1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 468 of 2021
Order reserved on 03.09.2021
Order delivered on 15.09.2021
ROYDEN HAROLD BUTHELLO, aged about 29 years, R/o – Flat No.
20, Arunodaya CHS Ltd., A Wing, Manipada, Sunder Nagar, Kalina
University, Near Buth Vihar, Kalina Santacruz East, Mumbai -400098
---- Petitioner
Versus
State of Chhattisgarh, Through – Station House Officer, Thana/P.S. -
Kotwali, Raipur (C.G.)
----Respondent
For Petitioner
: Mr. Vimal Patel, Mr. D.M. Galani and
Mr. Neeraj Choubey, Advocates.
For Respondent : Mr. Alok Bakhshi, Additional Advocate
General with Mr. Adil Minhaj, Govt. Adv.
Hon'ble Shri Justice N.K. Chandravanshi
ORDER [C.A.V.]
(1)
Proceedings of the matter have been taken-up through Video
Conferencing.
(2)
This Criminal Revision has been brought challenging the legality, propriety
and correctness of the order dated 14-07-2021 passed by Special Judge (NDPS
Act), Raipur in Special Criminal Case No. 98/20 whereby petitioner's application
filed under Section 227 of the Code of Criminal Procedure, 1973 (henceforth “the
Code”) was dismissed and has framed the charges under Sections 29 read with
Section 22 (b), 22 (c), 25 & 27 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for brevity “the NDPS Act”).
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(3)
Brief facts of the case are that a secret information was received by the
Police of Police Station City Kotwali, Raipur, that accused Shreyansh Jhabak and
Vikash Banchore are standing and waiting for customers to sell cocaine near
Govt. Polytechnic College, Byron Bazar, Raipur. After noting down the
information in the Rojnamcha Sanha; preparing mukhbir panchnama; and
informing the City Superintendent of Police, Assistant Sub Inspector Mohd. Asrar
Ali with Constable Kumar Gaurav Patel & Girdhar Prajapati reached the place of
occurrence and having found the above two accused persons, they were raided
and after making necessary compliance of provisions contained in Section 50 of
the NDPS Act, they were searched, in which, Shreyansh Jhabak was found in
illegal possession of 7 gms. cocaine whereas Vikash Banchore was found in
illegal possession of 10 gms. of cocaine, which were wrapped in polythene sheet
in their trousers' pocket. The seizure memos were prepared and the seized was
weighed in electronic weighing machine. On being interrogation & verification of
their mobile phones and call details, it was found that accused persons are part
of drug cartel/mafia, who are engaged in the illicit trade and trafficking of cocaine
and MDMA [Methylene-dioxy-methamphetamine] throughout the country
including in several districts of the State of Chhattisgarh. FIR of Crime No.
255/2020 was registered under Section 20 (b) of the NDPS Act against the said
accused persons.
(4)
Based on the information received during the course of investigation,
accused – Abhishek Shukla was arrested and from his possession 93.610 gms.
MDMA was recovered. Since total quantity of seized contraband was 110.610
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gms, which is more than the commercial quantity [100 gms], therefore,
investigation further proceeded for the offence under Section 22 (c) instead of
Section 22 (b) of the NDPS Act. During further investigation, it was revealed to the
police that co-accused persons namely Abdul Azim, Mohammad Minhaz, Rohiz
Ahuja, Laxman Gain, Rakesh Arora, Allen Soren, Gaurav Shukla, Ashish Joshi,
Nikita Panchal, Sambhav Parak, Harshdeep Singh Juneja and present petitioner –
Royden Harold Buthello are also involved in illicit trade and trafficking including
sell, transportation and possession as also consumption of cocaine and MDMA. It
was also found that the illicit drugs were brought to Raipur from Mumbai & Goa
and consumed at the drugs party by the accused persons and is also sold to other
intending customers. The police has recorded the statements of witnesses to the
search and seizure operation; disclosure statements of accused persons; and
diary statements of other witnesses i.e. Shiv Mudaliyar, Prakash Harpal, Kewal
Barmeda, Avinash Shukla, Dashmit Chawla, Mayank Agrawal & Har Kiran Kaur.
