1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 142 of 2008. Date of Decision: November 4, 2008. _______________________________________________________ Ramesh Chand. Petitioner. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Dr.J.N.Barowalia, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. ____________________________________________________ Surinder Singh, J (oral). This criminal revision petition has been directed against the order passed by the learned Special Judge (Fast Track Court), Chamba, in Case S.T No.9/2008/2007 titled as State vs. Satish Kumar and another, whereby the petitioner herein, was ordered to be summoned suo moto, by the court below, after hearing final arguments, as an accused purported to be under Section 319 Cr.P.C. for the offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The synoptical resume of the facts giving rise to the present petition are that on 16.8.2006 at about 6 P.M., the police party headed by ASI Hanj Raj was on Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 patrolling duty and noticed accused Satish Kumar coming from Lahru side. When he tried to escape on sighting the police, it became suspicious. In the meantime, one person Dinesh Kumar came on his motor-cycle and police officials took his assistance to apprehend the accused. On his personal search from his shirt-pocket police recovered 144 capsules of Parvon Spas and 19 capsules of Proxyvon Spasmo. These were ‘schedule-H’ drugs and psychotropic substance, the said accused could not produce any prescription slip of the registered medical practitioner or a licence for retaining the same. The case property was taken into possession and the accused was arrested. A ruka was sent for the registration of the case, on the basis of which FIR No.65/2006 was registered on 16.8.2006 against him under the aforesaid section. During the interrogation of accused Satish Kumar, on 19.8.06 it came to the notice of the Investigating Officer that the said drugs were purchased by him from ‘M/s Kumar Medicos’, Nurpur from Shri Manmohan Sharma (accused No.2). He led the police party to the said medical store and identified him. On the search of the shop, police recovered 760 capsules of Parvon Spas, 1600 capsules of Polyvon Spas and 576 capsules of Spasmo Proxibon, Manmohan was arrested. The bill book containing the bill Nos.245 and 3 246 were also taken into possession. The drug samples recovered were sent for the examination to the Forensic Science Laboratory Junga and after getting the report and completing other formalities, the case was presented in the court against accused Satish Kumar and Manmohan Sharma for their trial. Both the accused persons were charge-sheeted, for the offence aforesaid. Thereafter the prosecution examined 20 witnesses to prove its case including proposed accused Ramesh Chand (PW12). Both the accused were also examined under Section 313 of the Code of Criminal Procedure. As already stated above after hearing the final arguments, the learned Special Judge, vide his order dated Ist August, 2008 summoned the petitioner as an accused, on the basis that he was a licencee and the cash memo/ bill book of ‘M/s Kumar Medical Store’ (Ex.PW4/B), bore the signatures of Ramesh Chand petitioner and also that the main accused Satish Kumar is alleged to have purchased the aforesaid drugs without any prescription slip from the shop run by Ramesh Chand, licencee, but the drugs aforesaid did not find mentioned in the cash memoes. The order aforesaid has been impugned in the present petition. Dr. J.N. Barowalia, learned counsel for the petitioner has vehemently argued that though the 4 petitioner was a licence-holder, but the said medical store was being run by Manmohan Sharma (accused No.2) in the premises of Satish Kumar son of Shri Tek Chand (PW14), who had rented out these premises to Shri Ved Parkash, father of accused No.2 Manmohan Sharma. To this effect, the rent deed Ex.PW14/A was also exhibited during the trial of this case and further the learned counsel also referred to the statement of the proposed accused (PW12), whereby he has categorically stated that w.e.f. Ist August, 2006 to 24th August, 2006, he remained ill and was not present in the said premises, to this effect his statement remained unchallenged. He further argued that from the evidence on record, the petitioner could not be connected with alleged offence but he was ordered to be summoned only on the basis of suspicion. It was also canvassed that in the instant case, 20 witnesses have been examined, accused persons have also been examined under Section 313 Cr.P.C. and even final arguments were heard but from the evidence on record or sought to be adduced against him would not prove the case against the proposed accused, therefore, his impleadment would be a futile exercise without yielding in fruitful result and would further delay the matter against the other accused. 5 Contra, Shri J.S. Guleria, learned Law Officer while supporting the impugned order has submitted that a prima-facie case is made out against the petitioner for his summoning as an accused being a licencee of the medical store, from where the drugs were purchased by the main accused. At this stage the possibility of conviction or acquittal of the accused is not to be seen and the person can be impleaded as an additional accused on a mere suspicion. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record. There is no manner of doubt that the court trying an offence is empowered to proceed against other person(s) appearing to be guilty of the offence at any stage of the trial, as per the provisions of Section 319 of the Code of Criminal Procedure. It is an extra ordinary provision and is required to be used by the court very sparingly and only if compelling reasons exist for taking cognizance against the additional accused. The basic requirement for invoking the above provisions is that it should appear to the court from the evidence collected during the trial or enquiring that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already 6 arraigned. On the bare perusal of Section 319 Cr.P.C. it becomes quite clear that to implead the accused, it is not enough that court entertained some doubt, from the evidence, about the involvement of such person in the offence, it should appear to the court that the person so impleaded is guilty of the offence, which is more than a suspicion. To take this view I am supported by the judgment of the apex court handed down in Michael Machado and another vs. Central Bureau of Investigation and another [(2000)3 Supreme Court Cases 262] . It is pertinent to note the statement of the proposed accused Ramesh Chand examined as PW12 before the trial court. Though he has admitted that the drug licence was in his name, but ‘M/s Kumar Medicos, Nurpur’ had sold this shop to Ved Parkash the father of accused Manmohan Sharma in the year 1997-98, thereafter he had been working with Shri Ved Parkash as a Pharmacist licence-holder. He has denied his signatures on the bill book Ex.PW4/B and categorically stated that w.e.f. 1.8.2006 to 24.8.2006 he remained on leave, whereas the date of alleged offence is 16.8.2006. Even, PW17 ASI Hans Raj stated that on the information of the main accused, the premises were raided on 19.8.2006 and he found Manmohan Sharma accused No.2 present in the shop who was identified by 7 accused No.1 from whom the drugs aforesaid were alleged to have been purchased. PW18 Drug Inspector has only stated that the Drug Licence Ex.PW18/A was in the name of the petitioner, but the presence of the petitioner has not been shown in the shop when these drugs were allegedly purchased by the main accused. There is also no link evidence to connect him with the alleged offence. Thus, in the case before me the above statements and other material shown to me, could at the worst create some doubt or suspicion, but as already stated above, the suspicion is not sufficient to hold that there is a reasonable prospect of conviction of the petitioner for the offence alleged. I strongly feel that this is not a situation where the trial Court ought to have exercised its powers under Section 319 of the Code which necessitates wasting of evidence already collected by it thus far against the arrayed accused. Hence for the reasons aforesaid, the order of learned trial court exercising its powers under the aforesaid section has to be interfered with to enable the trial to proceed to its normal culmination. I, therefore, allow the present petition, consequently quash and set-aside the order dated 1.8.2008 passed by the learned Special Judge Sessions Judge (Fast Track Court) Chamba summoning the petitioner as an accused in the case. The petition stands accordingly disposed of. Send down the records. (Surinder Singh) Judge. November 04, 2008. (Pds) 8