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1. The present revision application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code'), challenging the order dated 04.12.2023 in Special (NDPS) Case No.1 of 2023 by the learned Additional Sessions Judge, Ankleshwar of rejection, wherein the revisionist had prayed for discharge from the Special (NDPS) Case No.1 of 2023 by filing an application at Exh.14, which was in connection to FIR at Ankleshwar Police Station being II C. R. No.11199006220751 of 2022 for the offence punishable under Sections 8(c) , 22(c) and 29 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (in short ' NDPS Act ') registered on 16.08.2022.

2. The facts urged leading to filing of the present revision application are as under;

2.1 Initially, the First Information Report was lodged in Anti Narcotic Cell Worli Unit, Mumbai Crime Branch for the offence punishable under Sections 8(c) , 22(c) and 29 of the NDPS Act recorded on 29.03.2022 as C.R. No.25 of 2022. FIR was Page 2 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined registered against one person and during the investigation, large quantity of contraband goods was found and names of other accused came on record. In course of further investigation, it was revealed that one Ramendrakumar Giriraj Kishor Dixit who was arrested as accused No.7 was producing the goods in a firm called Infinity Research and Development. Such firm was owned by the petitioner situated at Plot No.2924, Phase 3, GIDC, Panoli, Taluka Ankleshwar. The Mumbai Crime Branch visited and searched the factory premises of the petitioner on 12.08.2019. The petitioner was interrogated extensively by the police officer of the Mumbai Crime Branch and after thorough investigation, police officers of the Mumbai Crime Branch come to the conclusion that accused No.7 Ramendrakumar Giriraj Kishor Dixit is solely responsible person for production of drugs in the factory premises of the petitioner. The challan has been filed under Section 173 of the Code in the Court of learned 44 th Additional Sessions Judge, Mumbai recorded as Sessions Case No.1219/2022.

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NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 2.2 As per the impugned FIR of local Bharuch / Anleshwar police formed a search party and visited the factory premises on 16.08.2022. It is the case of the Investigating Officer that large quantity of contraband goods was seized from the premises of the petitioner and therefore, FIR has been lodged, wherein the present petitioner has been arraigned as accused No.2. After the investigation, charge-sheet has been filed in connection to the FIR with Ankleshwar Police Station. 2.3 It is the case of the petitioner that both the FIRs are arising out of the common case. As per the facts Mr.Premprakash Singh is the main accused, who got the contraband goods manufactured and produced in two factories

- one at Thana, Mumbai and at Ankleshwar, the role of the present petitioner has been examined by the Mumbai Crime Branch. It is contended that for one transaction, two FIRs have been recorded and therefore challenging the second FIR contended that it is against law, and when petitioner has not been charge-sheeted in the proceedings for the FIR at Anti Page 4 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined Narcotics Cell, Mumbai he is required to be discharged qua FIR at Ankleshwar Police Station.

2.4 While relying upon the seizure panchnama drawn by the Ankleshwar Rural Police Station, the Sessions Court has observed that the muddamal seized by the Ankleshwar Rural Police station was not the same article, which was not seized by the Anti Narcotics Cell (ANC), Crime Branch, Mumbai, during its raid and therefore, came to the conclusion that both the offences are separate. Moreover, the learned Sessions Court also relied upon the fact that the present petitioner is partner in the factory and he used to take visit of his factory once in a week for doing administrative work. After hearing both the parties, vide order dated 04.12.2023 rejected the discharge application.

3. Being aggrieved and dissatisfied with the said order dated 04.12.2023, the petitioner preferred present revision petition. Page 5 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024

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4. Heard learned advocate Mr. B. M. Mangukiya for the petitioner and learned APP Mr. Trupesh Kathiriya for the respondent - State.

5. Rule. Learned APP Mr. Trupesh Kathiriya waives service of notice of rule on behalf of respondent - State.

6. Learned APP Mr. Trupesh Kathiriya submitted that the company of the petitioner is in business of pharmacy related products, while no contract is signed by the company. Preliminary FSL report mentions the contraband article - Mephedrone Drug (MD). He further submitted that the license dated 20.09.2021 under the Factory Act, 1948 was granted in the name of the present petitioner. Four partners are there in Infinity Research and Development. It is also stated that petitioner was active partner of the firm from the very inception of the company having 30% holding in the partnership firm.

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NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 6.1 Learned APP submitted that the petitioner was caught at the factory premises at the time of raid by the Ankleshwar Police. It is coming on record from the statement of the co- accused that in the initial period, petitioner was trying to find out the partners and thereafter subsequently the firm started. It is also stated that even in recruitment process, petitioner had taken active part. Such fact was informed by the employees of the factory - Vikalsingh Ashokshingh and Mohmad Vajid Gulam. It is submitted that as per the statement of Umang Ramesh Kakadiya, the petitioner himself has procured Hydro-chloride (HCL) which is used in the manufacturing of the said MD Drugs, and bills to that effect are also seized.

6.2 Learned APP further submitted that one of the angadiya company person namely Jayant Tiwari made the statement disclosing that in the last one year several transactions were carried out and also agreed that activity is going on since last one year.

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NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 6.3 Learned APP submitted that the petitioner was charge- sheeted on 29.01.2023 and FIR was filed on 16.08.2022 and, upon the secret information, raid was carried out by the local police.

6.4 Referring to the provisions of law, learned APP submitted that Section 397 of the Code would give very narrow scope in revision and submitted that the challenge has been given to the order on the ground of double jeopardy, while the FIRs are of the different dates and with seizure of different quantity of contraband, and thus ground of "sameness of FIR" could not be raised after completion of investigation, when charge- sheet have been filed for both the offences. 6.5 Learned APP further submitted that so far as discharge application is concerned, the Court must proceed on an assumption that the material which has been brought on record by the prosecution is true and shall evaluate said material in order to determine the fact and contended that Page 8 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined considering the material taken on its face value, it discloses the existence of the ingredients necessary for the offence alleged.

6.6 As per the submission made by learned APP, Mumbai Crime Branch seized Total 1723 kg 250 gms of powdered MD. The Bharuch / Ankleshwar police seized 82 kg 387 gms of solid / crystallized MD and 1300 liters of liquid MD in connection with the respective FIR.

6.7 Learned APP submitted that on completion of the raid by the Anti Narcotic Cell, Mumbai, no further charge was given to the Ankleshwar police, and when the Ankleshwar police carried out the raid, at that time present petitioner was present at the factory premises with co-accused. The factory premises was not sealed by the Anti Narcotic Cell, Mumbai. Learned APP submitted that the complainant of both the FIRs are different and investigated by the two different authorities. Learned APP submitted that as far as the investigation for Page 9 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined Mumbai FIR was concerned, the chain of investigation ended at the factory premises. Whereas in the Ankleshwar FIR, the investigation started from the factory premises. 6.8 It is also submitted by learned APP that the date of FIR registered at Mumbai is 29.03.2022, whereas FIR at the Ankleshwar police Station is of 16.08.2022. The ANC, Mumbai carried out the raid on 13.08.2022, whereas Ankleshwar police raided the factory premises on 16.08.2022. The aspect that ANC Mumbai raided the factory premises on 12-13.08.2022 is mentioned in the Ankleshwar FIR.

6.9 Learned APP further stated that certain accused mentioned in the Mumbai FIR do not find mention in the Ankleshwar FIR, they are;

6.10 Thus, there is no "Sameness" of FIR, since accused in both the FIRs are different who played different role. It is further contended that the seizure Panchnama drawn by Ankleshwar police station mentions different contraband articles, than what was seized by the ANC, Mumbai during the raid.

6.11 Referring to the decision in case of Vijayan Vs. State of Kerala and another (2010 SCC 398 SC. 1979 3 SCC P.4=AIR 1979 SC P.366) in the case of Union of India Vs. Prafulla Kumar Samal and another , learned APP has referred to the guiding principles laid-down by the Honorable Supreme Court which are reproduced here under;

6.12 Learned APP placing reliance on the case of Palwinder Singh vs. Balwinder Singh reported in 2009 (3) SCC 850 submitted that the jurisdiction of Sessions Judge at the time Page 12 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined of discharge is very limited. Charges can also be framed on the basis of strong suspicion. Marshaling and appreciation of evidence is not in the domain of the court at that point of time.

6.13 While placing reliance on the judgment in case of Sajjan Kumar vs. CBI reported in 2010 (9) SCC 368 learned APP submitted that at the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition under Section 227, it is not for the Magistrate or a Judge concern to analyze all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other. 6.14 Learned APP further relied upon a decision in case of State of Tamilnadu vs. N. Suresh Rajan reported in 2014 (11) SCC 709, and submitted that at the stage of consideration of Page 13 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. 6.15 Learned APP also sought to canvass the "Test of Sameness" as considered by this Court in case of Kanaiyalal Sundarji Detroja vs. State of Gujarat in Special Criminal Application No.7756 of 2020, wherein filing of another FIR was put to test and submitted that the FIR is not related to same incident and therefore submitted that the FIR impugned can sustain and is maintainable in law.

6.16 Learned APP has also relied upon a judgment in case of Charansingh vs. State of Maharashtra in Criminal Appeal No.363 of 2021 (arising from SLP (Cri) No.6764 of 2020) to state that the statement / inquiry in relation to the FIR would Page 14 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined be restricted to ascertain whether a cognizable offence is disclosed or not and such statement cannot be said to be a confessional statement of the accused. After being satisfied and after the conclusion of the inquiry and on the basis of the material collected, if it is found that there is substance in the allegations and it discloses a cognizable offence, FIR will be lodged and the investigating agency has to collect the evidence / further evidence to substantiate the allegations / charge. 6.17 With the above submissions, learned APP prayed to dismiss the present petition.

7. Learned advocate Mr. B. M. Mangukiya for the revisionist referring to the facts of the case submitted that question of law is required to be appreciated by this Court to consider, whether any charge can be framed for the FIR and chargesheet which is not permissible in law. Whether facts suggest that the second FIR at Ankleshwar Rural Police Station is independent of first FIR with the Crime Branch, Mumbai. Learned advocate Page 15 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined Mr. Mangukiya submitted that the search was carried out by Crime Branch Mumbai on 13.08.2022 and at the time of raid, the factory was in operation and the production was in progress, it was stopped by the operator. Since all the machines were at high temperature and the chemicals were found to be inflammable, being highly risky, it was not possible for the crime branch to open the machinery at the time of conducting the raid. Hence, in view of safety and security, the chemical was not taken by the Mumbai Branch and the said chemical remained in the machinery. Referring to the affidavit of Amol Kadam, Worli Unit Crime Branch Mumbai, filed before the Special Case (NDPS) No.10 of 2022, learned advocate Mr. Mangukiya submitted that this fact has been stated by the officer in his affidavit. 7.1 Learned advocate Mr. Mangukiya stated that the inflammable chemical in the machine remained intake as was not seized by the crime branch, Mumbai and was shown as a recovery by the Ankleshwar Police and on that basis second Page 16 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined FIR came to be filed.

7.2 Learned advocate Mr. Mangukiya submitted that the local police was with the Crime Branch at the time of raid in the factory premises and officer in his affidavit has stated that help was sought of local police and raid was conducted on 13.08.2022 at factory situated at Plot No.29243, GIDC, Bharuch in presence of two panchas and Factory Controller. 7.3 Learned advocate Mr. Mangukiya further submitted that after the completion of the investigation process and seizure of contraband article, sample was sent to the FSL, Kalina, Mumbai for examination.

7.4 Learned advocate Mr. Mangukiya stated that since the material could not be taken from the machines as were in live process, Investigating Officer could recover on that day only part of contraband from the said factory, which forms the part of the case investigated by the Mumbai Crime Branch. Learned Page 17 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined advocate Mr. Mangukiya further stated that the unit of factory is surrounded in 3000 sq. mtr. area with three buildings. The Crime Branch, Mumbai searched the whole premises and the recovered article which according to the affidavit of Assistant Police Inspector, Mumbai was destructed on 02.06.2023 after following due process of law before the Drug disposal committee.

7.5 Learned advocate Mr. Mangukiya submitted that now it would be questionable, as to how the second FIR could be filed for the same search by the local police in the same premises, which was raided by the Crime Branch, Mumbai.

8. The FIR which was registered at Ankleshwar Rural Police Station as II - C.R. No.11199006220751 of 2022 under the NDPS Act was of 16.08.2022 at 20:30 hrs. The FIR of the Ankleshwar Rural Police station recorded that the present petitioner accused Chintan Rajubhai Pansheriya and Jayant Jitendrakumar Tiwari had created a company illegally in Panoli Page 18 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined GIDC and by bringing chemicals and processing them by solidifying, produced MD Drug. The FIR notes the seizure of MD Drug in solid form of 82.387 kgs and liquid form 1300 liters and in total the FIR notes values of the contraband of Rs.13,82,38,70,000/-. Over and above the same, the seizure of chemical in liquid form in 12 drums, whereby, One drum contained, chemical liquid of 200 kg i.e. total 2400 kg valued at Rs.12 lacs. Over and above that, the other chemical valued at Rs.1,24,034/-. Thereby, total muddamal seized is shown of Rs.13,82,52,69,034/-.

8.1 The FIR given by Mr. BM Chaudhari, Police Inspector, Ankleshwar Rural Police Station registered on 16.08.2022 at 20:30 hrs. is with the fact that on 15.08.2022, Mr. K. D. Mandora, Police Inspector, LCB, Bharuch was informed by the informant that in Panoli GIDC, Plot No.2924/3-4 Phase-3 in Infinity Research and development company on 12.08.2022, Anti Narcotics Cell, Mumbai Crime Branch found stock of MD Drug from the company and stock of suspicious chemical, and Page 19 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined after due process had seized the same and as per the information of the informant at present too there was stock of MD Drug in company.

8.2 In view of this secret information, they visited the company premises, where petitioner accused Chintan Rajubhai Pansheriya and Jayant Jitendrakumar Tiwari were found illegally processing the chemical, therefore seized the same as recorded.