Statements under Section 164 of the Code have also been recorded of the
witnesses namely Dashmit Chawla & Avinash Shukla. Petitioner had been
arrested by police of Police Station Azad Chowk, Raipur on 21.10.2020 in
connection with Crime No. 232 / 2020, therefore, after taking due permission of
the Court, he was formally arrested on 2.11.2020 in this case. After completion of
investigation, charge sheet was filed by the police against Shreyansh Jhabak & 14
other accused persons including the present petitioner.
(5)
Petitioner had filed an application under Section 227 of the Code before
learned Special Judge (NDPS Act), Raipur for his discharge from the alleged
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offences.
(6)
After affording due opportunity of hearing to both the parties, learned trial
Judge, vide impugned order dated 14.07.2021, dismissed the application filed by
the petitioner holding that prima facie there are sufficient ground for his
involvement in crime in question and thus framed charges against him as
mentioned in opening paragraph of this order. Hence, this revision.
(7)
Learned counsel appearing for the petitioner would submit that while
considering police report to act under Sections 227 & 228 of the Code, the Court
has vast power to peruse the record of the case and documents submitted
therewith to form a judicial opinion to find out that whether there are reasonable
grounds to frame charges against the accused or not, and after hearing
submissions of accused and the prosecution, if judge considers that there is no
sufficient ground for proceeding against the accused, then he shall discharge the
accused. He further submits that while framing charges, the Court is required to
evaluate materials and documents on record to decide whether facts emerging
therefrom taken at their face value would disclose existence of ingredients
constituting the alleged offence. At the same time, accused has right to put his
contentions on materials submitted by prosecution to explain away the materials
giving rise to the grave suspicion. During the course of arguments, learned
counsel for the petitioner would draw attention of this Court mentioning that
there are various contradictions, improbabilities and discrepancies in the
proceedings made by the police in this case. Neither, the petitioner was found in
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possession of any contraband articles nor at his instance, any recovery of any
contraband has been made. There is nothing on record, on the basis of which,
alleged charges have been framed against the petitioner. The petitioner was
arrested on 21.10.2020 by police station – Azad Chowk, Raipur in connection
with Crime No. 232/2020 but till date no evidence was brought in this case
against the petitioner. After his arrest, statements of Dashmit Chawla and
Avinash Shukla were recorded under Section 164 of the Code to falsely
implicate the petitioner with the said crime in this case whereas they have not
stated the name of petitioner in their police statements, therefore, their
statements recorded under Section 164 of the Code have no evidentiary value.
He further submits that if the entire police report & material appended therewith
is accepted as it is, then also petitioner cannot be held guilty for the alleged
offences, despite that learned trial Court without properly appreciating /
considering the materials filed by the police have framed the aforesaid charges
against the petitioner, which is erroneous and unsustainable in law.
(8)
Learned counsels for the petitioner placed reliance upon the judgment of
the Supreme Court in the matter of
M.E. Shivalingamurthy v. Central Bureau
of Investigation, Bengaluru
1
wherein their Lordships of the Supreme Court has
held legal principles applicable in regard to an application seeking discharge, as
below :-
“17. This is an area covered by a large body of case law. We refer to
a recent judgment which has referred to the earlier decisions, viz.,
1
(2020) 2 SCC 768
6
P. Vijayan v. State of Kerala
2
and discern the following principles:
17.1. If two views are possible and one of them gives
rise to suspicion only as distinguished from grave
suspicion, the Trial Judge would be empowered to
discharge the accused.
17.2 The Trial Judge is not a mere Post Office to frame
the charge at the instance of the prosecution.
17.3 The Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for
proceeding. Evidence would consist of the statements
recorded by the Police or the documents produced
before the Court.
17.4 If the evidence, which the Prosecutor proposes to
adduce to prove the guilt of the accused, even if fully
accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, “cannot show
that the accused committed offence, then, there will be
no sufficient ground for proceeding with the trial”.
17.5 It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6 The court has to consider the broad probabilities,
the total effect of the evidence and the documents
produced before the court, any basic infirmities
appearing in the case and so on. This, however, would
not entitle the court to make a roving inquiry into the pros
and cons.
17.7. At the time of framing of the charges, the probative
value of the material on record cannot be gone into, and
the material brought on record by the prosecution, has to
be accepted as true.
17.8. There must exist some materials for entertaining
the strong suspicion which can form the basis for
drawing up a charge and refusing to discharge the
accused.
