HAMIR KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) As directed earlier, the two Investigating Officers Shri Ashok Aanjana and Shri Virendra Meena are present in Court today. Shri Aanjana states that as per his investigation, the Turbo Vehicle No. RJ 19 -1G -9342 had been sold by the present petitioner to the co -accused Moola Ram by an agreement. The agreement was duly verified during investigation. Moola Ram was in control and possession of the vehicle on the date of recovery and that is why, a charge -sheet was filed against him for the offence under Sec. 8/25 of the N.D.P.S. Act. He further states that during the course of trial Moola Ram has procured the interim custody of the vehicle by filing an application under Sec. 457 Cr.P.C. By way of the instant revision petition, the petitioner Hamir Khan has approached this Court being aggrieved of the order dt. 15.12.2015 passed by learned Special Judge, N.D.P.S. Act Cases, Jodhpur in Sessions Case No. 58/2012 whereby, the learned trial Court rejected the application for discharge filed on behalf of the accused petitioner and directed framing of charges against him for the offence under Sec. 8/25 of the N.D.P.S. Act.

(2.) The recovery of contraband poppy straw was effected from Turbo vehicle No. RJ 19 -1G -9342 by Sub Inspector Shri Rugha Ram posted at P.S. Jaitaran on 3.1.2012. Investigation was conducted by the Circle Inspector Shri Ashok Aanjana. He interrogated the present petitioner as being the registered owner of the said vehicle. The petitioner claimed that he had sold the vehicle to Shri Moola Ram long before the recovery. The Investigating Officer collected positive documentary evidence to the effect that the petitioner had as a matter of fact sold the offending vehicle to Moola Ram on 26.5.2010. The vehicle had been originally purchased by the petitioner after taking loan from a finance company. The purchaser Moola Ram deposited the amount due to the finance company through cheques. The Investigating Officer concluded that Moola Ram was in control and possession of the offending vehicle at the time of the seizure. While filing the initial charge -sheet in the Special Court, Moola Ram was arraigned as an accused for the offence under Secs. 8/15 and 25 of the N.D.P.S. Act and the petitioner was cited as a witness for proving the factum of sale of the vehicle to Moola Ram. It appears that while filing the charge -sheet, investigation was shown to be pending against some persons including the present petitioner. Later on, final charge -sheet was filed implicating the petitioner for the offence under Sec. 8/25 of the N.D.P.S. Act.

(3.) Learned counsel for the petitioner submits that the Investigating Officer, while filing the first charge -sheet affirmatively concluded on the basis of oral and documentary evidence that the offending vehicle had been sold by the petitioner to Moola Ram long before the recovery of the contraband and that is why, charge -sheet was filed against Moola Ram for the offence under Sec. 8/25 of the N.D.P.S. Act. Thus, there was no justification for the subsequent charge -sheet arraigning the petitioner as an accused for the same offence. He contends that as a matter of fact, the petitioner is the most vital witness of the prosecution for proving the charge for the offence under Sec. 8/25 of the N.D.P.S. Act against Moola Ram. The trial Court has already framed charges for the offences under Sec. 8/25 read with 8/25 of the N.D.P.S. Act against Moola Ram on 15.6.2013 and thus the petitioner could not have been charged for the offence under Sec. 8/25 of the N.D.P.S. Act because by virtue of such an action, the seller and the purchaser are alleged to be simultaneously in control of the offending vehicle which is an apparent anomaly. He contends that as admittedly the vehicle had been sold by the petitioner to Moola Ram long before the recovery, the order framing charge against the petitioner for the offence under Sec. 8/25 of the N.D.P.S. Act is totally unjust and illegal and deserves to be quashed.