Full Text
HIGH COURT OF DELHI
SHYAM GUPTA & ORS. ..... Petitioners
Through: Mr. S.S. Das, Advocate.
Through: Mr. Utkarsh, APP for the State with Insp. Vivekanand Pathak & SI Manoj
Kumar, Spl. Cell, Crime.
JUDGMENT
1. The present revision petition has been filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „CrPC‟) assailing the order dated 22.10.2018 passed by Shri Jitendra Kumar Mishra, Special Judge (NDPS) North, Rohini Courts, Delhi in SC NO. 59403/16, titled State v. Shyam Gupta etc., whereby the learned Special Judge framed charges for offences under Sections 21, 22 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as „NDPS Act‟) qua petitioner no. 1, Shyam Gupta; under Sections 22 and 29 of the NDPS Act qua petitioner no. 2, Saurabh Kumar Yadav and under Section 29 of the NDPS Act qua petitioner no. 3, Ninu Chaudhary.
2. Briefly stated, the facts relevant for adjudication of the present revision petition are as follows:
(i) On 18.09.2016, the Special Task Force, Crime Brach, Delhi
(hereinafter referred to as „STF‟) received information that one, Shyam Gupta, who is a resident of Bareily, Uttar Pradesh is engaged in supply of heroin, mixed with alprazolam, caffeine and paracetamol and that he is arriving in Delhi to collect a supply of alprazolam.
(ii) On the basis of the said information, a team of STF reached at
Ram Murti Passi Marg, Rohini, Delhi at about 09:25 AM. The secret informer asked the team to stop the vehicle and from inside the vehicle, he pointed out two persons talking with each other as Shyam Gupta and Saurabh Kumar, standing near a black Hyundai Creta car, which was parked at a distance of 25-30 meters away from there. It is further alleged that in the meantime, Saurabh Kumar handed over a black bag to Shyam Gupta and Shyam Gupta handed over one polythene packet to Saurabh Kumar. They were apprehended immediately at about 09:30 AM, who after interrogation disclosed their names as Shyam Gupta and Saurabh Kumar. They were served with a notice under Section 50 of the NDPS Act. The Sub-Inspector (hereinafter referred to as „SI‟) searched Shyam Gupta and recovered one transparent polythene bag from the right-side pocket of his pant containing a brown colored substance, which was tested with a field testing kit and was found to be heroin. Two other polythene bags were recovered containing a white colored powder weighing 5 kg each. The said white colored powder was described by Shyam Gupta as alprazolam.
(iii) During the search, a packet containing Rs. 1,00,000 (Rupees One
Lakh) was recovered from co-accused Saurabh Kumar. No incriminating substance was recovered from the search of the Hyundai Creta car. It is the case of the prosecution that the petitioner no. 1 Shyam Gupta admitted the possession and recovery of 100 gm of heroin and 10 kg alprazolam and coaccused Saurabh Kumar also admitted his involvement.
(iv) It is the case of the prosecution that petitioner no. 1, Shyam
Gupta disclosed that he had collected the recovered alprazolam from petitioner no. 2, Saurabh Kumar, at the instance of one Ms. Ninu Chaudhay and after mixing it with other chemicals, he was preparing heroin which he would then pass on to George, one foreign national. During investigation, he also disclosed details about his apprehension on an earlier occasion.
(v) The respondent has placed on record, a status report dated
13.09.2019, wherein it has been stated that petitioner no. 1, Shyam Gupta disclosed that he used various mobile numbers including 7055268256, 7455081352, 7417723957 & 7458926490 etc. to contact petitioner no. 3, Ninu Chaudhary and get substances from her. He further disclosed that Ninu Chaudhary used various telephone numbers, including 8447415892 and 9205602671.
(vi) It has been further stated that during further interrogation, petitioner no. 2, Saurabh Kumar disclosed that petitioner no. 3, Ninu Chaudhary contacted him on his telephone numbers 9871541449, 9711839923, 9599275745 and 9205602672 from her telephone numbers 8930648891, 83966853299, 8571971440, 9205602671 and 9599300491. It is the case of the prosecution that on 17.09.2016, Ninu Chaudhary contacted Saurabh Kumar stating that petitioner no. 1, Shyam Gupta shall meet him the next day to collect the material, i.e., the 10 kg alprazolam which was recovered when petitioners no. 1 and 2 were apprehended.
(vii) Petitioner no. 3, Ninu Chaudhary was apprehended on
26.09.2016 at the instance of petitioner no. 2, Saurabh Kumar. One black color mobile phone alongwith 2 Airtel SIM cards was recovered from her. During interrogation, she admitted her involvement in the whole transaction and disclosed that she was introduced by petitioner no. 2, Saurabh Kumar to one Prince Aggarwal, who used to supply caffeine, etc. to petitioner no. 1, Shyam Gupta.
(viii) As per the status report, it is the case of the prosecution that the
(ix) Upon completion of investigation, on 25.11.2016, a chargesheet was filed. Petitioner no. 1 was chargesheeted for offences under sections 21, 22 and 29 of the NDPS Act. Petitioner no. 2 was chargesheeted for offences under sections 22 and 29 of the NDPS Act. Petitioner no. 3 was chargesheeted for offence under section 29 of the NDPS Act.
(x) Thereafter, the learned Special Judge passed the impugned order on charge dated 22.10.2018, based on prima-facie evidence on record and framing charges for offences under Sections 21, 22 and 29 of the NDPS Act qua petitioner no. 1, Shyam Gupta; under Sections 22 and 29 of the NDPS Act qua petitioner no. 2, Saurabh Kumar Yadav and under Section 29 of the NDPS Act qua petitioner no. 3, Ninu Chaudhary.
