The present Criminal Revision Case is filed by the revision petitioners/A-6 to A-8 under Sections 397 read with 401 Cr.P.C., questioning the order, dated 10.10.2019, passed in Crl.M.P.No.907 of 2019 in S.C.No.25 of 2014 on the file of the Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District at L.B. Nagar, wherein and whereunder the application for discharge filed by the revision petitioners/A-6 to A-8 was dismissed.
The respondent herein filed a complaint under the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S. Act”) against A-1 to A-8. The gist of the complaint is that A-1 to A-5 are involved in the criminal conspiracy of illicit possession, procuring, transport, sale, storage, acquisition, financing and trading of Ephedrine and its salts, a controlled substance under N.D.P.S. Act, in large quantity, without bills, in contravention of the provisions of Section 9 (A) of the N.D.P.S. Act and rendered themselves liable for punishment under Sections 25, 25-A, 28 and 29 of the N.D.P.S. Act. A-6 is the Company, A-7 and A-8 are incharge and responsible for all day-to-day affairs of A-6 Company and having knowledge, intentionally in order to facilitate the other accused, deliberately failed to exercise their due diligence in dealing with Ephedrine and its salts, which resulted in commission of the above said offence by A-1 to A-5 and their deliberate act of negligence is attributable to them. The said complaint was taken on file as S.C.No.25 of 2014. During pendency of the S.C., the revision petitioners/A-6 to A-8 filed discharge application under Section 227 of Cr.P.C. By an order, dated 10.10.2019, the learned Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District at L.B. Nagar, dismissed the said application. Challenging the same, the present Criminal Revision Case is filed.
Heard learned Counsel for the revision petitioners/A-6 to A8, learned Special Public Prosecutor for D.R.I. appearing for the respondent and perused the record.
Learned Counsel appearing for the revision petitioners/A-6 to A-8 would submit that the learned trial Judge passed a cryptic Order without considering the grounds raised by the revision petitioners/A-6 to A-8 which set out that there is no prima facie case against them and nearly acted as a post office or a mouth piece of the prosecution and mechanically held that there is prima facie case against the revision petitioners with regard to the alleged conspiracy and abetment. It is also stated that the learned trial Judge ought to have seen that in order to prove the abetment and conspiracy, it has to be shown that the revision petitioners/A-6 to A-8 actively abated for procuring and transporting the contraband from the premises of A-6 to A-1 to A-3 and that at any time A-6 has received any monetary benefits from A-1 to A-5. On the other hand, statements of L.Ws. 26 to 29, show that the revision petitioners/A-6 to A-8 are innocent and victims of theft of their own material by A-4, but the learned trial Judge failed to see that the revision petitioners/A-6 to A-8 are the victims for the loss of property and also failed to see that there is no seizure from the revision petitioners/A-6 to A-8.
It is further submitted by the learned Counsel for the revision petitioners that the learned trial Judge ought to have seen that if the entire material on record is considered, there is no sufficient ground to proceed against the revision petitioners/A-6 to A-8 and as per the complaint no offence is made out against them. As per paragraph No.16.4 of the complaint, A-4, who was working as Security Officer in the factory of A-6 and A-7, has played a prime role in the criminal conspiracy of procuring and selling of Ephedrine. Primarily A-4 was assigned with the task of maintaining the security of the property and materials stored therein. A-4 in greed of money, striked a deal with A-3 for supply of 100 Kgs. of Ephedrine for a monetary consideration. A-4 has illicitly removed 100 Kgs. of Ephedrine stored in the factory of A-6, misusing his capacity as Assistant Security Officer and secured the contraband at his residential premises for further delivery to A-3. On 26.12.2011 on confirmation from A-4, A-3 along with A-2 arrived at the residential premises of A-4 and paid Rs.10.00 lakhs by A-3 for the contraband. A-4 went absconding after the officers of D.R.I. have intercepted A-2 and A-3 with 96.85 Kgs. of Ephedrine near his residential premises on 26.12.2011. The learned trial Judge ought to have seen that A-1 to A-5 were apprehended and as per their purported statements recorded under Section 67 of the N.D.P.S. Act, A-4, who was working as Security Officer with A-6 company, illicitly procured Ephedrine which was stored in factory premises of A-6 and that A-4 was paid an amount of Rs.10,00,000/- by A-3 and that A-2 and A-3 were intercepted by the D.R.I. Officers and Ephedrine was seized weighing 96.85 Kgs., on 26.11.2011. The learned trial Judge ought to have seen that according to the complainant, procuring of the controlled substance from the premises of A-6 by A-4 is corroborated by the purported statements of S.Suryanarayana Raju (L.W.26), Y.Satyanarayana Raju (L.W.27) and Srinivasulu @ Srinivas Mudiraj (L.W.28). The learned trial Judge ought to have appreciated the purported statements of the revision petitioners/A-7 and A-8 that they used to manufacture Ephedrine and Pseudo Ephedrine on loan license basis on behalf of M/s. Liquor India Limited under an agreement, dated 