KHALID Vs. STATE

JUDGEMENT

(1.) THIS is a petition by Khalid alias Rasheed under section 482 of the Code of Criminal Procedure for quashing the order of Sessions Judge, Bikaner dated January 18, 1989 passed in Sessions case No. 1 of 1989 (State Vs. Major Singh) whereby he directed framing of charge of criminal conspiracy under section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to commit an offence under Chapter IV of the said Act.

(2.) FACTS in brief are that according to the prosecution Malluram Assistant Sub Inspector gave an information on September 20, 1988 regarding some tracks of camel and two persons having been found near Indo Pak international border. On the evening of that day the Station House Officer, Poongal reached Chak 4 Pawli and found tracks going upto that place. This created suspicion in his mind that the camel and the two persons were in the same Abadi. The S. H. O. and the Police party therefore, surrounded this Chak and on the morning of September 21, 1988, they further found tracks in the fields of nursery peaching towards a Kotha on the agricultural land of Nichhatarsingh. The S. H. O, found that a blue jeep was standing there and eight persons were loading some bags in the jeep. The S. H. O divided the Police party into two parts and reached near the place. The police people knew from before Nishan singh and Gami alias Gurnamsingh. They and one more person who were loading the bags, seeing the police, ran away, from the spot and could not be apprehended. Five persons were caught hold of by the police party and they were Majorsingh, Gurnamsingh alias Baldeosingh, the jeep driver Kundanlal, Nichhatarsingh and Balvinder singh. Two bags were lying inside the jeep and two other bags were lying near the jeep. In all 311 packets were found. The packets were opened and smelt. It was found to be brown coloured powder and Majorsingh also told that the third person who ran away was Balkarsingh. These 311 packets were weighed and samples were taken. The above named five persons were arrested. At the time of search of Majorsingh, a diary was found in his possession in which address of khalid and the petitioner was found written. Majorsingh was taken to the house of Superintendent of Police. Bikaner by Hanumandutt Circle Officer, Bikaner. The Superintendent of Police had talks with Majorsingh. Then Majorsingh dialed the petitioner who was staying in Minerva Hotel Bombay by phone No. 393911. After the phone was connected at the hotel, Major Singh told the Manager of the hottel to connect him with the petitioner who was staying in room No. 8 of the hotel. The Manager of the hotel called the petitioner and Majorsingh talked with him on phone. Majorsingh told him on phone about his welfare and further told that the goods had arrived and he himself would be reaching within 2 or 3 days. From the side of the petitioner welfare of Majorsingh was asked and the latter was asked to reach early. It also appears that a VIP attache was also seized from Maruti Car No. DCB 6496. On this attache, name of Major Singhwas written. Apart from some clothes a letter written in Urdu on lined paper was also found in the attache. The contents of that letter show that it was written by one Jamshed to Khalid. In this letter Jamshed had referred to his talks with Khalid on phone. He also wrote that Majorsingh agent of Khalid had met the man of Jamshed named Shareef. It was also mentioned that 311 packets of the goods had reached the house of Jogendersingh at Pawli which was a decided place on the night intervening 19th and 20th. Then it was written that Shareef and Garni will deliver this goods to Rayees at Minerva Hotel Bombay. When they reached Bombay with the goods, it was the responsibility of Rayees to settle* the accounts. These are only three pieces of evidence on the basis of which challan was filed by the police against the petitioner Khalid alias Rasheed alias Rayees. On the basis of the documents filed along with the challan. , the Sessions Judge, Bikaner framed a charge of criminal conspiracy under section 29 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 for the commission of offence under Chapter IV of the said Act against the petitioner which the petitioner is seeking to get quashed by the present petition under section 482 Cr. P. C.

(3.) GENERALLY, a conspiracy is hatched in secrecy and it may be difficult to aduce direct evidence of the same. The prosecution often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must inquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them co-conspirators but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be.