Subhash v. Inspector of Police Kalamassery & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935** **Crl.Rev.Pet.No. 214 of 2013 () -------------------------------** **AGAINST THE ORDER IN CRL.M.P.NO.658/12 IN SC 481/2011 of ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM DATED 05-12-2012.** **REVISION PETITIONER/ACCUSED NO. 1:** **----------------------------------** **SUBHASH, S/O. RAJAGOPAL, NIRMALAYAM HOUSE, PONOTH ROAD, KALOOR, ELAMKULAM VILLAGE, (ACCUSED NO.1 IN SC 481/2011 OF ADDL. SESSIONS COURT (AD-HOC-II), ERNAKULAM.)** **BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY** **RESPONDENTS/COMPLAINANT(S):** **---------------------------** **1. INSPECTOR OF POLICE, KALAMASSERY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031.** **2. VIPIN, S/O. JACOB, PARATHU HOUSE, PULLAR DESOM, PALLURUTHY KARA, RAMESWARAM VILLAGE, (A2) PIN-682 005.** **3. ALLEN TONEY, S/O. V.J.TONEY, VAZHAKKAL HOSUE, K.V. THOMAS ROAD, PRATHEESHA NAGAR, THOPPUMPADY KARA, RAMESWARAM VILLAGE (A3)- PIN-682005.** **....2** **-: 2 :-** **4. SANEER,** **S/O. NIZAR, PARAPPURATH HOUSE, NEHA RESIDENCY, PALLURUTHY KARA, RAMESWARAM VILLAGE (A4), PIN-682005.** **BY DIRECOTR GENERAL OF PROSECUTION SRI. T. ASAF ALI.** **PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 214 of 2013 -----------------------------------------------------Dated this the 2[nd] day of August, 2013** ## **ORDER** The revision petitioner is the 1[st] accused in S.C.No.481/11 on the files of the Additional Sessions Court (Ad hoc-II), Ernakulam, which arose from Crime No.1374/11 of the Kalamassery Police Station, registered for the offence punishable under Sec.22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act') and the petitioner in Crl.M.P.No.658/12 filed therein. Now, he, along with accused Nos.2 to 4, stands charge sheeted by the 1[st] respondent for the said offence and the court charge yet to be framed. In that context, he filed the above Crl.M.P. under Sec.228 of the Code of Criminal Procedure seeking an order to split up the charge against **Crl.R.P. No. 214 of 2013** -: 2 :- him from other accused and try him separately on the ground that even, according to the prosecution, he has committed a minor offence only under Sec.22(b) of the NDPS Act and not under Sec.22(c) of the NDPS Act, as charge sheeted by the police. After hearing the revision petitioner and the prosecution, the learned Sessions Judge refused to split up charge and consequently the petition was dismissed. That order is under challenge in this revision petition. 2. The prosecution case, in brief, is as follows: On 11/7/2011 at 5 p.m., while C.W.8, the Sub Inspector of Police, Kalamassery Police Station, was on patrol duty, he got an information regarding the alleged offence committed by the accused and others. Then, he, along with police party, proceeded to the place of occurrence and seen the 1[st] accused sitting in front seat of a car and another accused was found sitting in the back seat of that car. Two other accused were found standing near the car leaning on it. The search of the persons revealed that the 1[st] accused **Crl.R.P. No. 214 of 2013** -: 3 :- Subash was in possession 9 ampules of Lupigesic Buprenorphine injection each of 2 ml., the 2[nd] accused Vipin was in possession of 8 such ampules, the 3[rd] accused Alen Toney was in possession of 9 such ampules and the 4[th] accused Saneer was in possession of 7 ampules of Lupigesic Buprenorphine injection. There were 11 such ampules and one Dizepam injection along with 6 syringes were found inside the box of the car. According to the prosecution, all the accused had brought and possessed the aforesaid total quantity of psychotropic substances for the purpose of sale. 3. Sri. Mathai Varkey Muthirenthy, the learned counsel for the revision petitioner, contends that the 1[st] accused has no connection with the other accused in the case and the total quantity of psychotropic substance recovered from the possession of the 1[st] accused is only 9 ampules and that allegation, even if taken at its face value and admitted at its entirety, would disclose an offence punishable under Sec.22 (b) of the NDPS Act, a minor offence under the NDPS Act. All the four accused werein independent possession of the **Crl.R.P. No. 214 of 2013** -: 4 :- psychotropic substance. That being so, it cannot be said that all the accused were in joint possession of the total quantity seized. Each accused, as per the allegation, had committed separate and distinct offence. Therefore, the charge against all the accused cannot be a joint one. Therefore, the charge against 1[st] accused should be split up and he shall be tried separately. The prosecution has no case under Sec.29 of the NDPS Act against the accused. In the absence of an allegation under Sec.29 of the NDPS Act, more than one person cannot be clubbed together, as common intention should come only under Sec.29 of the NDPS Act. 4. In support of the above argument, the learned counsel for the revision petitioner cited the decisions reported in **State of Kerala v. Wolf Hang Kannad Finert** (1995(1) KLT 72); **Amarsingh Ramjibhai Barot v. State of Gujarat** (AIR 2005 SC 4248) and **Muthukumar v. Station House Officer** (2009 (2) KLT 890). 