For a person to be charged for commission of a particular offence, the material relied upon by the prosecution must be of such nature that can be translated into evidence: High Court of J&K and Ladakh

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Reserved on 21.09.2021 Pronounced on 13.10.2021 Mohammad Sadiq @ Mattu Crl R No. 26 2020 Through : Mr. Monish Chopra Advocate Union Territory of J&K Through : Mr. Bhanu Jasrotia GA CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present criminal revision petition has been filed by the petitioner against order dated 02.12.2020 passed by the learned Additional Sessions Judge Rajouriin challan titled Union Territory of J&K vs. Mohd Sadiq and another by virtue of which besides sections 8and sections 21 22 29 of the Narcotic Drugs Psychotropic Substances Act 1985 the petitioners has also been charged under sections 25 and 27 A of the Act. It is stated that there is no evidence on record with regard to the commission of offences under sections 25 and 27 A of the Act as such the learned trial court could not have framed the charges against the petitioner for commission of offences under sections 25 and 27 A of the Act. Status report stands filed by the respondent in which it is stated that on 25.06.2020 during routine patrol checking the Police officials 2 Crl R No. 26 2020 saw a Motorcycle bearing registration No. JK11A 8312 parked on the road side and two unknown persons were sitting on it. On seeing the police party they started the Motorcycle in order to run away but they were apprehended by the Police personnel. The pillion rider was having a bag red green and yellow in colour on which Mohsin was written in English. On enquiry he disclosed his name as Mohd Sadiq petitioner herein and the person who was driving the Motorcycle disclosed his name as Mohd Rafiq. During search a pink coloured polythene was found in the bag which was having rupees five lacs Indian currency along with approximately 4 grams of Heroin like substance. Thereafter FIR bearing No. 107 2020 for commission of offences under sections 8 21 22 25 27 A and 29 of the Act was registered with Police Station Manjakote and after the conclusion of the investigation the challan was filed before the trial court. vehemently argued that a bare perusal of the challan as well as the evidence collected by the Investigating Officer in support of the challan would reveal that there is absolutely no evidence on record with regard to the commission of offences under sections 25 and 27 A of the Act. Mr. Chopra further submitted that as the Investigating Officer has himself come to the conclusion that the recovery of Rs. 5.00 lacs and drugs from the same bag in possession of the said persons clearly indicates that the money was the proceeds of sale of the drugs. Mr. Monish Chopra learned counsel for the petitioner has 3 Crl R No. 26 2020 Mr. Bhanu Jasrotia learned GA appearing for the respondent has vehemently argued that the learned trial court after hearing the arguments of the parties has framed the charges and there is no illegality in the order impugned passed by the learned trial court. Heard and perused the record. The order impugned reads as under: “1. PP present. Learned counsel for the accused through Video Conferencing. Heard the arguments on charge. Prima facie offence under sections 8(c) 21 22 25 27 A 29 of the NDPS Act are made out against accused Mohd. Sadiq alias Matoo and offences under 8(c) 21 22 27(A) 29 of NDPS Act are made out against accused Mohd. Rafiq. Charge has been framed and read over to both the accused through Video Conferencing. The signatures of the accused have also been taken on the memos of charge sent to District Jail Dhangri though a Special messenger. The accused have denied the allegations leveled against them in the memos of charge and claimed to be tried by the court. Therefore prosecution is directed to lead evidence. Put up on 24.12.2020.” A perusal of the order impugned reveals that the learned trial court has heard the arguments on charge and thereafter has simply framed the charges without reflecting as to what were the arguments those were advanced by the accused. No doubt while framing the charge no reasons are required to be given but nonetheless once the learned trial court mentions in its order that the arguments were heard then it was obligatory on the part of the learned trial court to consider the arguments and decide the contention raised by the accused. The Hon’ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat 16 SCC 547 has held as under: 4 Crl R No. 26 2020 23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court what the court is expected to do is it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is the court must be satisfied that with the materials available a case is made out for the accused to stand trial. A strong suspicion suffices. However a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence." Thus for a person to be charged for commission of a particular offence the material relied upon by the prosecution must be of such nature that can be translated into evidence. As the learned trial court has not returned any finding with regard to the contentions raised by the petitioner so this Court does not deem it proper to consider the same in the revision and leave the same to be considered by the trial For all what has been discussed above this Court is of the considered opinion that the order passed by the learned trial court is not proper and once the learned trial court has recorded in its order that arguments were heard then it was obligatory on the part of the learned trial court to consider and decide the same. As such the 5 Crl R No. 26 2020 order impugned dated 02.12.2020 is set aside and the matter is remanded back to the trial court to decide the same afresh after affording opportunity of being heard to both the parties. Disposed of. JAMMU Judge Whether the order is speaking: Whether the order is reportable: 

Summary: No doubt while framing the charge, no reasons are required to be given but nonetheless, once the learned trial court mentions in its order that the arguments were heard then it is obligatory on the part of the learned trial court to consider the arguments and decide the contention raised by the accused as held by the Hon’ble High Court of J&amp;K through the learned bench of Hon’ble Mr. Justice Rajnesh Oswal in the case of Mohammad Sadiq Vs Union Territory of J&amp;K. [Crl R No. 26/2020] Facts on the record are that during routine patrol checking, the Police officials saw a Motorcycle parked on the roadside and two unknown persons were sitting on it. On seeing the police party, they started the Motorcycle in order to run away but they were apprehended by the Police personnel. The pillion rider was having a bag, red, green, and yellow in color, on which ‘Mohsin’ was written in English. On inquiry, he disclosed his name as Mohd Sadiq, petitioner herein and the person, who was driving the Motorcycle disclosed his name as Mohd Rafiq. During the search, pink-colored polythene was found in the bag, which was having rupees five lacs Indian currency along with approximately 4 grams of Heroin substance. Thereafter, FIR bearing No. 107/2020 for a commission of offenses under sections 8, 21, 22, 25, 27-A, and 29 of the NDPS Act was registered with Police Station, Manjakote and after the conclusion of the investigation, the challan was filed before the trial court. Mr. Monish Chopra learned counsel for the petitioner has vehemently argued that a bare perusal of the challan, as well as the evidence collected by the Investigating Officer in support of the challan, would reveal that there is absolutely no evidence on record with regard to the commission of offenses under sections 25 and 27- A of the Act. Mr. Bhanu Jasrotia learned GA appearing for the respondent has vehemently argued that the learned trial court after hearing the arguments of the parties have framed the charges and there is no illegality in the order impugned passed by the learned trial court. After hearing both the parties and a perusal of the impugned order, the court observed that the learned trial court has heard the arguments on charge and thereafter has simply framed the charges without reflecting as to what were the arguments that were advanced by the accused. In conclusion, while relying the judgment of Hon’ble Supreme Court on the case of Dipakbhai Jagdishchandra Patel v. the State of Gujarat, the High Court stated that “For a person to be charged for commission of a particular offense, the material relied upon by the prosecution must be of such nature that can be translated into evidence. As the learned trial court has not returned any finding with regard to the contentions raised by the petitioner, so this Court does not deem it proper to consider the same in the revision and leave the same to be considered by the trial court.