18. The defence of the accused is not to be looked into at the stage when
the accused seeks to be discharged under
Section 227
of the Cr.PC
2
(2010) 2 SCC 398
7
(see State of J & K v. Sudershan Chakkar
3
). The expression, “the record
of the case”, used in
Section 227
of the Cr.PC, is to be understood as
the documents and the articles, if any, produced by the prosecution. The
Code does not give any right to the accused to produce any document at
the stage of framing of the charge. At the stage of framing of the charge,
the submission of the accused is to be confined to the material produced
by the Police (See
State of Orissa v. Debendra Nath Padhi
4
).
(9) Learned counsels for the petitioner also placed reliance upon the judgment of
the Supreme Court in cases of
Sheoraj Singh Ahlawat & others v. State of Uttar
Pradesh & another
5
& Sajjan Kumar v. Central Bureau of Investigation
6
, in
which, the aforesaid principles are reiterated & followed by the Supreme Court while
considering the case under Sections 227 & 228 of the Code.
(10) Learned counsels for the petitioner would also submit that alleged
contraband is said to be seized from the accused persons namely Shreyansh
Jhabak, Vikas Banchore & Abhishek Shukla but in a proceedings against them,
mandatory provisions under Sections 42 & 50 of the NDPS Act has not been
complied with and there are many improbabilities, contradictions and discrepancies
apparent from the material placed by the police, which shows that documents have
been falsely prepared and fabricated whereas in catena of judgments, Hon'ble
Supreme Court has held that non-compliance of mandatory provisions of Sections
42 & 50 of the NDPS Act will per se amount to prejudice with the accused and he is
entitled to get benefit of non-compliance of mandatory provisions in this regard. He
also placed reliance upon the judgment of the Supreme Court in the matter of
Sarju alias Ram v. State of UP
7
, Kishan Chand v. State of Haryana
8
, Vijaysinh
3
(1995) 4 SCC181
4
(2005) 1 SCC 568
5
(2013) 11 SCC 476
6
(2010) 9 SCC 368
7
(2009) 13 SCC 698
8
(2013) 2 SCC 502
8
Chandubha Jadeja v. State of Gujrat
9
, State of Rajasthan v. Parmanand &
another
10
& Tofan Singh v. State of Tamil Nadu
11
in support of their submissions.
(11) Per contra, learned Counsel appearing for the State/respondent would
submit that this is a case of illicit trade and trafficking including sell, transportation
and possession as also consumption of cocaine and MDMA, in which, all the
accused persons are part of drug cartel/mafia, petitioner is one of them. In the
investigation, it was found that illicit drugs were brought to Raipur from Mumbai &
Goa and consumed at drug parties organized by the accused persons and also
sold to other intending customers. During investigation, mobile call details of
several accused persons were obtained by the police, in which, it was found that
present petitioner was in constant contact of co-accused Shreyansh Jhabak,
Harshdeep Singh Juneja & Ashish Josh. Witness- Harkiran Kaur mentioned the
name of petitioner in her statement as one of person who were frequently visiting
the various drug parties. In this regard, witnesses namely Dashmit Chawla &
Avinash Shukla have also named the petitioner in their statement recorded under
Section 164 of the Code as one of those who regularly consumed drugs at drug
parties. Since the police has filed charge-sheet against the accused persons
including the present petitioner for criminal conspiracy under Section 29 of the
NDPS Act, therefore, all the accused persons being part of bigger drug cartel their
act cannot be examined in isolation, therefore, in this case non-seizure of
contraband from the possession of the petitioner has no worth. Since, the petitioner
had been arrested by the Police of Police Station Azad Chowk, Raipur earlier in
9
(2011) 1 SCC 609
10 (2014) 5 SCC 345
11 (2021) 4 SCC 1
9
connection with Crime No. 232/2020 and he was in custody in that case, therefore,
there is no question arise for the same (seizure) in this case i.e. Crime No.
255/2020. He further submits that proposition of law with regard to framing of
charges is well settled by the Supreme Court in catena of judgments that at the time
of framing of charges, the Court is required only to see whether prima-facie, there is
sufficient ground to proceed against the accused and the court shall frame the
charges and in this regard, it is not required to record detailed reasons. He would
next submit that the grounds raised by the petitioner in the present petition can not
be considered at the stage of framing of charge because those grounds relate to
the stage of trial where sufficient opportunities would be afforded to the petitioner to
defend his case. He would also submit that compliance of mandatory provisions of
the NDPS Act also could not be considered at this stage because meticulous or
probative value of the material on record cannot be gone into. According to him,
there are sufficient material available on record regarding involvement of the
petitioner in commission of alleged offences, therefore, learned trial Court has not
committed any error in rejecting the application under Section 227 of the Code filed
by the petitioner and in framing of aforesaid charges against him. In this regard, he
placed reliance on the judgment of the Supreme Court in case of Kanti Bhadra
Shah and another v. State of W.B.