9. Learned advocate Mr. Mangukiya while referring to the affidavit of the Investigating Officer Amol Kadam submitted that the raid was conducted along with the local police on 12- 13/08/2022 at company premises which itself suggest that during the raid the company premises was searched and the affidavit and the charge-sheet of the Mumbai Police, suggest that as the drugs were in process of its production and found to be in inflammable condition, it could not be recovered. Page 20 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024

NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 9.1 Learned advocate Mr. Mangukiya thus stated that such fact was known to the Ankleshwar police. However, another raid was conducted noting that the raid by the Mumbai police was informed by the informant with the information that stock still lies, which itself clarifies that the ANC, Mumbai could not recover rest of the material, which as per the officer Anmol Kadam was under the control of local police. 9.1.1 The impugned FIR notes the fact recorded in the presence of panchas that the factory premises of Infinity Research and Development is spread in 3000 mtr area, while entering from main door they did not find any illegal article in a big rectangular hall. Thereafter they had gone on the first floor lobby where there was a board of IPQC LAB on the left side, whereas at the right side they found two rooms and out of these rooms on the right side, the presence of accused Chintan Rajubhai Pansheriya and Jayant Jitendrakumar Tiwari was found. Where they also found drier machine near west wall. After opening the cover of the machine they found 24-24 in Page 21 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined total 48 trays arranged one upon another on rack and while opening the rack 1.5 to 2 kgs of light brown colour solid and powder material were found.

9.2 Learned advocate Mr. Mangukiya submitted that the article which they have found were seized at the spot by the Mumbai police and was under the control of the local police. Out of all 48 trays, material was taken from 10 trays into plastic bag which was weighed 12 kg and 549 gms. From such weight, if weight of plastic bag i.e. 121 gms is deducted, total 12 kgs and 428 gms MD Drug was there.

9.3 The report produced by the Police Inspector, Ankleshwar City B Division Police Station reflects that the sample seized was sent to FSL, Gandhinagar for examination. Further as per the submissions of the learned APP Infinity Research and Development have 4 partners namely; (1) Ramendrakumar Girirajkishor Dixit, (2) Rakeshbhai Dhirubhai Patel, (3) Hareshbhai Bhimjibhai Valani, (4) Premprakash Parasnath Singh Page 22 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 9.4 As per the raid on 12.08.2022 in Infinity Research and Development of Anti Narcotics Cell, Mumbai, 520 kgs MD Drug was recovered. One of the partners Ramendrakumar Girirajkishor Dixit was taken with them by Mumbai police and during the search of his residence, Ganjo was recovered. Jayant Jitendrakumar Tiwari, nephew of Ramendrakumar Girirajkishor Dixit was found at the company premises stated to be having a job at the company and as per the Ramendrakumar Girirajkishor Dixit, he was handling the company, while stock was prepared under the instructions of uncle by the nephew, and produced goods were sent to Prem Prakash Parasnath Singh at his residence at Mumbai. 9.5 Learned advocate Mr. Mangukiya states that the order impugned is vulnerable and the order would effect the right of the accused as he cannot be subjected to trial for the same offence of which an FIR has already been noted by the ANC, Mumbai and when the fact is brought to the notice of the concerned trial Court, it was necessary for the trial Court to Page 23 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined give direction to the Ankleshwar police to submit the muddamal so recovered through the FIR registered of ANC, Mumbai as would be part of the trial proceedings at Mumbai.

10. The judgment in case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation reported in 2013 (6) SCC 348 referring to the case of C. Muniappa vs. State of Tamilnadu reported in 2010 (9) SCC 567 for the applicability of the consequences test was considered. In accordance to the principle as laiddown in case of T. T. Antony vs. State of Kerala reported in 2001 (6) SCC 181, second FIR in case of offences relating to same transactions is impermissible and also was noted that such preposition of law has never been diluted in any subsequent judicial pronouncement. The situation not covered by this principle are (a) a second FIR is permissible in case of cross-case(s) and (b) a second FIR is permissible if offence(s) are disclosed which are not part of the first FIR nor can they be said to form part of same transaction as covered in first FIR nor can they be said to be arising as a Page 24 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined consequence of offence covered in first FIR. 10.1 Hon'ble Apex Court in Amitbhai Anilchandra Shah (supra) has noted about the administrative process protecting the ensured rights of the accused under the Constitution as imperative as ensuring justice to the victim. Further to observe that the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident giving arise to one more cognizable offence. The said concern was expressed in following terms;

NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 10.2 While referring to the provisions of the Code of Criminal Procedure , it was further noted that on completion of the investigation and on the basis of evidence collected the Investigating Officer has to form an opinion under Section 169 or 170 Cr.P.C . and forward his report to the Magistrate concerned under Section 173 (2) Cr.P.C. It was further noted that even after filing of such report, if the Investigating Officer comes into possession of further information or material, there is no need to register a fresh FIR, since he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports as per Section 173(8) Cr.P.C.