5. Per contra, Sri. T. Asaf Ali, the learned Director ## **Crl.R.P. No. 214 of 2013** -: 5 :- General of Prosecution submits that all the four accused were found committing the alleged offence in the same transaction. So, it can be said that all the accused were in joint possession of the total quantity of psychotropic substance seized. The possession of contraband in each accused cannot be treated independently and separately and distinct offence cannot be constituted. According to the learned Director General of Prosecution, all the accused had brought the aforesaid total quantity of psychotropic substance for the purpose of sale in a single transaction. The second point is that at the stage of framing charge, meticulous consideration of evidence and materials by the court is not required. Instead of it, prima facie case alone need be considered at this stage. The settled law is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at a conclusion. If the court is satisfied that a prima facie case is made out for **Crl.R.P. No. 214 of 2013** -: 6 :- proceeding further, then a charge has to be framed on the basis of the prosecution allegation and documents. Otherwise, it will amount to a mini trial at the stage of framing charge. The third point is that no prejudice will be caused to the revision petitioner by framing a charge for a larger offence, though he contends that the alleged act is only a minor offence. Even if the charge is framed for the offence under Sec.22(c) of the NDPS Act, he can be convicted under Sec.22(b) of the NDPS Act, if the evidence brings home the guilt under Sec.22(b) of the NDPS Act only. 6. I have given anxious consideration to the rival submissions advanced by the learned counsel for the revision petitioner and the learned Director General of Prosecution. In view of the rival contentions, the point to be decided is whether there is any illegality or impropriety in the impugned order refusing to split up and to frame separate charge against the revision petitioner, from the other accused. What are the matters to be considered at the time of framing charge? What is the nature and extent of **Crl.R.P. No. 214 of 2013** -: 7 :- considerations at the time of framing charge? These are the questions that loom large for deciding the point raised above in this revision petition. 7. Let us examine the judicial precedents. In the decision in **State of Orissa v. Debendra Nath Padhi** (AIR 2005 SC 359), on a reference, a Bench comprised of three Judges of the Supreme Court, as regards the matters to be considered at the time of framing charge, held that: “18. .... The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage **Crl.R.P. No. 214 of 2013** -: 8 :- of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean **Crl.R.P. No. 214 of 2013** -: 9 :- opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police”. In **Amit Kapoor v. Ramesh Chander and Another** [2012 (2) KLD 719 (SC)], the Supreme Court cautioned the limits of evaluation of the prosecution case and documents thereunder and held as follows: “ 4. ......... The Judge has to pass thereafter an order either under Section 227 or Section 228of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ...... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two **Crl.R.P. No. 214 of 2013** -: 10 :- provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the **Crl.R.P. No. 214 of 2013** -: 11 :- place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence that it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to **Crl.R.P. No. 214 of 2013** -: 12 :- what will lead to one conclusion or the other is neither possible nor advisable.” 8. The question raised above can be answered as follows: At the time of framing charge, the prosecution documents alone are the inputs to be used for the process of framing charge. The accused against whom the allegations are made has a limited role and the defence case and defensive arguments thereupon are not matters to be considered at the time of framing charge. Certainly, the accused has the right to advance arguments basing on prosecution case. In short, the scope and extent of intervention of the accused in the matter of framing charge is very limited. To sum up, at the stage of framing charge the court is required to look into the materials produced by the prosecution alone for deciding the question whether the particular case is fit for framing charge and whether there are sufficient grounds for framing charge. Neither the defensive arguments nor the documents produced in support of the defence contentions can be considered at this stage. **Crl.R.P. No. 214 of 2013** -: 13 :- 9. Let us have a look at the law relating to framing of charge. Sec.223 of the Cr.P.C. reads as follows: “ **223. What persons may be charged jointly.