BHAGWAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision peti­tion is directed against the order dated 11-8-94 passed by learned Addl. Sessions Judge No. 1, Chittorgarh, in Sessions case No. 130/94 by which the learned Judge ordered -to frame the charge against the present petitioner accused Bhagwan Lal for offence punishable under Section 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act').

(2.) LEARNED Counsel Shri Rastogi for the petitioner accused vehemently submitted that against the present accused except the evidence in the form of state­ment of co-accused Kishan Das, from whom the opium was found, there is no other evidence. He submitted that the con­fessional statement of the coaccused can­not be used against the present accused. Thus, it is a case of no evidence. He further submitted that the learned Judge erred in relying upon the fact that the petitioner is a licence-holder for growing opium because in village Polla Kala, along with petitioner accused Bhagwan Lal, many persons have the licence for growing the opium. There­fore, he submitted that in absence of any other positive evidence against the petitioner, the learned Judge ought not to have ordered to frame the charge against the accused under Section 8/29 of the N.D.P.S. Act. In support of his first submis­sion, viz., that confessional statement of the co-accused cannot be relied for the purpose of framing the charge against the present accused, Mr, Rastogi relied upon the Supreme Court judgment in case of Hart Charan Kurmi and On. v. State of Bihar, AIR 1964 SC 1184. He also relied upon the judgments of this Court report in case of Kishan Singh v. Slate, of Rajasthan, 1996(2) JIC 1465 (Raj) and Mohd. Naur and another v. State of Rajasthan, 1995 Cr LR (Raj) 355:1995 (2) JIC 1862 (Raj).

(3.) IN Han Charan Kurmi's case (supra), the accused were convicted by the Courts below for the offences punishable under Section 396 IPC and the matter was carried right upto the Supreme Court. The Apex Court held that "in criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him and so, he is entitled to the benefit of doubt". The case on hand is under the Special Act of N.D.P.S. Act where the Court has not to start with the presumption of innocence but the Court has to presume that the accused is guilt; unless it is proved by the accused as provided under Section 35 of the N.D.P.S. Act that he has not committed any offence and he is not guilty for the offences for which he is charged. Question of giving benefit of doubt would arise only at the end of the trial and not at the stage of framing of charge. Thus, in my opinion, the judg­ment of the Apex Court in Hari Charan Kurmi v case (supra), will not be applicable in this case. Similarly, the judgments of this Court in Kishan Singh's case (supra) and Mohd. Nasir's case (supra), will have no application. In Mohd. Nasir's case (supra), Rajendra Saxena, J. of this Court found that the impugned order of framing charge passed by the learned Judge was cryptic and non-speaking and the learned Judge not considered the contentions raised before him by the petitioner, there­fore, considering the charges framed against the accused for offences punish­able under Section 29 read with Sections 8/15 and 8/25 of the N.D.P.S. Act and on facts of that case, this Court quashed the charge framed against the accused under Sections 8/25 of the N.D.P.S. Act, But, it is pertinent to note that the order of framing charge against the accused for offence punishable under Section 8/29 of the N.D.P.S. Act was maintained and the revision petition was dismissed qua the charge under Section 8/29 of the Act. In Kishan Singh's case (supra), the charge was framed against accused under Sections 21, 22 and 29 of the NDPS Act on the basis of confessional statement of the co-accused. This Court found that neither there was a direct or indirect evidence against the petitioner and no prima facie case was made out, therefore, quashed the charges framed against accused. It was also held that under Section 67 of the NDPS Act the confessional statement made under Sec­tion 67 was admissible in evidence only against person who makes it and not against any other person. About the ap­plicability of Section 29 of the Act, the Court also explained in the judgment. However, the important provisions of the N.D.P.S. Act i.e. Section 35 of the NDPS Act was not at all considered. Be that as it may. The judgments always apply on the facts of each case. In the instant case, there is a confessional statement of the co-ac­cused along with it, the petitioner accused is found to be a licence-holder for growing opium. The submission was that the petitioner was falsely involved in the case by the S.H.O. as along with the petitioner many other persons of village Potla Kala were also having licences for growing opium. 'Whether the accused was falsely involved or not? that question cannot be gone into by this Court at the stage of framing charge. It requires evidence. There were other persons in the village also who had the licences but none other was involved. Therefore, in absence of any contrary evidence, it cannot be held that the S.H.O. has falsely involved the petitioner in this case. The question of sufficiency of evidence can only be con­sidered by the Court at the end of trial and not at the stage of framing charge. On facts, I am fully convinced that there was a sufficient evidence against the accused to frame the charge under Section 8/29 of the N.D.P.S. Act and the learned Judge has rightly framed the charge.