AEJAZ ISMAIL SAYED Vs. UNION OF INDIA

JUDGEMENT

(1.) The present petition has been filed by the petitioner for quashing charges framed against him vide order dated 24.12.2019 by the court of learned 1 st Additional Sessions Judge, Jammu (hereinafter to be referred as trial court) in case, titled, 'Union of India Narcotic Control Bureau vs. Sheikh Rafi Bhai and another'.

(2.) Brief facts necessary for the disposal of present petition are that the complaint was filed by the respondent No. 1 against the petitioner and respondent No. 2 for commission of offences punishable under sections 8, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) before the learned Sessions Judge Jammu, that was subsequently transferred to the trial court wherein it was alleged that the complainant received secret information from reliable sources on 20.11.2018 that a person, namely, Sheikh Rafiq Bhai (respondent No. 2) who is a resident of Gujarat is coming to Bus Stand, Jammu from Kashmir Valley along with huge quantity of narcotic drugs. The information was reduced in writing and placed before the Zonal Director NCB Jammu, who, in turn, directed the Intelligence Officer to constitute a team and take action vide office order dated 20.11.2018. On the direction of the Zonal Director, the Intelligence Officer received the NCB seal and left from the NCB Office Gandhi Nagar at about 1820 hours. On reaching Bus Stand, Jammu, the Intelligence Officer approached three persons and requested them to be independent witnesses for the search and other legal formalities. Their request was turned down by the independent witnesses. Thereafter, the Intelligence Officer notified his team members and requested them to be independent witnesses under section 53 of the Act. The team led by the Intelligence Officer at 2020 hours, intercepted a person who was carrying two bags with him. The Intelligence Officer introduced himself by showing his identity card and also introduced his team and both independent witnesses present there. On enquiry, the intercepted person disclosed his name as Sheikh Rafiq Bhai Musa Bhai S/o Musa Bhai (respondent No. 2). The Intelligence Officer served notice under section 50 of the Act in writing and also verbally informed the intercepted person regarding his proposed search and after receiving the consent, the Intelligence Officer carried out personal search of respondent No. 2 and nothing incriminating was recovered. However, twenty packets of contraband were allegedly recovered from the two bags those were being carried by respondent No. 2 and the same was found to be charas.

(3.) Thereafter, sampling under rules was conducted and the seized contraband was sealed and necessary documents like panch-nama, seizure memo and other documents were also prepared. It is further stated that Intelligence Officer issued notice under section 67 of the Act to the petitioner that was received back undelivered and later on, the petitioner was arrested at Srinagar Airport and handed over to the Intelligence Officer NCB Jammu. It is further stated in the complaint that the petitioner has made voluntarily confessional statement and based on the confessional statement, he was placed under arrest under section 8, 20 and 29 of the Act on 04.05.2019. Learned trial court after hearing arguments vide order dated 24.12.2019, framed charges against the petitioner along with other accused for commission of offences under sections 8(c), 20 (b) (ii) (c) and 29 of the Act. The petitioner aggrieved of the framing of charges has preferred the present petition for quashing order dated 24.12.2019 primarily on the ground that the confession of the petitioner is hit by section 25 of the Evidence Act and the same is not legally admissible.