--** The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of, abetment of, or attempt to commit, such offence; (c) x x x x x x (d) x x x x x x (e) xx x x x x x (f) x x x x x xx (g) x x x x x x” 10. Going by Sec.223 of the Cr.P.C., the statutory mandate is that the persons accused of the same offence committed in the course of the same transaction can be charged and tried together. Therefore, no doubt, to rope in all the accused for the same or single trial under Sec.223(a) **Crl.R.P. No. 214 of 2013** -: 14 :- of the Cr.P.C., all the accused must have committed the offence in the same transaction. 'Same offence' means an offence arising out of the same act or series of acts. Whether the offence committed by each accused is in the same transaction or not is a matter depending upon the entire facts and circumstances that can be brought to light during the course of trial. Whether the different act of more than one accused constitutes single transaction or different and distinct transaction is also a matter to be disclosed by way of trial. Let us see, whether the allegation, prima facie, discloses the fact that all the accused were acting in the same transaction? According to the prosecution, when the police party reached at the spot, the 1[st] accused was sitting in front seat of the car and another accused was sitting in the back seat of the car. Two of the accused were standing near to the car leaning on it. The search of the persons of the accused revealed that the 1[st] accused was in possession of 9 ampules of Lupigesic Buprenorphine injection each of 2 ml., the 2[nd] accused was **Crl.R.P. No. 214 of 2013** -: 15 :- in possession of 8 such ampules, the 3[rd] accused was in possession of 9 such ampules and the 4[th] accused was in possession of 7 ampules of Lupigesic Buprenorphine injection. That apart, 11 such ampules and one Dizepam injection along with 6 syringes were found inside the box of the car in which the two accused were sitting and two others were leaning on it. After the seizure, on interrogation, they admitted that they used to come there to sell narcotic and psychotropic substances to their customers and students of Medical Colleges are their main customers. According to the prosecution, all of them were found engaged in selling of narcotic and psychotropic substances. 11. Had they been engaged in different and distinct transactions, why did they gather together with contraband in hand in and around the same car, in which Dizepam and syringes were kept concealed? Physical presence together with the contraband in hand in and around the same car go a long way to rope in them under the same transaction and on the same fabric. This much material is sufficient at this **Crl.R.P. No. 214 of 2013** -: 16 :- stage to hold a prima facie prosecution case that they were found acting in the same transaction. Certainly, this prima facie satisfaction of the prosecution case is a rebutable one at the instance of the accused during trial. 12. Merely on the reason that the revision petitioner was found possessed a small quantity, the act committed him cannot be separated from the act of the other accused, when the act committed by all the accused cumulatively forms a single transaction, which gives rise to a single offence. The quantity of possession of each accused cannot be carved out isolately and distinctively from the entire facts and incriminating circumstances after discarding the intention and purpose for which they gathered together. The test to be applied is whether the alleged acts of each accused related to one another in point of purpose so as to constitute a single transaction. The aim and object of the gathering is the centre point. 13. Prima facie, it appears, that they were engaged in a single transaction and, in the course of transaction, they **Crl.R.P. No. 214 of 2013** -: 17 :- reached there and they were involved in dealing with narcotic substances brought and possessed jointly by them. I make it clear that this observation is based on uncontroverted prosecution case and document relied on by the prosecution. Of course, it will be subject to the evidence to be brought out in trial by both parties. 14. The next question is whether any kind of prejudice would be caused to the revision petitioner unless the charge is split up and the accused is not tried separately. According to Sec.222(2) of the Cr.P.C. when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. So, even if the revision petitioner is charged with Sec.22(c) of the NDPS Act, a major offence and facts proved would reduce it to a minor offence, he can be convicted of the offence under Sec.22(b) of the NDPS Act a minor offence, though he is not charged with Sec.22(b) of the NDPS Act. So also, no condition is requisite for initiation of proceedings in respect **Crl.R.P. No. 214 of 2013** -: 18 :- of offence under Sec.22(b) of the NDPS Act, more or other than condition requisite for initiation of proceedings under Sec.22(c) of the NDPS Act. So, the conviction under Sec.22 (b) of the NDPS Act will not be hit by Section 222(4) of the Cr.P.C. Thus, no prejudice will be caused, unless the charge is split up and tried separately. 