MAHAVIR PRASAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These miscellaneous petitions filed under section 482 Cr. P.c. have bcen preferred against the order dated 18.1.1995 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar, whereby he allowed the application dt. 29.10.1994 submitted by the Publie Prosecutor u/s. 193/190 Cr. P.C. in Special Criminal Case No. 4/94 and took cognizance for the offence punishable u/s. 29 of the N.D.P.S. Act (in short, the Act) against the petitioners.

(2.) Since both these petitions arise out of the same order, those are being disposed-off by this common order.

(3.) Now a brief resume of the case. It appears that on 12.11.1993 at 12.30 PM, Shri Jagdish Singh, S.I., Incharge, P.S., Sadul Shahar, received a source information that one Maruti Car No. CHB 6112, on which Balwantram Bajigar was the driver and wherein five gunny bags of illicit poppy husk were stored, was lying in a depression behind the Govt. Secondary School and that near the said car, there was no person. Jagdish Singh recorded the said source information under the Act and alongwith motbirs Swaroop Singh and Bahadur and police party proceeded to the said place and found abandoned Maruti Car bearing No. CHB 6112. Five gunny bags, stored in the said car, were taken out and weighed. Those gunny bags contained poppy husk, which weighed 192.500 kgms. From the said car, a driving licence of co-accused Balwant Ram and Registration Certificate of the car in the name of petitioner Mahavir Prasad, which was valid upto the year 1994, were also found. Samples of poppy husk from the gunny bags were taken and sealed. On the report of Jagdish Singh, the SHO, PS, Sadul Shahar, registered a case against Balwant Ram, Car driver and conducted the investigation. Petitioner Mahavir Prasad in his police statement dt. 16.11.1993 admitted that the registration of the said car was in his name but stated that he had sold the said car on 10.6.1993 to petitioner Madanlal for consideration and for that, he had also got his affidavit dated 10.6.1993 attested on a non-judicial stamp of Rs. 50/- He also submitted the photostat copy of the said affidavit, which he had filed before the District Transport Officer for transferring the said vehicle in favour of Madanlal. Thereupon, the 1.0. sent a letter on 16.11.1993 u/s. 67 of the Act to petitioner Madanlal to inform as to whether he was the owner of the said car and that on 12.11.1993, who was the driver of the said car and as to where the driver had taken the said vehicle. On 16.11.1993, petitioner Madanlal informed the 1.0. in writing that he had purchased the car No. CHB 6112 from Mahavir Prasad on 10.6.1993; that the documents thereof have still not been transferred in his favour; that he appointed Balwant Ram as his driver about six months back and that on 12.11.1993, Balwant Ram was the driver of the said car, who had taken away the said car on 10.11.1993 and did not return; He also mentioned that later on he had come to know that Balwant Ram was arrested alongwith the said car. The 1.0. also recorded the statement of Madanlal u/s. 161 on 16.11.1993, wherein he specifically admitted the aforementioned facts. A after completion of the investigation on 5.1.1994, the police submitted the challan for the offence u/s. 8/15 of the Act against Balwant Ram, car driver, in the court of learned Special Judge, NDPS Act Cases, Sri Ganganagar. Who took cognizance for the said offence. The learned trial Judge upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of accused Balwant Ram and the prosecution, framed charge for the offence under section 8/15 of the Act against him, who denied the indictment. Thereafter, the case was fixed for recording the prosecution evidence on many occasions. On 29.10.1994, motbir Bahadur Ram, PW 1, was examined, who was declared hostile as he did not support the prosecution case. On the same day, the Public Prosecutor submitted an application u/s. 193/190 Cr PC alleging that the Registration Certificate of the said car was in the name of petitioner Mahavir Prasad, who had already taken the said car on Supardgi Nama and that from the evidence on record, prima facie offences under ss. 25,29 nw. 8/15 of the Act were made out against petitioners Mahavir Prasad and Madanlal and, as such, cognizance against them be also taken. The learned Special Judge by his impugned order, allowed the said application and took cognizance u/s. 29 of the Act against petitioners and also directed to issue warrants for their arrest. Hence these petitions.