MUSHTAQ AHMAD WANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is aggrieved of the complaint, titled, Union of India through Narcotics Control Bureau (NCB) vs. Abdul Qayoom Wani and another, as also the order dtd. 3/5/2019 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) by virtue of which the petitioner has been declared as absconder and as such is seeking quashing of the complaint as well as the aforesaid order on the ground that in the complaint filed by the respondent, no role has been attributed to the petitioner vis-a-vis commission of any offence, that could result in framing of charge against the petitioner, more particularly when no incriminating material has been recovered from the possession of the petitioner. It is also stated that the only allegation and evidence relied upon by the prosecution against the petitioner is the alleged confessional statement of petitioner's brother, namely, Abdul Qayoom Wani but the petitioner cannot be prosecuted on the basis of said statement. It is also stated that the plea of discharge on behalf of the petitioner has not found favour with the learned trial court, who has overlooked it and vide order dtd. 3/5/2019 has declared the petitioner as absconder.

(2.) Mr. Rizwan-ul-Zaman, learned counsel for the petitioner vehemently argued that there is no evidence on record so as to warrant the prosecution of the petitioner, particularly when the statement made by the brother of the petitioner cannot be relied upon in terms of the judgment of the Apex Court in Toofan Singh reported in (2021) 4 SCC 1. He further drew the attention of this Court towards the statements of the witnesses, namely, CWs K. P. Tiwari, Superintendent, NCB and B. Bhardwaj recorded during the course of trial. He also placed reliance upon the judgment of this court in case titled "Aejaz Ismail Sayed versus Union of India," decided on 13/8/2021.

(3.) Per contra, Vishal Sharma, learned ASGI vehemently argued that the petitioner has been declared as absconder as despite various efforts made for procuring the attendance of the petitioner during the course of the investigation, he did not participate in the investigation. Mr. Sharma further submitted that the plea raised by the petitioner that the statement of the co-accused recorded under sec. 67 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short the NDPS Ac) cannot be used against the other accused, cannot be considered at this stage, particularly when the petitioner has been declared as absconder and he can appear before the learned trial court and project his grievances there.