15. The learned counsel for the revision petitioner placed reliance mainly on the decision in **Amarsingh Ramjibhai Barot v. State of Gujarat** (AIR 2005 SC 4248). The above decision was held by the Supreme Court in an appeal against an order passed in revision confirming the conviction and sentence. As we discussed earlier, the scope and extent of considerations, after trial, is entirely different from the evaluation of prosecution materials at the time of framing charge. Therefore, the manner of appreciation made in the decision referred above cannot be imported to the instant case before framing charge. Here a prima facie evaluation, whether there are sufficient grounds to proceed against the accused alone is possible. The above decision **Crl.R.P. No. 214 of 2013** -: 19 :- was rendered after considering the defence contentions and evidence thereon. But here prosecution documents alone are the inputs for consideration. Therefore, I am of the opinion that the factual observations of the Supreme Court made as evidence in a case after conviction cannot be availed of for considering the matter before framing charge, as the yardstick to be used to evaluate the matter is different. That apart, in this decision, joint possession was set up on the basis of conspiracy and in the absence of evidence to prove conspiracy, the Supreme Court set aside the findings of conspiracy and thereby joint possession fell down and the conviction was confirmed on the basis of individual possession. But in the instant case without the aid of conspiracy, joint possession is set up on the basis of direct act or involvement of each accused for the same purpose or achievement in the same transaction. Therefore, in view of the prosecution case, facts of the case in the instant case is different and not comparable with the facts of the case in the above decision. **Crl.R.P. No. 214 of 2013** -: 20 :- 16. Similarly, the decision in **State of Kerala v. Wolf Hang Kannad Finert** (1995 (1) KLT 72) also does not render any assistance to fortify the argument advanced by the revision petitioner. There, facts of the case are entirely different. The accused, two in numbers, were found sitting close to each other in the terminal of the Air Port. The Material Objects were recovered from the bags possessed by each accused. But unlike the facts of the instant case, their destinations were different. One is a German National and the other is an Englishman. The destination of one was to Germany and the other was to England. In that context, the Court held that merely on the reason that they were found sitting together, it cannot be held that they were acting in a single transaction. But, here all the accused were found together and actively engaging in the same transaction. 17. Another argument advanced by the learned counsel is that, in the absence of allegation of either abetting or conspiracy under Sec.29 of the NDPS Act, they **Crl.R.P. No. 214 of 2013** -: 21 :- cannot be tried jointly under a single charge. But I am unable to accept the said argument as the same is opposed to Sec.223 of the Cr.P.C. According to Sec.223 of the Cr.P.C., persons accused of the same offence committed in the course of the same transaction can be charged and tried together. The allegation of either abetting or conspiracy are not a condition precedent for prosecuting more than one accused together under a single charge. If two or more persons are found physically present and acting for the fulfilment or achievement of the same purpose in a single transaction, those persons can be prosecuted under the same charge without the aid of abetting or conspiracy under Sec.29 of the NDPS Act. Here, the prosecution case clearly comes under Sec.223(1) of the Cr.P.C. Therefore, I reject the above contention also. 18. I find that the ground raised in the petition seeking splitting up of the charge is only a defence version incompatible with the prosecution case and documents thereunder and the same doesn't deserve to be considered **Crl.R.P. No. 214 of 2013** -: 22 :- at the time of framing charge. There is no illegality or impropriety in the impugned order under challenge. The impugned order is justifiable at all points, factually as well as legally. 19. In the result, the order under challenge is confirmed and this revision petition is dismissed. The learned Sessions Judge shall dispose of the case after trial untrammelled by any of the the observations made above. Needless to say, at the time of final hearing, the revision petitioner will be at liberty to raise all the contentions, including the grounds raised in the petition for splitting up the charge. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge