IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.13338 of 2009 ARUN KUMAR KEDIA, Son of Shri Jagdish Prasad Kedia, Proprietor of M/s. Ramchandra Ghasiram & Co., 58-F, Kali Krishna Tagore Street, Kolkata – 700 007, West Begal. ......... Petitioner. Versus 1. STATE OF BIHAR 2. The Union of India, through the Commissioner of Custom (Prev.), Central Revenue Building, Birchand Patel Path, Patna. ....... Opp. Parties. ----------- For the Petitioner :- Mr. N. N. Ojha, Advocate. For the Union of India :- Mr. Binay Kumar Pandey, CGC For the State :- Mr. Z. Hoda ADU (APP) 03/ 19.01.2011 Heard. This application is directed for quashing the order dated 08.12.2006 passed by the learned Sessions Judge, Patna in Special Case No. 70 of 2005 by which a cognizance has been taken under Sections 8, 20, 23, 25, 27A and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and in consequence the warrant of arrest has been ordered to be issued against the petitioner. The prosecution case as alleged by the complainant in the complaint petition filed by Mr. B. K. Sinha on 17.12.2005 at 19.00 hours the Officers Customs Head Quarters (Prev.), Patna alleging therein that on receipt of a specific information about illicit trafficking of huge quantity of Ganja, the Officers of the Customs Department / 2 Headquarters (Preventive), Patna rushed and found a truck on the road side on Motihari – Chhapwa Road bearing Registration No. WB41A / 5744 parked abandoned state and despite best efforts, the driver or the Khalasi of the said truck could not be located. On search 600 jars of Nepalese Vanaspati of ‘Cook’ brand each weighing 15 Kg. (total 90000 Kg.) and 8 (eight) packets of Ganja with a net weight of 135 Kg. net concealed beneath layers of stacking of jars of Nepalese Vanaspati as stated above were recovered from the truck and therefore seized in accordance with law under Section 43 read with Section 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985 for violation of Section 8 of the Narcotic Drugs & Psychotropic Substances Act, 1985. From the cabin of the truck there was recovery of some documents like the Lorry Challan dated 16.12.2005 of M/s Subh Laxmi Transport, Raxaul, Registration Certificate of the vehicle, Insurance Paper of the vehicle, Goods-carriage permit, West Bengal Form No. XII, some samples of stickers to be pasted on vanaspati jars and after due investigation it revealed that 600 jars of Nepalese Vanaspati of ‘Cook’ brand was imported from Nepal through Raxaul Land Customs Station. However, the Customs House Agent who was on 3 behalf of the importer got the goods cleared from Customs, stated in his statement (Annexure-D) that the role is limited to accompany the imported consignment with proper documents and as such he was unable to tell anything about Ganja found concealed under imported consignment and the complaint was filed making an accused, the accused importer, the transporter, the driver and khalisi on which the cognizance has been taken and on the said complaint a cognizance has been taken. The summons has been issued for an offence under Sections 8, 20, 23, 25, 27A and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Learned counsel for the petitioner submits that the allegations made in complaint make out an offence but the material available against the petitioner does not make out a prima facie case for issuing a process against the petitioner after taking cognizance. In the complaint petition itself it is stated that the transporter, the importer and the vehicle owner-none of them has taken any precaution to avoid such misuse indicates as case of negligence on their part. Thus it is submitted that it is apparently though a case of illicit trafficking of Ganja but contend that merely the transporter and importer has not taken the precaution does 4 not make out an offence. Learned counsel for the Union of India, however, contended that the allegations made in the complaint itself makes out an offence and the petitioner is the importer and the consignment was in his name and there is allegation that the said jar of the Nepalese Vanaspati was recovered from the said consignment and the Ganja packet concealed beneath layers of stacking of jars of Nepalese Vanaspati as stated above recovered from the truck and hence submits that a prima facie case is made out against the petitioner and allowing this petition at this stage is scuttling the prosecution at this early state which is neither legal nor in the interest of justice. However, having regard to the respective submissions of the parties, the question for consideration whether the order taking cognizance and issuing process suffer from infirmities to be quashed at this stage. However, having regard to the allegations, the truck was seized and 135 Kg. Ganja was recovered from the truck the truck was carrying with the consignment with the petitioner who is importer and as per the allegation made in the truck the consignment was in the name of the petitioner 5 which was carrying 600 jars of Nepalese Vanaspati of ‘Cook’ brand each weighing 15 Kg. (total 90000 Kg.) and 8 (eight) packets of Ganja with a net weight of 135 Kg. net concealed beneath layers of stacking of jars of Nepalese Vanaspati stated to have been recovered and hence this circumstance though gives a strong suspicion about the involvement of the petitioner. However, the matter can only be decided at the stage of trial when the parties are required to lead evidence and giving opportunity to the other side to raise defence. Hence, having regard to the fact, at this stage interfering with the order is neither appears to be in the interest of justice nor permissible or permitted to be law. However, the petitioner may raise the issue if so desired at the stage of framing of the charges. Hence, I do no feel inclined to interfere with the impugned order and hence the application is dismissed. Kundan (Gopal Prasad, J.)