Case: Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau

2. Appellant had a diplomatic outfit earlier (an honorary officer in the Consulate of Liberia at Mozambique) of which he was subsequently stripped. He is said to be an Indian citizen as he holds a passport issued from India. He is now facing a charge under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short "the NDPS Act") before a Special Court at Chennai. He moved the trial court for a discharge under Section 227 of theCode of Criminal Procedure, but in vain. He then moved the High Court of Madras for quashing the said order of the Special Court. A learned Single Judge of the High Court dismissed his petition as per the impugned order.3. On 21.4.1994, the Royal Police of the Kingdom of Swaziland (situate adjacent to South Africa and Mozambique) intercepted a container truck carrying nearly 2Â« million tablets of "Mandrax". They were packed in plastic packets of 1000 tablets each and cartoned in slabs consisting of 9 packets each. The contraband was concealed in packets of electric globes. Mandrax is a High potency narcotic substance, the chemical name of which is "Methaqualone". As the catch was of a significant quantity of forbidden substance, messages were sent to various Narcotic Control Bureau. It was eventually discovered that the said stock was despatched from the port of Chennai in India in the name of M/s. K.J. Exports, 36 Seventh Street, Shastri Nagar, Chennai-20 and the destination was shown as a company in South Africa by name M/s. Dynamic Electronics Ltd., Annfrere (South Africa). After the investigation, a complaint was filed against four persons (1. Arib K. Patel, 2. Y.V. Nagraj, 3. G.N. Venugopal, 4. M. Arumugam) under different offences (Sections ?) of the NDPS Act. Subsequently the investigating agency received some more information about the aforesaid Mandrax and the connection of the appellant therewith. They obtained permission from the Special Court to conduct further investigation into the matter under Section 173(8) of the Code. Such investigation revealed to the investigating officer that appellant was one of the key persons who conspired with the other four accused already charge-sheeted. Subsequently appellant was also arraigned with them for the offence under Section 29 of the NDPS Act.4. In support of the plea for pre-charge exoneration appellant pleaded before the High Court, inter alia, that no sanction has been obtained under Section 188 of the Code. That plea was repelled by the High Court and learned counsel did not, according to us rightly, raise that plea in this Court during arguments.5. Two documents pressed into service by the appellant before the High Court and in this Court are : (1) A letter addressed by the Mozambique Police in August, 1966. (2) A fax message sent by South African Police Service on 3.4.1997 stating that no material has been thus far collected to connect the appellant with the contraband consignment.6. The High Court did not accept any of those documents to sustain the plea of the appellant. We too do not find any force in the contention based on those two communications, for, they revealed only what the police then felt on the materials they could unearth till then. Such a view expressed by the police in those countries cannot foreclose the investigating force in India from arriving at the right conclusion, nor even the police authorities of those countries themselves from taking a different view subsequently.

Reasoning: 13. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the Court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the Court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time. It must be borne in mind that appellant is not a proclaimed offender and we are not considering the eventuality in which he would be so proclaimed. So the observations made in Kartar Singh in a different context is of no avail to the appellant.It is well settled that at the stage of framing charge the court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the court could come to the conclusion that the accused would have committed the offence the court is obliged to frame the charge and proceed to the trial.The present is certainly not a case where the aforesaid ratio can justifiably be applied. A three-Judge Bench of this Court in State of Maharashtra & ors. v. Som Nath Thapa & ors., 1996(4) SCC 659, has held thuson the basis of materials on record a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offense. It is parent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that32)19. There is no scope for contending in this case that the court cannot frame charge under Section 29 read with Section 23 of the NDPS Act. The trial court and the High Court rightly repelled the plea of the appellant in that regard.