10.3 As per the scheme of the Cr.P.C . in connection with provisions of Sections 154 , 155 , 156 , 157 , 162 , 169 , 170 and 173 Cr.P.C., only the earliest or the first cognizable offence satisfy the requirement Section 154 Cr.P.C. Thus, it was Page 26 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined concluded that there cannot be any second FIR and consequently there cannot be any fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offence.

10.4 With reference to the conclusion as laiddown in C. Munniyappa (supra) it is held that if an offence forming part of the second FIR arises as a consequences of the offence alleged in the first FIR then offences covered by both the FIRs are the same and accordingly the second FIR will be impermissible in law. Furthermore, it is also clarified that because two separate complaints have been lodged, it does ot mean that there could not clubbed together and one charge sheet could not be filed. It was further clarified that if two FIRs pertains to two different incidents/crimes, a second FIR is permissible, and the second FIR would lie in the event when pursuant to any investigation in the first FIR, a larger conspiracy is disclosed which was not part of the first FIR. To Page 27 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined determine whether different offences ought to be treated as a part of the same transaction the "consequence test " laid down in C. Munniyappa (supra), becomes applicable. 10.5 In case of T.T. Antony (supra) second FIR in case of offence related to same transaction is found to be impermissible.

11. Here in the present case, the ANC Mumbai raided the factory premises at Panoli - Ankleshwar of the petitioner on 12-13.08.2022. The contraband seized during that raid has Page 28 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined been noted in the affidavit filed by the Investigating Officer Mr. Amol Kadam, ANC, Mumbai in reply to the discharge application of the present petitioner before the Special NDPS Court. It is also disclosed in the charge-sheet at Mumbai that the material which was in process of production could not be recovered since it was highly inflammable. It is also stated that raid was carried out with local police. Therefore, information regarding raid was already there with local police and on that information second FIR was registered by the Ankleshwar police. The Ankleshwar police raided the factory premises on 16.08.2022. They recovered the material from the tray drier / machine. Had ANC, Mumbai, successful on that very day to recover the material from the tray then that would have been muddamal seized in connection with the FIR registered at ANC, Mumbai.

11.1 The FIR registered at Ankleshwar Rural police station is in continuation of the FIR registered at ANC, Mumbai. The second FIR is permissible only if it is cross case or offence Page 29 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined disclosed is not the part of the first FIR or they do not form a part of the same transaction as covered in first FIR nor they are arising as a consequence of offences covered in FIR or that any larger conspiracy is disclosed which was not the part of the first FIR. Here, for the offence registered at Ankleshwar police station, charge-sheet has been filed. Material which has been seized subsequently by the Ankleshwar police was as a part of investigation by the ANC Mumbai. As laiddown in the case of Amitbhai Anilchandra Shah (supra), there is no concept of joint investigation in Cr.P.C . and as observed the only exception is under Section 219 and 220 Cr.P.C. that a person can be tried in more offence than one, if committed within a period of one year.

12. Learned advocate Mr. Mangukiya for the petitioner placing reliance on the judgment of Babubhai vs. State of Gujarat reported in (2010) 12 SCC 254 submitted that the registration of second FIR by the Ankleshwar Police is impermissible, the Court can call for the record of the Page 30 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined investigation by Ankleshwar police to be handed over to ANC Mumbai, who can check whether that should be included in the charge-sheet filed by them.

13. With regard to 'Test of Sameness' for the subsequent FIR, the function of Court has been observed in para 21 as under;

13.1 Constitutional rights granted under Article 20 and 21 for fair trial and fair investigation has been expressed by the Apex Court, the relevant observation is as under;

13.5 Section 228 of the Cr.P.C. further lays down a safeguard, which can be noted by a bare reading, which classifies that if the Judge is of the opinion that there is ground for presuming the accused has committed the offence, which is not exclusively triable by the Court of Sessions, he "may" frame the charge and transfer the case to the Chief Judicial Magistrate. Thus the provisions under Section 228 Cr.P.C. clarify that it is obligatory on the Sessions Judge to find out whether the case exclusively triable by the Court of Sessions is made out.

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14. Here in this case the FIR which has been filed by the Ankleshwar Police Station itself clarifies that the raid was conducted by ANC, Mumbai. The reply of State of Maharashtra through Mr. Amol Kadam placed on record against the discharge application therein specifies that on 13.08.2022, the search of Infinity and Research and Development factory was along with Ankleshwar Rural Police Station. Learned Sessions Judge was informed about the earlier FIR of the ANC, Mumbai and even was informed about the charge-sheet. As per the reply, the contraband lying in the machine, were not recovered by the ANC, Mumbai.

14.1 ANC, Mumbai through the reply has stated that FIR at Ankleshwar Police Station has no connection with the crime registered by Worli Unit and the application of petitioner for discharge is under misconception and that the crimes are not in respect of the same offence.

