SHREE KUMAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Rajeev Ranjan Raj, learned counsel for the petitioner and Mr. Ranjay Kumar, learned counsel for the Custom Department.

(2.) The instant petition has been filed under Sec. 482 of the Code of Criminal Procedure ( in short 'Cr.P.C.') for quashing the order dtd. 29/10/2018 passed by learned Additional District and Sessions Judge- X cum- Special Judge, NDPS Act, Patna in Special Case No. 100 of 2001 relating to Customs Case No. 108 of 2001 arising out of Udwantnagar P.S. Case No. 193 of 2001 whereby and whereunder learned Special Judge has rejected the petitioner's prayer for discharge made under Sec. 227 of the Cr.P.C.

(3.) Learned counsel appearing for the petitioner submits that the instant matter relates to the recovery of 650 kg of narcotic material namely, Ganja and the recovery is said to have been made on 11/10/2001 but from the entire prosecution story narrated in the final complaint as well as in the initial written information filed by the Custom Department and any kind of the association of the petitioner with the seized narcotic materials does not appear even prima facie. As per the prosecution story, the alleged contraband was recovered near the house of the co-accused, Bharat Bhusan Singh @ Lami Singh and the same was found covered with straw but it is an admitted position that the custom officials could not have found out the owner of the seized contraband and in this regard, the main complaint as well as initial written information which can be treated as an FIR may be perused. The petitioner has been made accused mainly on the basis of whispering of villagers but names of the said villagers were not disclosed in the complaint as well as initial information and regarding the place of recovery, the seizure memo is also relevant in which it was mentioned that unclaimed recovered from the place near the house of one Lami Singh at Masarh village and with the complaint, the custom department filed a list of witnesses as Annexure-I in which the details of 21 persons as witnesses has been given but among them no name of any villager finds place. Among these witnesses 19 are official persons rest two belong to Patna district who simply accompanied the custom officials to the place of recovery and during the investigation, the investigating officer did not record the statements of any of the cited witnesses. The investigating officer sent the notices under Sec. 67 of the NDPS Act to the accused persons named in the complaint including the petitioner but did not take any attempt to examine the witnesses, cited and detailed in the witness list. The villagers who were claimed by the custom officials to have whispered and disclosed the names of this petitioner and other co-accused persons as being involved in the commission of the alleged offences were also not examined and even their identity was not disclosed and none of the accused persons, except the petitioner, appeared before the investigating officer to record his statement. But the petitioner appeared and recorded his statement under Sec. 67 of the NDPS Act in which he fully denied his any role in keeping or smuggling or trafficking the alleged seized contraband. The petitioner is a retired Armed Force Personnel and at the time of recovery, he was newly elected Mukhiya. He further submits that as per the complaint, the custom officials were mishandled, assaulted and their belongings were looted by a large mob consisting of sixty to seventy persons when they were carrying the seized contraband and completing the seizure formalities and regarding that occurrence, Udwantnagar P.S. Case No. 193 of 2001 was registered, though, the petitioner was also one of the accused in that case but he was not sent up by the police and other accused persons who were sent up and faced trial, have been acquitted of the charged offences. The petitioner filed his petition with a prayer to discharge him under Sec. 227 of Cr.P.C. to which the prosecution filed his rejoinder dtd. 22/9/2018 in which also accepted the factum of recovery near the house of co- accused, Bharat Bhusan, though, it was mentioned in the rejoinder that there were sufficient materials to frame the charge against the petitioner but none of these claimed materials was disclosed in the said rejoinder. It is lastly submitted by petitioner's counsel that the order impugned is completely mechanical and the trial court simply mentioned in the order that there were sufficient materials on the record to frame the charges but no such material was disclosed or discussed.