22.01.1999 and that the said agreement is extended by mutual consent as per the statement of A-7 dated 11.01.2012 on being asked about shortage of d-ephedrine which was noticed and recorded in panchanama, dated 27.12.2011 at the premises of A-6. Further, the internal enquiries revealed that K.Srihari Raju (A-4), who is working as Assistant Security Officer and staying in the apartment adjacent to the factory premises, has been stealing the controlled substance namely d-ephedrine from a long time and that A-4 was not turned up from 26.12.2011 onwards. Thereafter, complaint dated 15.01.2012 was lodged against A-4 for removing 403 kgs. of d-ephedrine HCL stealthily and the same was acknowledged by the D.C.P. of Cyberabad on 17.01.2012. It is also submitted that the learned trial Judge failed to consider the statement of the Manager of A-6 company, who lookafter the Central Excise and State Excise matters of the company and also failed to consider the panchanama dated 26.12.2011 for recovery of contraband from A-2 and A-3 on the road at M/s. Sri Bhavani Daram Kaanta Phase III I.D.A., Jeedimentla, the purported statements of A-1 to A-5, statements of L.Ws.26 to 29 and 32 and also other statements. It is also submitted that the material on record shows that the revision petitioners/A-6 to A-8 are the victims for the loss of property and that at no time they abated any offence conspired with anyone and their premises was used knowingly by them for the subject of theft. In support of his contentions, learned Counsel for the revision petitioners/A-6 to A-8 relied on the judgments of the Apex Court in State of Karnataka v. L.Muniswamy and others (1977) 2 SCC 699)and in Union of India v. Prafulla Kumar Samal and another (1979) 3 SCC 4).
Reiterating the contents made in the counter, learned Special Public Prosecutor appearing for the respondent would submit that there is ample evidence against the revision petitioners/A-6 to A-8 to show their involvement in the commission of offence and as such they are not entitled for discharge. In support of his contentions, he relied on the judgments of the Apex Court in Ratilal Bhanji Mithani v. The State of Maharashtra and others (1979 IT 94)and in Bharat Parikh v. C.B.I. and another (2008) 10 SCC 109).
While considering an application for discharge under Section 227 of Cr.P.C., the Court is required to consider the “record of the case” to form an opinion whether there is a ground for presumption and strong suspicion that the accused has committed an offence. After considering the material, if the trial Court is of the opinion that there is strong suspicion of involvement of the accused in commission of the offence, the accused cannot be discharged. At the stage of Section 227 of Cr.P.C., the Court is only required to see that the material on record and the facts of the case are enough to raise grave suspicion that the accused has committed the offence.
The Apex Court in its judgment in the case of Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460)has explained the scope of the power under Section 397 Cr.P.C. as under:-
“20. The Jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial Court or the inferior Court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any Court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a Court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.”
In Union of India v. Prafulla Kumar Samal and another (2 supra) the Apex Court held as under:
“In exercising the jurisdiction under Section 227, the Special Judge, which under the present Code is a senior and experienced Court cannot act merely as a post office or 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, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. While considering the question of framing charges under this Section, he 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.
The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. 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 an large however, 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 within his right to discharge the accused.”
In State of Karnataka v. L.Muniswamy and others (1 supra) the Apex Court held as under:
“It is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. The order framing a charge affects a person’s liberty substantial
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ly and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial.” In the instant case, a perusal of the material on record would show that none of the witnesses have stated anything against the revision petitioners/A-6 to A-8. There is also nothing on record that the revision petitioners/A-7 and A-8 10 along with A-6 company are responsible for the theft of contraband. The trial Court, without proper appreciation of material available on record, has mechanically passed the order, which is per se illegal. That apart, the material on record further shows that the revision petitioners/A-6 to A-8 are the victims for the loss of property. Further, the judgments relied upon by the respondent are not relevant since the facts in those cases and the facts in the case on hand are different. For the aforesaid reasons and in view of the principles of law laid down by the Apex Court in the judgments supra, this Court is of the view that the order passed by the trial Court warrants interference of this Court. Accordingly, the Criminal Revision Case is allowed. Miscellaneous petitions, if any, pending shall stand closed.