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NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 14.2 ANC, Crime Branch, Mumbai has tried to disconnect themselves with the FIR registered at Ankleshwar Rural Police Station but has not clarified as to what has happened about the drugs that was in machines not recovered by them. Whether it has become the part of their charge-sheet at Mumbai or not.

14.3 Mumbai police notes that in connection with the FIR further investigation is yet in progress and has further stated that the offence committed by the applicant - accused registered and investigated by Ankleshwar Police, is serious in nature and each crime is independent in their own sphere. 14.4 Under these rival contentions, it was very much necessary for the learned Sessions Judge to prima facie find out as to whether the contraband which was lying in the machine was made a part of the charge-sheet of the ANC, Mumbai and what was the contraband that was seized by the Ankleshwar police which were in the machines in the factory premises. Page 36 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024

NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 14.5 From the facts of the case from the charge-sheet filed by the Mumbai police and the FIR lodged by the Ankleshwar Rural Police Station it becomes prima facie clear that the Ankleshwar police had recovered the muddamal which was in the 24-24 total 48 trays arranged one upon another in the rack which was seized. The total seizure from the machine was shown as 82 kgs and 387 gms MD Drug in solid form. Charge- sheet of the Mumbai police and FIR of the Ankleshwar police gets connected to the MD Drug which was in the machine at the factory premises.

15. Facts of the case as has been narrated in the FIR and the charge-sheet of the ANC, Mumbai starts from 29/03/2022. According to the Assistant Police Inspector Amol Kadam while patrolling, as per the instructions given by the Senior Officers searching drug peddlers, the team of ANC Worli Unit apprehended accused namely Shamshullah Obaidullah Khan, aged 38 years and seized 250 grams of MD from his Page 37 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined possession, he was interrogated on the spot and he gave information about one person namely Ayub Izhar Ahmed Sheikh, aged 33 years from whom he had bought the said drug. At the instance of the arrested accused No. 1, Shamshullah Obaidullah Khan, the Police team, went to the house of Ayub Izhar Ahmed Sheikh and seized 2 kg 760 grams of MD Drug from his house. Thus, a total of 3.kg 10 grams of MD was seized from both the accused worth Rs. 4,51,50,000/-. Accordingly, a case vide A.N.C. C.R. No. 25/2022, U/sec. 8(c) r/w. 22(c), 29 N.D.P.S. Act, 1985 was registered and both the accused were arrested in the case on the same day. 15.1 On 27/07/2022, on the basis of technical evidence, female accused No. 3 namely Reshma Sanjay Kumar Chandan, aged 49 years, was arrested. Thereafter, during the interrogation of said female accused in police custody, it revealed that she had purchased drug 'MD' from person namely Riyaz Bhai, who is her real brother, and had given it to accused no. 2, Ayub Sheikh who used to transfer the amount Page 38 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined of the said drug to her bank account. Out of this amount, the female accused after taking her share would give the remaining amount to her brother Riyaz by cheque or cash. 15.2 On 02/08/2022, at the instance of the said female accused, the police team laid a trap and nabbed accused no. 4 Riyaz Abdul Sattar Memon, aged 43 years, and arrested him. Thereafter, accused no. 4 was interrogated in police custody wherein he revealed that he has purchased MD drug from a person named P.P. Singh. On 03/08/2022 at the instance of accused no. 4, the police team laid a trap in Dahisar and caught accused no. 5 namely Premprakash Parasnath Singh, age 52 years, Occupation- Project Consultant (Pharma Sector), R/o. 1. New Sai Niketan C.H.S., Flat No. B/108, Nallasopara West, Dist- Palghar, R/o. 2. Flat No. 3501, Northern Heights Building, D-Wing, Dahisar East, Mumbai. 15.3 Subsequently, while in the police custody, on 03/08/2022 accused no. 05- Premprakash Parasnath Singh (P.P.Singh) Page 39 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined agreed to show the place where he had concealed the stock of MD. At his instance, the police team was led to Sitaram Building, Gala no. 01, Chakradhar Nagar, Hanuman Road, Nallasopara (West), Dist Palghar and a seizure of total 701 kg 740 gm of MD drug valued at Rs. 1404 Crores was achieved. During further investigation in the case, it was revealed that, accused no. 5 P.P.Singh is a post graduate and has studied Organic Chemistry and had acquired the knowledge of synthesis of narcotic drug MD by combining different chemicals and chemically processing them. It was also revealed that he was selling the MD drug to suppliers as per their demand. It was also revealed that he was carrying on his drug business by using an app namely Telegram to maintain anonymity. 15.4 On 04/08/2022 arrested accused no. 05, P.P.Singh voluntarily showed the place where he had manufactured the narcotic drug MD, seized from his possession. The police team with Panchas, Chemical Analysis Expert team along with the accused, raided "Namau Chem Pvt. Ltd., Piot no. N 26, N 27, Page 40 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined Ambernath Badlapur Road, Additional MIDC, Ambernath, Dist.- Thane- 421506". A team of police and chemical toxicologists inspected the said place in the presence of Panchas and seized total 959 gms MD, since the Manager of the said factory namely Kiran Ramkrishna Chaudhari, aged 52, Occupation- Service (Manager), R/o. Block No. 09, A Wing, Plot No. 5, Madhuban Building, Shivganga Nagar, Ambarnath East, Dist- Thane 421501 was found to be actively involved in the crime, he came to be arrested on 05/08/2022. He voluntarily disclosed the manufacturing process of MD drug which he had used for synthesis of MD at Namau Chem Pvt. Ltd.

