Ghanshyam Prasad, J.

1. This application has been filed to quash the order dated 30.4.2007 passed by IX Addl. Sessions Judge. Muzaffarpur in Trial No. 43 of 2007 thereby the learned Additional Sessions Judge has issued processes against the petitioner under Section 319 Cr.P.C. to face trial alongwith the accused persons.

2. It appears that on 13.2.2004, the personnels of D.R.I. Muzaffarpur a arrested two persons, namely. Somnath and Sarjeet alongwith 220 kgms. of POPPV husk/straw kept in false cavity made in truck bearing No. PB-08L-9396. Accordingly, after enquiry and meeting of other formalities, complaint was filed against both of them under provisions of N.D.P.S. Act. After cognizance, both were put on trial. In course of trial, before charge, the prosecution examined two witnesses, namely. P.W.1, Rajesh Kumar Srivastava and P.W.2. Munarik Ram. Thereafter, the prosecution filed a petition dated 12.9.2006 to add the petitioner as additional accused, being owner of the truck in question. The learned Additional Sessions Judge on the basis of material collected during enquiry i.e. seizure list, confessional statements etc. as well as evidence or the witnesses recorded before charge allowed the petition and made the petitioner as additional accused under Sec. 319 Cr.P.C.

3. Heard the learned Counsel for the petitioner as well as the learned Counsel for the Union of India.

4. It is submitted on behalf of the petitioner that the witnesses examined before the charge have not stated anything against the petitioner. However, the learned Additional Sessions Judge on the basis of the materials collected before filing of the complaint case has added the petitioner as additional accused. Which is illegal and bad in law. It is further submitted that the word "evidence" mentioned in Sec. 319(1) Cr.P.C. is the evidence adduced during trial of the case and not the material collected during the enquiry made before filing of the case. For that the learned Counsel for the petitioner has relied upon a decision of the apex court reported in Ranjeet Singh V/s. State of Punjab, 1998 7 SCC 149.

5. On the other hand, the learned Counsel for the opposite party has contradicted the submission of the learned Counsel for the petitioner and submitted that the word "evidence" mentioned in Sec. 319(1) Cr.P.C. also includes material collected prior to filing of the case. For that he has relied upon a decision in Satish Chand singhal V/s. State of Gujarat and Ors., 2006 0 CrLJ 3854.

6. So far evidence of P.Ws. 1 and 2 is concerned (Annexures 2 & 2/1), there is nothing to show complicity of the petitioner in the allseed crime. Both the witnesses have only proved seizure of the illicit articles from possession of the accused kept in false cavity of the truck in question. They have not named this petitioner. Thus, till today no evidence has been brought on record by prosecution during trial to show complicity of the petitioner in the crime. However, the order in question goes to show that the learned Additional Sessions Judge has made the petitioner as additional accused on the basis of the confessional statement of the accused recorded before filing of the complaint as well as seizure list.

7. The main question for consideration is as to whether a person can be made as additional accused under Sec. 319 Cr.P.C. On the basis of material collected during pre-trial stage. The learned Counsel for the Union of India has relied upon a decision of Guiarat High Court (Supra). In that very decision reliance has been placed upon a decision of the Supreme Court in Rakesh V/s. State of Haryana, AIR 2001 SC 2521.

8. In paragraph -13 of the above decision of the apex court, it has been held as follows:

13. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclud