Srinagar, Aug 20: The High Court of J&K and Ladakh has ruled that a trial court has to form opinion on the basis of an evidence placed on record and cannot merely act as post office and frame charges against an accused.
Quashing a trial court order whereby charges were framed against the accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, bench of Justice Rajnesh Oswal held that the trial court while considering the issue of framing charge or discharge of the accused has to form opinion on the basis of material placed on record by the Investigating Officer.
Underscoring that the trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused, it said: “The trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfills the ingredients of offence or not”.
If the ingredients of any offence, the court said, are lacking then the court has no option but to discharge the accused. The court said at the stage of framing of charges the trial court cannot indulge in critical evaluation of the evidence as can be done at the time of final appreciation of evidence after the conclusion of trial. “But the charge can be framed against the accused even when there is strong suspicion about the commission of offence by the accused,” it said.
The court issued the directions while quashing certain charges framed by the trial court at Jammu against accused drug peddler, Hardeep Singh who was booked under sections 8, 21, 22, 25 and 29 of the NDPS Act.
According to prosecution case, in June 2020 Police registered an FIR under NDPS Act against Hardeep, conductor of a truck along with driver Darwara Ram after it allegedly recovered 143 grams of contraband of heroin from the possession of the former and 257 grams from the possession of latter.
The contraband was recovered from the possession of the duo when they were brought down from their truck by police that was found parked on roadside at bye pass road Jammu.
The chargesheet against the accused was filed in the trial court in Jammu which after hearing the parties vide order dated 23.11.2020 framed charges against them for offences under sections 8, 21, 22, 25 and 29 of the NDPS Act.
In a petition before the High Court through advocate Deepak Mahajan , accused Hardeep Singh sought quashing of the trial court order to the extent of framing charges under sections 25 and 29 of the Act against him in the case.
After hearing the parties, the court pointed out that it was not the case of the prosecution that there was joint possession of the contraband. It seems, the court said, that the trial court framed the charges under section 29 of the Act just because an FIR had been registered under it. “But there is no material on record so as to justify the framing of charge under sec 29 of the Act”.
Pointing out that that recovery had been effected from both the accused individually, the court said: “So in view of the positive finding returned by the learned trial court with regard to lack of any evidence with regard to the conspiracy, the trial court could not have charged the petitioner for commission of offence under section 29 of the Act”.
“This court too has found that there is nothing on record to show that the petitioner along with other co-accused had hatched any conspiracy for commission of offence under the Act,” the Court said and cited a Supreme Court judgment in support of its decision.
With regard to the contention of non-applicability of section 25 of the Act, the Court said: “Section 25 of the Act prescribes that who being either owner or an occupier or having the control for use of any house or conveyance knowingly permits other to use the same for the commission of an offence under the Act, can be punished for commission of offence under the Act”.
In the instant case, Court said, both the accused had committed offence individually as recovery had been effected from both of them in a vehicle. “ So section 25 of the Act has no applicability in the instant case”.
Quashing the trial court order dated 23.11.2020 to the extent of framing of charge under section 29 and 25 of the Act against the petitioner, the court said the trial shall continue for the other offences for which he has been charged.
Allowing his bail plea, the court said it was evident that 143 grams of heroin had been recovered from the petitioner.
“Once this Court has come to the conclusion that section 29 of the Act is not applicable in the case of the petitioner, so rigors of section 37 of the Act shall not apply” court said while granting bail to the petitioner with necessary conditions.