15.4.1 On 11/08/2022, accused No. 05 was thoroughly interrogated. He disclosed that he had also got the narcotic MD drug manufactured from a Chemical factory other than Ambarnath, base factory. Data from cell phone of accused no. 5 was extracted, and WhatsApp chat between accused no. 5 and R. K. Dixit Partner of Infinity Research and Development, Factory revealed that the MD drug was also being Page 41 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined manufactured in the Infinity Research and Development, Factory.

15.5 Subsequently, on 12/08/2022, a team comprising officers and staff of A.N.C. Crime Branch Mumbai and Chemical Analyzer went to Ankleshwar Rural Police Station and after informing the reason, the necessary local police station assistance was sought and thereafter with the help of local police, the team conducted search on 13/08/2023 at Infinity Research and Development situated at Plot No. 2924, Phase III, G.I.D.C., Panoli, Ankleshwar Dist.- Bharuch, State-Gujarat and in the presence of two panchas and Factory Controller of the said Infinity Research and Development Factory namely Ramendrakumar Girirajkumar Dixit, the factory Search was taken on 13/08/2022 between 15.30 hrs to 22.00 hrs. 15.6 During the course of search, a total of 513 kg, 120 grams of narcotic MD, which was packed in 21 white colored nylon sacks was recovered from a 40 by 20-meter room on the Page 42 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined ground floor of the Manufacturing building of the said Infinity Research and Development Factory.

15.7 During the course of search, also 14 transparent plastic bags, weighing total of 397 kg 630 gms which contained hard brown coloured stone type substance was recovered from the Dryer Room which is located in the Manufacturing Building on the first floor of the said Infinity Research and Development Factory.

15.8 And even the unprocessed white powders packed in 26 transparent plastic bags, weighing total of 812 kg 500 gms were recovered from the center of the 40 by 40, meters long and wide hall on the first floor of the Manufacturing Building of the said Infinity Research and Development Factory. Thus, during the course of search of aforesaid premises, the Investigating Agency recovered suspected contraband having total weight of 1723 kg 250 gm from the said factory which is a part of the subject matter of the case under investigation by Page 43 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined the Worli ANC Unit, while keeping intact the drug in process in the machine.

15.9 The Investigating Officer of ANC, Mumbai further states in the affidavit that after completion of the said raid, on 13.08.2022 at about 22.15 hrs., the investigating agency issued, notice bearing O.W. No. 2614/22 dated 13.08.2022 under Section 91 Cr.P.C. to the present petitioner being Director of Infinity Research and Development Factory, for production of documents related to the said Infinity Research and Development Factory. However, he did not reply the same. During the course of investigation, the investigating agency arrested accused Ramendra Kumar Girirajkishor Dixit on 14/08/2023 who was found involved in manufacturing of MD Drug in the aforesaid crime. After completion of the inventory process of the said subject goods, samples were sent to Forensic Scientific Laboratory, Kalina, Mumbai for chemical examination and report. The Report Vide M-L Case No. N- 1379/2022, M.(T). No. 15036/2022 Dated 27/09/2022 was Page 44 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined received by the investigating agency which revealed the presence of MD and hence was positive.

16. After the charge are framed, the person has to be continued as an accused. Proceedings cannot be dropped by the Court. After charge has been framed, the accused has to be put on trial is to be convicted or acquitted, there is no provision for cancelling / dropping the charge. 16.1 The test to determine a prima facie case would naturally depend upon the facts of each case. The words "not sufficient grounds for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out for the prosecution. The word 'ground' in Section 227 Cr.P.C. does not mean a ground for conviction but a ground for putting the accused on trial. 16.2 Here in case at hand, the FIR at Ankleshwar Police Page 45 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined clearly notes that the ANC, Mumbai had raided the factory premises of the petitioner. The reply on behalf of State of Maharashtra towards the discharge application of the present petitioner after detailing the sequence of the event, and facts of the case gives the background under which the FIR was registered at ANC, Mumbai, and how the investigation progressed which ended at the factory premises of the petitioner.

