1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.225 OF 2007 The State of Maharashtra .. Applicant versus Alwyn Mark Sequeria & ors. .. Respondents ... Mr.D.S. Mhaispurkar APP for the State. Mr.V.R. Manohar, Sr. Counsel with Mr.A.P.Mundargi, Ms.Chandana Salgaonkar i/b Shri Rizwan Merchant and Swapnil L. Wagh for respondent no.9. Mr.S.V. Kotwal i/b Shri S.S. Bhandary for respondent no.8. Mr.Ayaz Khan for respondent nos. 1, 2 and 6. CORAM : D.G.KARNIK, J DATED : 11th February 2008 ORAL ORDER:- 1. Heard. 2 2. By this criminal revision application, the State challenges the order dated 8th March 2007 passed by the Special Judge for NDPS, Gr.Mumbai, directing it to file separate charge-sheets against accused nos.1 to 5 for the offences alleged to have been committed by them on or about 26th January 2005, and another separate charge-sheet against accused no.9 in respect of offence allegedly to have been committed by him on 2nd August 2005. 3. The prosecution case in brief is that the accused no.1, who is the Manager of Provogue Lounge (Bar) of which the accused no.9 is a director, attempted to send to the accused no.3 a parcel by courier from the airport at Mumbai. In the X-Ray screening it was found that the parcel consisted of three bottles containing some powder. When the packet was opened the accused no.1 ran away from the airport. The parcel was thereafter given to the police who sent it for chemical analysis. The report of the chemical analyser was negative in respect of any narcotic drug. However an officer of Anti Narcotic Cell feeling suspicious decided to perform retesting. Traces of cocaine were found in the bottles. It is alleged that accused nos.4 and 5, who are the concerned police officers,replaced the 3 contents of the bottles by substituting boric powder for the cocaine. Thus, an offence is alleged to have been committed by accused nos.1 to 5 in attempting to send narcotics through a courier on 26th January 2005. 4. Another group of incidences is alleged to have occurred in July 2005. Accused nos.6 to 8 who are foreign nationals were arrested on three different dates at three different places and are alleged to be possessed of commercial quantity of cocaine. They are being tried for possessing commercial quantity of cocaine. 5. The third incidence is dated on 2nd August 2005. According to the prosecution in the course of search of the house of accused no.9 a bottle containing three grams of cocaine was recovered from his bathroom. 6. All the accused are sought to be jointly tried for the aforesaid alleged offences committed by them in the three incidents narrated above, on the allegation that all three instances are part of the same conspiracy. It appears that the second incidence involving accused nos. to 8 is unconnected with the first and third incidence. However, 4 according to the prosecution the first and the third incidences are connected with each other and form part of the same transaction and therefore, joint trial of accused no.1 to 5 and 9 is necessary. I would consider the submission hereafter. 7. When the case came up for consideration of bail at the instance of accused no.9 (Bail application no.152 of 2005) the learned Special Judge while granting bail observed:- "Before passing the final order there is need to observe regarding filing of a single charge-sheet arraying nine accused without having any evidence to establish nexus between them all. Mr.J.R. Solanki, learned APP rightly submitted during the course of hearing of earlier bail application that there has to be three groups and three charge-sheets. Evidence relied upon point out that searches, seizures conducted at the premises of accused nos.6 to 8 are the results of independent operations having no nexus with the rest of the accused. If 5 advised it is expected that proper course, keeping in view the provision of section 223 of Cr.P.C., will be followed. 8. Thereafter, on 16th September 2005 the learned Special Judge passed the following order in the order sheet (roznama): "Mr.Ayaz Khan for accused mentioned that chargesheet in the present form would not be tenable as there are misjoinder of charges. There cannot be joint trial of Accused Nos.1 to 9 where there is no interse connection between them. In this regard while granting bail application of Accused no.9 on 6.9.2005, this court has observed that there is need to split up chargesheet and to this Learned APP in principal agreed. In fact, it was his submission during course of hearing to bail application of Accused no.9 that case need to be split up in to three charge-sheets. . Learned APP to take steps in 6 this regards." Thereafter, by a speaking order dated 3rd August 2006 the Special Judge directed the State to file separate charge-sheet as per the earlier direction of the court contained in the Roznama order dated 16th September 2006. 9. Relying on these three orders, Mr.Manohar, learned Sr. Counsel submitted that the impugned order dated 8th March 2007 is only a sequel to the earlier two orders and cannot be faulted with. The Court had already directed filing of separate charge-sheets and therefore there was nothing in the court passing the impugned order dated 8th March 2007 directing filing of separate charge-sheets. It may be noted that though the first order dated 6th September 2005 granting bail to accused no.9 and the order in the Roznama dated 16th September 2005 giving a direction to the learned APP to take the necessary steps (for splitting up of the charge-sheets) were not appealed against, the order dated 3rd August 2006 directing the prosecution to file separate charge-sheet in respect of the matter was challenged by the State before this court by filing Criminal Revision Application no.376 of 2006. 7 By its order dated 19th December 2006, passed by consent of the parties, this court set aside the order of the learned Special Judge dated 3rd August 2006 directing filing of a separate charge-sheet by observing that such a direction could be given only at the time when the Court applied its mind to the allegations in the charge-sheet and scrutinised the material before it and formed an independent opinion. Since the order dated 3rd August 2008 which was based upon the earlier direction given by the court in the Roznama dated 16th September 2005 which in turn was based upon its earlier order dated 6th September 2005 was set aside by this court, in my view, the accused cannot rely upon the observations made in any of the said orders for the purpose of contending that separate charge-sheet would have to be filed. 10. I would, therefore, consider independent of the three earlier orders of the Special Judge, whether the order dated 8th March 2007 directing the State to file separate charge-sheets against accused nos.1 to 5 for the offence alleged to have been committed on 26th January 2005 and another against accused no.9 in respect of the offence alleged to have been committed on 2nd August 2005. is sustainable in law. 8 11. Sub-section (1) of Section 218 of the Code of Criminal Procedure (for short "the Code") lays down that for every distinct offence for which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Proviso to section 218(1) says that where the accused person, by an application in writing, so desires and the Magistrate is of he opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of charges framed against such person. Sub-section (2) of section 218 lays down that sub-section (1) shall not affect the operation of the provisions of sections 219, 220, 221 and 223 of the Code. Section 219, 220, 221 and 223 lay down the principles when different offences may be tried together and/or when more than one persons can be charged jointly and tried together. 