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2008 Supreme(Bom) 13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
K.J. ROHEE, J.
Superintendent Central Excise — PETITIONER
Versus
Shri Suresh Mulchand Seth @ Jain — Respondent
CRIMINAL REVISION APPLICATION NO.51 OF 2003
Decided on : JANUARY 9, 2008
Shri S.G. Loney, Advocate for the Petitioner. Shri V. M. Manohar, Senior Advocate with S/Shri A.K. Chauhan, J.B. Kasat and A.S.Manohar, Advocates for the Accused.
Headnote:Criminal Procedure Code, 1973 - Section 227-Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 21, 22, 23, 25, 26, 27-A and 29-Discharge of accused-Observations made by High Court while deciding bail application-Trial Court not to be influenced by such observations while considering application for discharge- However if it finds itself in full agreement with observations of High Court then discharge of accused under Section 227 of Code justified.-On merits it was submitted that while deciding the application for bail of the accused the Judge of the Court observed that besides the confessional statements of accused No. 8 and accused No. 9 which cannot be used against the accused as they are hit by Section 30 of the Evidence Act he does not find any evidence circumstantial or otherwise which can connect the accused with the crime. ’M’ pointed out that these observations were recorded by the Judge after filing of the complaint and that they still hold good. ’L’, however urged that the Court should not be influenced with the observations of the Judge, which were made while deciding the application for bail. True it is, but after going through the complaint find myself in full agreement with the observations made by the Judge in his order deciding the application for bail of the accused. Thus Court is of the considered view that the trial Court was perfectly justified in discharging the accused under Section 227 of the Cr PC and no interference is called for in the impugned judgment.
Criminal Procedure Code, 1973 - Sections 482 and 227-Narcotic Drugs and Psychotropic Substances Act, 1985, Section 22-B(C), 21, 23, 25, 26 and 27-Evidence Act, 1872, Sections 10 and 30-Discharge of accused under Section 227-No interference called for.-In the present case the confessional statements of accused No. 8 and accused No. 9 would not be relevant so as to book the accused. In the trials against accused No. 8 and accused No. 9 it has been held that their confessional statements are hit by Section 30 of the Indian Evidence Act. As such the complainant would not able to rely on them as evidence against the accused. Thus it is a case of no evidence against the accused.
The trial Court was perfectly justified in discharging the accused under Section 227 of the Cr PC and no interference is called for in the impugned judgment.
1. The petitioner has preferred this revision under Section 397 read with Section 482 of the Code of Criminal Procedure challenging the order dated 30.11.2002 passed by the Additional Sessions Judge, Akola in Sessions Trial No. 170/2001 discharging the accused.
2. It seems that the Deputy Commissioner, Central Excise, Amravati Division, Amravati, filed a complaint against the accused alleging charges under Sections 29 r/w B(c) and 22 of the N.D.P.S., 1985; Section 22 r/w B(c) of the N.D.P.S. Act, 1985 and Sections 21,23,25,26 and 27-A r/w 29 of the N.D.P.S. Act, 1985. According to the complainant, it was the accused who provided funds and material for manufacturing mandrax tablets at Amravati and Akola. In the search conducted on 23/24th November, 1995 at Amravati and 24th November, 1995 at Akola, raw materials for manufacturing mandrax tablets, machineries, mandrax tablets and cash of lakhs of rupees was recovered. Two charge sheets were filed against 10 accused persons. Accused Nos. 1 to 6 were convicted and the rest were acquitted. In appeals the High Court confirmed the conviction as well as acquittal. It is not disputed that no further appeal was filed before the Apex Court and the decision of the High Court became final.
3. On the basis of confessional statements of accused No.8 Kantilal and accused No.9 Kasam, the accused was arrested on 24.5.2001. Complaint was filed against him on th August,2001. He was released on bail by the order of this Court on 8th September,2001 reported in 2002 ALL MR (Cri) 72 ( Sureshkumar Moolchand Seth @ Jain .vs. Director of Revenue Intelligence).
4. On 7.11.2001 the accused moved an application for discharge under Section 227 of the Cr.P.C. The said application was resisted by the complainant by reply dated 19.12.2001. After hearing the learned counsel for the parties, the trial Court allowed the application and discharged the accused under Section 227 of the Cr.P.C. by order dated 30.11.2002. It has been observed in para 14 of the impugned order that the retracted confessional statements of accused no.8 Kantilal and accused No.9 Kasam are hit by Section 30 of the Indian Evidence Act and if they are excluded what remains is only exculpatory retracted confessional statement of the accused which is not corroborated in material particulars .
Thus prima facie there is no material to frame charge against the accused. The said order is under challenge.
5. I have heard Shri S.G. Loney, Advocate for the petitioner and Shri V.R. Manohar, Senior Advocate for the accused.
6. At the out set Shri Loney made submission about the scope of Section 227 of the Cr.P.C. In this respect he relied on Smt. Om Wati and another .vs. State through Delhi Administration and others – AIR 2001 Supreme Court 1507 in which it is held as under:-
“8. At the stage of passing the order in terms of S. 227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of S. 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. This Court in Stree Atyachar Virodhi Parishad .vs. Dilip Nathumal Chordia (1989) 1 SCC 715 cautioned the High Courts to be loathe in interfering at the stage of framing the charges against the accused. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. The opinion
