- (1.) SAROJ Bala, J. This application under Section 482, Cr. P. C. has been moved for quashing of the criminal proceedings of case crime No. 252 of 2001 (S. T. No. 599 of 2006) State v. Kalim Ahmed, under Section 489 (C), I. P. C. P. S. Chauk District Varanasi pending before the Court of Additional Sessions Judge, Court No. 1, Varanasi.
(2.) HEARD Shri S. T. Siddiqui, learned Counsel for the applicant, learned A. G. A. and have perused the record. The factual matrix of case is that the applicant's residential premises No. CK 39/33 situated at Mohalla Kundi Ghar Tola were raided by the Sub-inspectors Ram Murti Singh, Lal Bahadur Malvia and other police force on 2-11-2001 at 11. 30 p. m. in pursuance of prior information about illegal trafficking of counterfeit currency notes. During the search the recovery of a plastic bag was made from the bathroom of applicant's premises in which woods were stored. On opening the plastic bag 100 currency notes of Rs. 500 denomination, 156 plain Kisan Vikas Patra and five packets of Heroin were seized. The case crime No. 252 of 2001 under Section 489 (C), I. P. C. and case crime No. 253 of 2001 under Section 8/21 of N. D. P. S. Act were registered at P. S. Chauk District Varanasi on the basis of one and the same recovery memo. The applicant was charged and tried for the offence under Section 8/21 of N. D. P. S. Act in Criminal Case No. 93 of 2002 arising out of crime No. 252 of 2001 and was acquitted by the judgment and order dated 1-4-2003 passed by the Special Judge (N. D. P. S.) Act Varanasi. The learned Counsel for the applicant submitted that recovery of contraband and fake currency was made from one and the same place and plastic bag and evidence in relation to the recovery having been disbelieved in Criminal Case No. 93 of 2002, the principle of stare decisis is applicable to the facts of the present case. The learned Counsel in support of his arguments placed reliance on the decisions in Prem Kumar alias Munna Rai and Anr. v. State of U. P. and Anr. , 2005 (3) JIC 781 (All), Smt. Zahrun Nisa v. State of U. P. and Anr. , 2005 (3) JIC 505 (All), Smt. Begum and Ors. v. State of U. P. and Anr. , 2005 (3) JIC 253 (All), Sanju alias Sanjeev Kumar v. State of U. P. and Anr. , 2005 (3) JIC 243 (All), Sant Ram Master alias Santram Jaiswal v. State of U. P. , 2005 (3) JIC 391 (All) (LB), Vijay Sahagal v. State of U. P. and Ors. , 2006 (1) JIC 145 (All), wherein it was held that where two persons are prosecuted though separately for the same charge for the offences in the same transaction and on the basis of same evidence, and if one of them is acquitted it will create an anomalous position if the other person is convicted.
(3.) THE learned A. G. A. submitted that applicant has been acquitted in Criminal Case No. 93 of 2002 on the ground of non-compliance of the mandatory provisions of N. D. P. S. Act. THE learned Counsel contended that trial in the present case has commenced after the framing of charges. THE submission of the learned A. G. A. was that order of framing of charge having not been challenged has attained finality. According to the learned Counsel the principle of stare decisis is not applicable to the present case as applicant is not a co-accused and case crime number of the present offence is different. I have taken into consideration the submissions advanced on behalf of both the parties, perused the judgment dated 1-4-2003, recovery memo and charge-sheet of both the case crime numbers.;