12
, State of Delhi v. Gyan Devi and others
13
,
Amit Kapoor v. Ramesh Chander and another
14
, Bhawna Bai v. Ghanshyam
and others
15
. He would also refer the case of In re: Chinta Devi & Ors. v. The
12 (2000) 1 SCC 722
13 (2000) 8 SCC 239
14 (2012) 9 SCC 460
15 (2020) 2 SCC 217
10
State
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, in which it has been held by Calcutta High Court that in a petition filed
under Section 482 of the Code, this is not at all the proper stage for deciding that
question of non-compliance or otherwise of the mandatory requirements of the Act
(NDPS Act) in relation to the search & seizure that was effected in the instant case
and even if search & seizure was effected in violation of mandatory requirements of
the Act, the evidence collected pursuant to such search would not be inadmissible
under the Evidence Act.
(12) I have heard learned counsel appearing for the parties and perused the
material available on record including afore-stated judgments cited by counsel for
the parties with utmost circumspection.
(13) Basic law as to whether charge is to be framed or not has been provided in
Section 227 of the Code that if, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of the accused
and the prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and
record his reasons for so doing. But if charge is framed as per provisions contained
in Section 228 of the Code, then recording of reasons for so doing is not required .
(14) In the matter of State of Delhi v. Gyan Devi (Supra), Hon'ble Supreme
Court has held in paragraph 7 that legal position is well settled that at the stage of
framing of charge the trial Court is not to examine and assess in detail the
materials placed on record by the prosecution nor it is for the court to consider the
16 1997 SCC OnLine Cal 32
11
sufficiency of the materials to establish the offence alleged against the accused
persons. At this stage of charge the court is to examine the materials only with a
view to be satisfied that a prima facie case of commission of offence alleged has
been made out against the accused persons.
(15) In the case of M.E. Shivalingamurthy (supra), Hon'ble Supreme Court has
held that while deciding a discharge petition, only materials brought on record by
prosecution (both in form of oral statements and documents) have to considered.
Accused is entitled to discharge if evidence (i.e. statements recorded by police or
documents concerned), which prosecution proposes to adduce to prove the guilt of
accused, even if fully accepted, before it is challenged in cross-examination or
rebutted by defence evidence, cannot show that accused committed the offence. It
is also held that though it is open to accused to explain away the materials giving
rise to grave suspicion, but his submissions must be confined only to materials
produced by the prosecution. Defence of accused cannot be looked into at the
stage of discharge. It is also held that Court must, without making a roving inquiry
into the pros and cons, consider the broad probabilities, the total effect of the
materials before it, any basic infirmities appearing in the case, etc. Probative value
of material on record cannot be gone into. Materials brought on record by
prosecution has to be accepted as true, existence of some material to entertain
strong suspicion is essential to draw up a charge and refuse to discharge
accused.
(16) The afore-stated principles of law have been reiterated and followed by their
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Lordships of Supreme Court in the matter of Sheoraj Singh Ahlawat (supra) &
Sajjan Kumar (Supra).
(17) In the matter of Amit Kapoor
(supra), Hon'ble Supreme Court while
considering the scope of jurisdiction under Section 397 and Section 482 of the Code,
has held as under :-
“27. Having discussed the scope of jurisdiction under these two
provisions, i.e.,
Section 397
and
Section 482
of the Code and the fine
line of jurisdictional distinction, now it will be appropriate for us to enlist
the principles with reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but is inherently impossible
to state with precision such principles. At best and upon objective
analysis of various judgments of this Court, we are able to cull out
some of the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of charge either in
exercise of jurisdiction under
Section 397
or
Section 482
of the Code
or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under
Section 482
of the Code but the more the power, the more due care
and caution is to be exercised in invoking these powers. The power of
quashing criminal proceedings, particularly, the charge framed in
terms of
Section 228
of the Code should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases.
27.2. xxx xxx xxx
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether the
case would end in conviction or not at the stage of framing of charge or
quashing of charge.
