealed with eight seals of impression "T" and NCB form in triplicate was prepared and seal after use was handed over to the witness Munna Lal. After completing all necessary formalities, the petitioner alongwith co-accused was arrested and challan was presented before the learned trial Court and learned trial Court, vide order dated 03.12015, framed charge against the present petitioner. Hence the present petition.

(3.) Ms. Shilpi Jain, learned counsel appearing on behalf of the petitioner has argued that the petitioner was having no knowledge with respect to the alleged quantity of Narcotics recovered. She has further argued that the present petitioner has accompanied the co-accused from Goa to Manali only for the simple reason that she wanted to save her Flight fare from Goa to Kullu, which was unaffordable. She has argued that as far as abetment is concerned, no ingredients is there to prove the same, as there is nothing in the prosecution case to conclude that whether the petitioner had packed the material, kept the material or in any manner assisted the co-accused. She has further argued that as the petitioner is innocent, she may be discharged. Learned counsel for the petitioner, in support of her arguments placed reliance upon the decision of Hon'ble Supreme Court in Ismail Khan Aiyub Khan Pathan vs. State of Gujarat, (2000) 10 SCC 257 and stated that no presumption can be taken against the person sitting as a passenger in a car.