ORDER

The applicant has filed this petition under Section 482 of Cr.P.C. to set aside the direction issued in para 87 of the impugned judgment dated 25/07/2022 passed in Special Sessions Trial No.28/2016 by Special Judge, (under NDPS Act), Neemuch, whereby the trial Court has directed to implicate / proceed against the applicant Gopal as an accused for the offence under Section 25 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act') being the registered owner and possession holder of the seized Tractor and Trolley bearing registration number MP-44-AA-7854.

2. The brief facts of the case are that on 25/05/2016 police got a discrete information that near the field of Ghanshyam Nagda 2-3 persons had installed a grinding machine in the culvert and grinding poppy straw and were about to transport illegally in a tractor which was to be delivered to a smuggler. Acting upon the said information, the police reached on the spot and arrested two accused persons namely Kamlesh and Balkishan and recovered 1200 Kilograms of poppy straw from their possession with the Tractor Trolley bearing registration number MP-44-AA-7854. Accordingly, police has registered an offence at Crime No.268/2016 under Section 8/15 of the NDPS Act.

3. After completion of the investigation, prosecution has examined as many as 13 witnesses, while the defence has not examined any witness. After completion of the trial, the trial Court has convicted the co-accused Kamlesh and Balkishan for the offence under Section 8/15(C) of the NDPS Act and each of them have been sentenced to undergo 14 years RI with fine of Rs.1,00,000/- with usual default stipulation. Apart from the above, while passing the impugned judgment in para 87, it is also directed that the applicant Gopal is the owner and possession holder of the seized Tractor and Trolley bearing number MP-44- AA7854, therefore, he is liable to be prosecuted under Section 25 of the NDPS Act in accordance with law. Being aggrieved by the said order, the applicant has preferred this petition before this Court.

4. Learned counsel for the applicant submits that the trial Court has committed an error of law by not taking into consideration that no neither the cognizance was taken against the applicant at the time of filing of charge sheet nor provision of Section 319 of Cr.P.C. was invoked at the time of recording of evidence. The aforesaid direction passed by the trial Court suffers from patent illegality. It is ignored that an agreement to sale executed by the applicant in favour of the co-accused Kamlesh was duly proved by witnesses Shishir Kumar (PW-13) and Abdul Hakim (PW-11). There is no evidence available on record to establish the conspiracy of the applicant with the other co-accused persons to use the vehicle for any illegal purpose. Hence, he prays that direction issued in para 87 of the impugned judgment be quashed.

5 . Per contra, learned counsel for the respondent/State opposes the prayer by submitting that on the basis of cogent evidence available on record, the trial Court has rightly issued the aforesaid directions to proceed against the applicant as an accused. Hence, no interference is warranted in the impugned order.

6. Heard learned counsel for both the parties at length and perused the record of the trial Court with due care.

7. It is true that the applicant is not implicated in offence as an accused during the investigation and also by the trial Court at the stage of framing of charges, but Abdul Hakim (PW-11) categorically stated in his statement that Gopal S/o Keshrimal sold out the Tractor Trolley to accused Kamlesh by sale agreement Ex-P/32. Sub Registrar Shishir Kumar (PW-13) only deposed that a stamp of Rs.100/- was purchased by Gopal and entry regarding the sale of said stamp was made in the original register (Ex.-P/65) and it is signed by Gopal, but agreement to sale has not attained finality because before the RTO vehicle was not transferred in the name of co-ac