RAJU SAINI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant revision petition is preferred by petitioner aggrieved from order of charge dtd. 5/1/2023 in Sessions Case No. 12/2022 arising out of FIR No. 86/2021 registered at P.S. Viratnagar, Jaipur Rural whereby learned Additional Sessions Judge No.1, Shahpura, Jaipur had framed charge under Sec. 8/29 of NDPS Act against petitioner.

(2.) The fact of the matter is that upon receiving information regarding transition of certain contraband goods, SHO Virat Nagar had recorded it in writing under Sec. 42 of NDPS Act and sent it to the Superintendent of Police, Jaipur Rural, thereafter on interception on 9/4/2021 around 7.30 P.M. two persons namely Rampal Gurjar and Hitesh Kirad were found travelling with unidentified item in plastic bag kept in carton. Thereafter, effecting recovery and seizure as per provisions, a total of 4.230 Kg of 'Ganja' was recovered from two packets. After completing the formalities, case was registered and during investigation, mobile call details were obtained whereby it was found that both Rampal Gurjar and Hitesh Kirad were involved with present petitioner. After confirming the involvement of present petitioner, he was arrested and ultimately charged under Sec. 8/29 of NPDS Act.

(3.) Learned counsel for petitioner while relying upon judgment of Hon'ble Supreme Court in case of Tofan Singh versus State of Tamil Nadu (2021) 4 SCC 1, Sanjeev Chandra Agarwal and Anr. Vs. Union of India (Criminal Appeal No. 1273/2021) submitted that learned trial court while framing charge under Sec. 8/29 of NDPS Act, clearly ignored the law point that statement recorded under Sec. 67 of NDPS Act cannot be read against petitioner. He further submitted that learned trial Court had relied upon the statement and information given by coaccused to implicate the present petitioner but such information or statement is not admissible in the eye of law against present petitioner. He further submitted that police had recorded information given by Rampal Gurjar and Hitesh Kirad under Sec. 27 of Indian Evidence Act but nowhere, information about present petitioner was given to police. He further submitted that site plan which was prepared after verification at the instance of Rampal Gurjar and Hitesh Kirad had not named the present petitioner. He further submitted that first time, it was interrogation note of Rampal Gurjar recorded by police wherein the name of present petitioner was mentioned but this interrogation note is itself inadmissible as evidence against the present petitioner. He further submitted that after arrest of present petitioner he was also interrogated and a confessional statement in the police custody was recorded, which is hit by Ss. 25 and 26 of Indian Evidence Act, thus inadmissible in view of principle of law laid down by Hon'ble Supreme Court in case of Tofan Singh (supra). He further submitted that learned trial Court had referred call details to support the reasons of charge but no such call details were made available to present petitioner. He further submitted that the record and investigation clearly indicated that no mobile handset was seized from petitioner and no record of ownership of SIM card was produced by Investigating Officer. He further submitted that call details are thoroughly unverified, without obtaining certificate under Sec. 65B of Indian Evidence Act from concerned service provider, rather a certificate from Police Constable working in police station was obtained which is not permissible. It is further submitted that no document to indicate and implicate present petitioner on the basis of so called mobile conversation was proved for framing of charge. He further submitted that no document was produced to prove ownership of mobile to the Court. He further submitted that without any basis or grave suspicion, learned trial Court had proceeded to frame charge on assumption and presumption which is impermissible under the law. He further relied upon judgment dtd. 24/4/2019 in S.B. Criminal Revision Petition No. 2209/2018 titled as Saurabh Agarwal Vs. State of Rajasthan whereby this Hon'ble Court had discharged Saurabh Agarwal of conspiracy prior to or after recovery of Saurabh Agarwal. At the end, he submitted that learned trial Court had failed to consider material available on record and if same was considered then no charge is made out against petitioner.