KISHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision has been preferred against the order dated 4.2.94, whereby the learned Special Judge, NDPS Cases (Sessions Judge), Jaisalmer ordered for framing charge against the accused-petitioner for the offence under Section 29 read with Sections 21 and 22, NDPS Act, 1985 (in short, 'the Act').

(2.) BRIEFLY , the relevant facts for disposal of this revision petition are that on receiving a credible information that Charas/heroin will be brought from some area falling within the jurisdiction of Police Station, Sam and that the same will be transported to Jodhpur, the police party laid 'Nakabandi' near village Shipla in the night of 30th July, 1987. At about 11.15 p.m., one Jonga Jeep was sighted, which was coming from a kachcha route. That jeep was stopped, wherein co-accused Tanerav Singh along with some other person was sitting; that Jonga Jeep was driven away towards Jaisalmer. Thereafter at about 11.25 p.m., another Jonga Jeep came through kachcha roule, which did not stop despite the signal given by the police party and crossing fhe harriers, erected by putting smoulders went away with a high speed. The police party chased the said Jonga Jeep and also flashed wireless message to the S.P., Jaisalmer. It is alleged that on the night intervening 30th and 31st July, 1989 at about 12.30 p.m. near village Bhojka, the police party saw three persons alighting from the said Jonga Jeep, who made good their escape under the cover of darkness. However, one of those persons was identified b\ the police party, who was co-accused Kan Singh. A; the same time, the Superintendent, Customs Range, Jaisalmer along with his party also reached there. The said Jonga Jeep was searched, wherein 19 bags having 717 packets containing 754.80 kgms. of Charas were found. Samples of Charas therefrom were taken and those were sealed. The consignment of contraband Charas was also seized and sealed. It is alleged that the accused persons absconded and could not be arrested. It is the case of the prosecution that on 2.5.89, co-accused Kan Singh and on 31.5.89 co-accused Bachaya and Bheru Singh in their respective statements under Section 108, Customs Act, 1962 and under Section 67 of the Act recorded by the Superintendent, Customs, Jaisalmer disclosed that the aforementioned Charas was purchased by co-accused Tan Singh and Allah Bux, the brother of co-accused Bachaya and that the same was to be delivered to petiti6ner Kishan Singh; that on 30.7.87, co-accused Tanerav Singh and Kan Singh along with the petitioner had come in a Jonga Jeep in village Pithla; that from there, they went to village Shipla and that Tanerav Singh had asked co-accused Kan Singh, Bheru Singh and Bachaya to go into the jungle near village Shipla, where 4-5 persons along with 6-7 camels carrying bags containing Charas were waiting for them. They further stated that accused Bheru Singh, Bachaya and Kan Singh went to that jungle and loaded the said consignment of Charas in the said Jonga Jeep and that while they were going to deliver the same to petitioner Kishan Singh, they were intercepted and chased by the police party and ultimately, they filed away from the said Jonga Jeep leaving behind the contraband Charas. Petitioner was arrested by the police as late as on 19.6.90. After investigation, on 25.7.90, the police submitted a charge-sheet against the petitioner and accused Tanerav Singh, Kan Singh, Bheru Singh, Bachaya Khan and Bhike Khan in the Court of learned CJM, Jaisalmer, who committed the case to the learned Special Judge, NDPS Cases, Jaisalmer, who by the impugned order framed the charge under Section 29 read with Sections 21 and 22 of the Act against the petitioner and under Section 8 read with Sections 21 and 22 of the Act against other accused persons. Hence this revision petition.

(3.) MR . Mridul Jain has vehemently asserted that in this case, except the alleged confessions made by the co-accused Bachaya Khan, Kan Singh and Bheru Singh before the Superintendent, Customs, under Section 108, Customs Act and Section 67 of the Act, there is not an iota of evidence, even to prima facie show that petitioner had entered into a criminal conspiracy or abetted the other accused persons to transport the said contraband Charas or that the delivery thereof was to be given to him. Mr. Jain has canvassed that these confessional statements made by co-accused persons cannot be read into evidence against the petitioner. He has, therefore, contended that the learned Special Judge has committed an illegality in framing the charge against the petitioner in absence of any legal evidence.