3. At the outset, it is pertinent to record that learned counsel appearing on behalf on behalf of the petitioners submitted that he is not pressing the present revision petition qua petitioner no 1, Shyam Gupta and petitioner no. 2, Saurabh Kumar and sought leave to withdraw the petition qua them. Accordingly, leave was granted and the petition was dismissed as withdrawn qua petitioners no. 1 and 2 vide order of this court dated 20.12.2022. Arguments were heard qua petitioner no. 3, Ninu Chaudhary.
4. Learned counsel appearing on behalf of the petitioner, Ms. Ninu Chaudhary, submits that the learned Special Judge has wrongly framed charge qua her under Section 29 of the NDPS Act, as nothing incriminating was recovered at her instance or from her possession. She was not present at the spot, from where petitioners no. 1 and 2 were apprehended. She was subsequently arrested, only on the basis of a disclosure.
5. Learned counsel appearing on behalf of the petitioner further argues that the disclosures are contrary to each other and not admissible. In support of his contentions, he places reliance on the following judgments:
(i) Haricharan Kurmi v. State of Bpihar, 1964 (2) CRL.J 844.
(ii) Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159.
(iii) Dilbagh Singh v. DRI, 2009 (3) JCC 124.
6. It is further submitted that the only evidence that allegedly connects petitioner no. 3 with the offence is the Call Detail Record, which shows that she was in touch with the other petitioners prior to the date of their apprehension. In that regard learned counsel submits that there is no recorded conversation which indicates that the subject conversations between the petitioners were about dealing in narcotic drugs or psychotropic substances or the present recovery from Shyam Gupta.
7. Per contra, learned APP for the State submits that the contentions raised on behalf of petitioner no. 3 are a matter of defense and cannot be raised at the stage of framing of charge. It is submitted that at the stage of framing of charge, the Court only has to see the chargesheet and the documents annexed with it. It is further urged that at the stage of framing of charge, roving enquiry into pros and cons of the matter and weighing the evidence is not permissible.
8. It is submitted that during interrogation, co-accused, Shyam Gupta, had disclosed that he used several numbers to talk to petitioner no. 3 and further disclosed that the latter was also using several mobile numbers. It is further submitted that during investigation, certified CAP and CDR for mobile numbers of all the accused persons were obtained from concerned service providers and after analysis, it was revealed that all three of them were in touch with each other. It is submitted that all the accused persons were in regular contact on 15.09.2016 and 18.09.2016 (the date of apprehension of accused Shyam Gupta and Saurabh Kumar). It is submitted that this establishes that all the three accused persons were conspiring and abetting in trafficking of the contraband. Learned APP for the State relies upon the following judgments:
(i) Gargi v. State of Haryana, 2019 (9) SCC 738.
(ii) Kehar Singh and Ors. v. The State (Delhi Administration), AIR
(1988) SC 1883.
(iii) Ram Narayan Popli v. CBI, (2003) 3 SCC 641.
9. It is further urged by learned APP for the State that a joint reading of Section 120B of the IPC and Section 10 of the Indian Evidence Act, 1872 shows that the active involvement of a conspirator with the main accused is not necessary, but facilitation with the main accused to commit a crime is sufficient to involve him. In furtherance of the submission, he relies upon the judgment passed by Hon‟ble Supreme Court of India in Gopinath v. State of UP, (2001) 6 SCC 620. It is submitted that the evidence to prove a criminal conspiracy can be by way of circumstances which may be inferred by the conduct of the accused persons.
10. Heard the learned counsel for the parties and perused the records.
11. The learned Special Judge has framed charges against petitioner no. 3 for the offence under Section 29 of the NDPS Act by giving following reasons:-
12. From the above observations, it is apparent that the learned Special Judge had proceeded to frame charge qua petitioner no. 3 on the basis of CDR, which reflected that all the three accused persons were in regular contact on 15.09.2016 and 18.09.2016 (the date of apprehension of accused Shyam Gupta and Saurabh Kumar).
13. Admittedly, there is no conversation recorded with respect to the aforesaid calls. A perusal of the chargesheet would reflect that the reliance on the CDR is being placed in the background of the disclosure statement made by the co-accused, Shyam Gupta and Saurabh Kumar, as well as the disclosure given by the petitioner no. 3. Needless to state, that these disclosure statements are inadmissible in nature.
14. The Hon'ble Supreme Court, in Dilawar Balu Khurane v. State of Maharashtra, (2002) 2 SCC 135 has observed that while framing charges, the Judge has the power to ascertain whether the materials on record disclose 'grave suspicion' against the accused, which has not been explained. It has been held as under: "12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4: 1979 SCC (Cri) 609])."
15. Applying the aforesaid principle to the facts of the present case, it is clear that the only evidence against petitioner no. 3 is the CDR, which may create a suspicion but not a grave suspicion. If one examines the CDR sans disclosure statement then there is nothing on record to link the said calls to the recovery in question. There is no other material placed on record by the prosecution in the chargesheet to support the allegations qua the present petitioner with respect to her involvement with the contraband allegedly recovered from the co-accused persons. No recovery was effected from the petitioner no. 3 or at her instance.
16. In view of the above, this Court is of the opinion that the impugned order on charge and order framing charge against petitioner no. 3 be set aside. Petitioner no. 3 stands discharged in FIR No. 160/2016, for offence under Section 29 of the NDPS Act, registered at P.S. Crime Branch. However, it is made clear that the prosecution will continue qua Shyam Gupta and Saurabh Kumar Yadav.
17. The petition is partly allowed and disposed of accordingly. Pending application(s), if any, also stand disposed of.
18. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA JUDGE