12. The scheme of the Code is that for every distinct offence, an accused person shall be charged separately and tried separately. (section 218) Proviso to section 218(1) is an exception to this rule and provides that on an application in writing by the accused, the court may try together more than one charges against the same person. Sections 219, 9 220, 221 and 223 also are in the nature of exceptions to the general rule that for each offence there should be a separate trial. They contain provisions when a person or persons may be tried together for different offences. In the present case we are not concerned with section 219, 220 and 221. The prosecution however contended that joint trial is permissible under section 223 of the Code which reads thus:- 223. What persons may be charged 223. What persons may be charged 223. What persons may be charged jointly jointly jointly - The following persons may be charged and tried together namely - (a) persons of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or 10 attempting to commit any such last-named offence; (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1850O relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. Learned APP submitted that the present case falls under clauses (a) and (b) of section 223 of the Code and therefore the joint trial is permissible. It may be noted section 223 is an enabling provision which permits more than one person to be charged and tried together under the circumstances mentioned therein. Section 223 does not compel the Court to try all persons together and jointly even in cases covered by 11 it. It only enables the court to try them together. In Purushottamdas Vs. State of Bengal reported in AIR 1961 S.C. 1589, the Supreme Court while considering the provisions of section 235 and 239 of the Old Code, (section 239 of the Old Code is para materia with section 223 of the present Code) held that as section 235/239 were only enabling sections. The Legislature rightly did not make it incumbent on the Court to try a person for the various offences at one trial nor to try together various persons for different offences committed in the course of same transaction. In my view, in respect of the cases covered by section 223 of the Code, it is permissible but not mandatory for the court to order the joint trial. Even in those cases the court can order separate trials where the interest of justice so requires. When it is shown to the court even in cases where a joint trial is permitted that the joint trial is likely to cause prejudice to the accused, the court may decline to try all the offenders together. 13. I would now consider whether in respect of the two alleged incidences joint trial is permissible in the present case. Reliance is placed by the State on clauses (a) and (d) of section 223. Clause (a) permits joint trial of persons accused of the same 12 offence committed in the course of same transaction and clause (d) permits joint trial of the persons accused of different offences committed in the course of same transaction. The basic requirement for attracting of the clauses (a) or (d) is that the persons accused must be involved in (i) the same offence in the course of the same transaction or (ii) in different offences committed in the course of the same transaction. 14. In Balbir Vs. State of Haryana & Anr., AIR 2000 S.C. 11, the Supreme Court has explained the meaning and effect of clauses (a) and (d) of section 223 in the following words:- "......In both the aforesaid clauses the primary condition is that persons should have been accused either of the same offence or of different offences "committed in the course of the same transaction". The expression advisedly used is in the course of the same transaction". That expression is not akin to saying "in respect of the same subject matter". It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also (corresponding to section 235(1) of the old Code). The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223(1). It is so understood by this Court in State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao (1964) 3 SCR 297 (AIR 1963 SC 1850 : 1963 (3) Cri.L.J 671) The following observation in the same judgement is contextually quotable. 13 . The series of acts which constitute a transaction must of necessity be connected with the another and if some of them stand out independently, they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression "same transaction" alone had been used in S.235(1) it would have meant a transaction consisting either of single act or of a series of connected acts. The expression ’same transaction’ occurring in clauses (a), (c) and (d) of S.239 as well as that occurring in S.235(1) ought to be given the same meaning according to the normal rule of construction of statutes. . For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design where there is continuity of action, then all those persons involved can be accused of the same or different offences committed in the course of the same transaction". 15. In the present case, the act of accused no.1 of being in possession of three bottles containing cocaine and attempting to despatch it by courier on 26th January 2005 from the Bombay Airport cannot be regarded as a part of the incidence of recovery of three grams of cocaine from the house of accused no.9 on 2nd August 2005. Apart from the fact that they are quite distant in time the material on record does not establish even prima facie any connection between 14 the two. Similarly, it is not shown that recovery of three bottles of cocaine from the accused no.1 on 26th January 2005 was a part of same transaction of possession and recovery of some cocaine from accused nos.6 to 8 in July 2005. Again apart from the fact that these incidences happened at distinct and remote points of time, there is nothing on record to show that they formed part of the same transaction. In the circumstances, in my view, none of the three instances are shown, even prima facie, to be part of the same transaction or in the course of the same transaction. 16. In the circumstances, the learned Special Judge was right in holding that each of the incident, prima facie, constituted a different offence not committed in the course of same transaction and therefore the accused could not be tried together. 17. Before I part, it may be mentioned that Mr.Kotwal submitted that the application for bail made by accused no.8 before the trial court has not been considered only because of pendency of the revision application in this court. Though the pendency of the revision application in this court does not appear to be sufficient ground for delaying 15 consideration of the bail application, in any event, since the revision application has been disposed of it would be appropriate that the learned Special Judge considers the application for bail made by accused no.8 and other accused,if any, on its own merits at an early date. 18. With these observations, the revision application is dismissed summarily. 19. Record and Proceedings be sent back forthwith. (D.G. KARNIK, J)