[2023/RJJP/010029]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Revision Petition No. 173/2023

Raju Saini @ Rajkumar @ Rajendra Saini S/o Shri Suwalal Saini,

Aged About 44 Years, Resident Of Near Ganesh Mandir Virat

Nagar, Police Station Virat Nagar, District Jaipur (Raj)

----Petitioner

Versus

State Of Rajasthan, Through P.p

----Respondent

For Petitioner(s)

:

Mr. Gaurav Gupta

For Respondent(s)

:

Mr. S.S. Mahla, PP

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

Date of Reserve:-

02/05/2023

Date of Pronouncement:-

09/05/2023

The instant revision petition is preferred by petitioner

aggrieved from order of charge dated 05.01.2023 in Sessions

Case No. 12/2022 arising out of FIR No. 86/2021 registered at

P.S. Viratnagar, Jaipur Rural whereby learned Additional Sessions

Judge No.1, Shahpura, Jaipur had framed charge under Section

8/29 of NDPS Act against petitioner.

The fact of the matter is that upon receiving information

regarding transition of certain contraband goods, SHO Virat Nagar

had recorded it in writing under Section 42 of NDPS Act and sent it

to the Superintendent of Police, Jaipur Rural, thereafter on

interception on 09.04.2021 around 7.30 P.M. two persons namely

Rampal Gurjar and Hitesh Kirad were found travelling with

unidentified item in plastic bag kept in carton. Thereafter, effecting

recovery and seizure as per provisions, a total of 4.230 Kg of

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'Ganja' was recovered from two packets. After completing the

formalities, case was registered and during investigation, mobile

call details were obtained whereby it was found that both Rampal

Gurjar and Hitesh Kirad were involved with present petitioner.

After confirming the involvement of present petitioner, he was

arrested and ultimately charged under Section 8/29 of NPDS Act.

Learned counsel for petitioner while relying upon judgment

of Hon'ble Supreme Court in case of Tofan Singh versus State

of Tamil Nadu (2021) 4 SCC 1, Sanjeev Chandra Agarwal &

Anr. Vs. Union of India (Criminal Appeal No. 1273/2021)

submitted that learned trial court while framing charge under

Section 8/29 of NDPS Act, clearly ignored the law point that

statement recorded under Section 67 of NDPS Act cannot be read

against petitioner. He further submitted that learned trial Court

had relied upon the statement and information given by co-

accused to implicate the present petitioner but such information or

statement is not admissible in the eye of law against present

petitioner. He further submitted that police had recorded

information given by Rampal Gurjar and Hitesh Kirad under

Section 27 of Indian Evidence Act but nowhere, information about

present petitioner was given to police. He further submitted that

site plan which was prepared after verification at the instance of

Rampal Gurjar and Hitesh Kirad had not named the present

petitioner. He further submitted that first time, it was interrogation

note of Rampal Gurjar recorded by police wherein the name of

present petitioner was mentioned but this interrogation note is

itself inadmissible as evidence against the present petitioner. He

further submitted that after arrest of present petitioner he was

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also interrogated and a confessional statement in the police

custody was recorded, which is hit by Sections 25 and 26 of Indian

Evidence Act, thus inadmissible in view of principle of law laid

down by Hon'ble Supreme Court in case of Tofan Singh (supra).

He further submitted that learned trial Court had referred call

details to support the reasons of charge but no such call details

were made available to present petitioner. He further submitted

that the record and investigation clearly indicated that no mobile

handset was seized from petitioner and no record of ownership of

SIM card was produced by Investig