27.4. Where the exercise of such power is absolutely essential to
prevent patent miscarriage of justice and for correcting some grave
error that might be committed by the subordinate courts even in such
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cases, the High Court should be loathe to interfere, at the threshold, to
throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the
provisions
of the Code
or any specific law in force to the very initiation
or institution and continuance of such criminal proceedings, such a bar
is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and
the right of the complainant or prosecution to investigate and
prosecute the offender.
27.7. xxx xxx xxx
27.8 xxx xxx xxx
27.9 Another very significant caution that the courts have to observe
is that it cannot examine the facts, evidence and materials on record
to determine whether there is sufficient material on the basis of which
the case would end in a conviction, the Court is concerned primarily
with the allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court leading to
injustice.
27.10 It is neither necessary nor is the court called upon to hold a
full- fledged enquiry or to appreciate evidence collected by the
investigating agencies to find out whether it is a case of acquittal or
conviction.
27.11. xxx xxx xxx
27.12 xxx xxx xxx
27.13. Quashing of a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied, the Court
should be more inclined to permit continuation of prosecution rather
than its quashing at that initial stage. The Court is not expected to
marshal the records with a view to decide admissibility and reliability
of the documents or records but is an opinion formed prima facie.
27.14 xxx xxx xxx
27.15 xxx xxx xxx
(18) A perusal of the principles of law laid down by the Supreme Court in afore-stated
judgments shows that, it is settled law that at the stage of framing of charge the trial
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Court is not to examine meticulously and assess in detail the materials placed on
record by the prosecution nor it is for the court to see probative value of the material or
to consider its sufficiency to establish the offence alleged against the accused persons.
At this stage of charge the court is to examine the materials only with a view to be
satisfied that a prima facie case of commission of offence alleged has been made out
against the accused persons. The accused can only rely on the materials which are
produced by the prosecution at this stage. No doubt grave suspicion or strong
suspicion available on the record could be explained away by the accused but if it is not
properly explained and the judge considers that accused might have committed offence
and there is sufficient ground for proceedings against him, then framing of charges
against the accused is justified.
(19) During the course of arguments, learned counsel for the petitioner would draw
attention of this court mentioning various discrepancies, contradictions and
improbabilities made by the police in respect of timings and other facts but these are
factual aspect of the case, which could be considered and decided after recording of
evidence. At this stage, only on the basis of alleged discrepancies or improbabilities,
neither it can be said that evidence collected by the Police are not reliable nor can be
said that those are inadmissible in evidence under the Evidence Act.
(20) In case of Amit Kapoor (Supra), their Lordships of the Supreme Court has held
that quashing of a charge is an exception to the rule of continuous prosecution and
where the offence is even broadly satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that initial stage. The Court is not
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expected to marshal the records with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima facie. Therefore, alleged
contradictions, irregularities or improbabilities with regard to proceedings made by
investigating agency cannot be taken into consideration at this stage.
(21) So far as non-compliance of mandatory provisions of Sections 42 & 50 of the
NDPS Act is concerned, copy of charge-sheet prima facie shows that mandatory
provision of NDPS Act has been complied with, not only this but compliance of
mandatory provisions of the NDPS Act are the matter of facts because whether it has
been complied with or not as per provisions of the NDPS Act can be considered/decided
only after affording due opportunity of hearing to the parties concerned by adducing
evidence, before that it could not be considered/decided conclusively.
(22) This is a case of illicit trade and trafficking including sell, transportation and
possession as also consumption of cocaine and MDMA in drug parties by fetching
conspiracy by drug cartel from Mumbai & Goa to Raipur. Alleged contraband articles
seized in this case from the possession of accused persons are more than the
commercial quantity i.e. 110.610 gms. Material collected by the Police prima facie
shows involvement of the petitioner – with drug cartel/mafia, who are engaged in the
illicit trade and trafficking of cocaine and MDMA throughout the country including in
several districts of Chhattisgarh State. Thus, I do not find any infirmity or illegality in the
impugned order framing the alleged charges against the petitioner.
(23) As a fallout and consequence of the aforesaid discussion, criminal revision, being
devoid of substance, is liable to be and is hereby dismissed.
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(24) It is made clear that the trial Court shall proceed with the trial in accordance with
law and decide the same without being influenced by any of the observations made by
this Court in this order.
Sd/-
N.K. Chandravanshi
Judge
D/-
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