16.3 The reply of Amol Kadamb, Assistant Police Inspector, ANC, Worli Unit, Crime Branch, Mumbai, states that prior to the raid on 13.08.2023 at Infinity Research and Development, on 12.08.2023, that is a day earlier a team comprising officers and staff of the ANC Crime Branch, Mumbai and Chemical Analyzer went to Ankleshwar Rural Police Station and after informing the reason to the Ankleshwar Rural Police Station, the local police station assistance was sought and thereafter with the help of local police the team conducted search and as per reply before the Special Judge of State of Maharashtra Page 46 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined through ANC, Mumbai, during the course of search at the factory premises, the Mumbai investigating agency recovered suspected contraband having total weight of 1723 kg 250 gms which is the subject matter of the case under investigation by the ANC, Mumbai.

16.4 The Mumbai police clarifies in the reply that on 13.08.2022 during the search of Infinity Research and Development factory, the machines, reactors, dryer machines, centrifuge in the said factory were in operation and the production was in progress. Because of the raid, machines were stopped by the operator Kisan Himmatbhai Bhadiyadra. 16.5 Finding the machines at very high temperature and the chemical therein were in inflammable nature being highly risky as was not possible to open the machines and search the machine at the time of raid the investigating officer states in the reply that not a single machine or reactor was opened nor inspected. Thus according to the Investigating Officer from the Page 47 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined safety point of view the charge of the said chemicals were not taken as was not recovered. There is no clarification further as what line of action was adopted by ANC, Mumbai. In view of the reply of ANC, Mumbai the admitted fact is that the chemicals in the machines remained intact. What was the understanding between the two police departments does not come on record. However, it is very obvious that the loose end of the chain left at the factory premises of the petitioner was picked by Ankleshwar police.

16.6 The FIR at Ankleshwar Rural Police station is with the information of the raid by ANC, Mumbai, against that, ANC claims that Ankleshwar Rural Police was with them during their raid on 13.08.2022. If that is so, the fact of the chemicals in the machine kept intact, was very well known to the Ankleshwar police. It is not the case of ANC, Mumbai of any joint investigation on 13.08.2022 of both the police - ANC, Mumbai and Ankleshwar Rural Police Station who both were aware of the chemical in the machine. Page 48 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024

NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined 16.7 Thereafter on 16.08.2022 Ankleshwar police raided the plant. Accordingly, the Ankleshwar police as noted in the report dated 08.04.2024 by V. K. Bhatiya, Police Inspector, Ankleshwar City 'B' Division Police Station, ANC Mumbai had seized 513 kilos of Mephedrone drug.

16.8 According to Ankleshwar Police the seizure was only of 513 kilos of MD drugs by ANC, Mumbai while charge-sheet filed by ANC, Mumbai reflects of 513 kg 120 gms of MD drug and 812 kg 300 gms in processed powder and brown stones weighing 397 kg 630 grms, was seized before the panchas, making it a total of 1723 kgs and 250 grms. And in the charge-sheet at Mumbai, a total of 2428 kg 959 grms of MD is stated to be seized and total estimated international market value is noted as Rs.4657 Core 81 lakh approximately. 16.9 While the seizure of Ankleshwar police is of solid form MD of 82 kgs 387 gms and from the glass line reactor no.5 Page 49 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined attached to ceiling dark brown liquid with peculiar smell of MD in total 33 barrels out which 32 barrels were filled with 40 liters and 1 barrel contain 20 liters in total 33 barrels MD liquid form total 1300 liters and 1 liter worth Rs.1,00,00,000/- (One Crore). Thus the total value of MD was considered as Rs.13,82,38,70,000/-.

17. This Court is of the view that the second FIR at Ankleshwar Rural Police Station is not of a different incident / crime. The muddamal which was seized by the Ankleshwar police was actually seized by the Mumbai police though the same had not been physically recovered. Thus, the only recourse which is available is to merge both the FIRs and the charge-sheet filed by the Ankleshwar police can be considered as supplementary charge-sheet to the offence registered by ANC Mumbai.

18. Resultantly, the FIR at Ankleshwar Police Station being II C. R. No.11199006220751 of 2022 for the offence punishable under Sections 8(c) , 22(c) and 29 of the NDPS Act registered Page 50 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024 NEUTRAL CITATION R/CR.RA/1556/2023 JUDGMENT DATED: 15/07/2024 undefined on 16.08.2022 is ordered to be merged with the charge-sheet of FIR being C.R. No.25 of 2022 registered at Anti Narcotic Cell Warli Unit, Mumbai Crime Branch for the offence punishable under Sections 8(c) , 22(c) and 29 of the Act recorded on 29.03.2022. The charge-sheet filed by the Ankleshwar police be considered as supplementary charge-sheet and the same be made part of the trial by the Investigating Officer of the Mumbai police. The petition is disposed of accordingly. Rule is made absolute to that extent. Direct service is permitted.

(GITA GOPI,J) DRASHTI K. SHUKLA Page 51 of 51 Downloaded on : Fri Jul 26 22:42:19 IST 2024