SOBHAGMAL JAIN, J. - (1.) THIS petition under section 482,cr. P. C. has been filed by Avtar Singh accused for quashing the charge framed against him by the Sessions Judge, Bikaner, for the offence under section 21 read with sec. 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the Act') The accusations against the petitioner are that on Sept. 21, 1939, he took the co-accusad Major Singh and others from Jalandhar to Pawli, where 320 Kilograms of Heroin brought from Pakistan was recovered and that he was to carry the same, in Maruti car D. B. C. 6496, onwards to enable the co-accused to sell the same.
(2.) THE case of the prosecution, in short, was that the petitioner was the driver of the aforesaid Maruti Car No. D. B. C. 6496. This car was seized by the police on September 23, 1988 from Gharsana New Mandi. As per the prosecution, on Sept. 20, 1988, Shri Pritam Singh, Station House Officer, Police Station Pungal, on some information furnished to him by Maloo Ram, Assistant Sub-Inspector of Police, formed an interceptive party consisting of the B. S. F. and police officials and followed the tracks of men and camel on the Indo-Pak border which leading him to village Chok-4 Pawli. THE track stopped there. THE Station House Officer surrounded the village and halted during the night there. On the next morning i. e. on September 21, 1988, he found that a jeep R. J. U. 6852 was being loaded with bags in the agricultural field of Nicthhtar Singh. Eight persons, were involved in the loading operation. Seeing the police party, three persons, namely, Nishansingh, Ganni alias Gurnam Singh and Balkar Singh fled away while the remaining five namely, Major Singh, Gurnam Singh, Nichhatar Singh, Balvindar Singh and Kundanlal were apprehended at the spot. Kundan Lal was the driver of the jeep. Bags containing 311 packets of heroin were seized at the spot. A case under section 21 and 22 of the Act was registered against the accused. During investigation, it transpired that the packets of heroin were brought to Pawli from Pakistan on camels by Ganni and Sareef and it was to be taken to Bombay, to be delivered to Raheesh Khan, a Pak national at the Minerwa Hotel, Bombay. THE petitioner is not one of the eight found involved in loading the heroin in the jeep. He is not the driver of the jeep used to carry the heroin from Pawli. He was the driver of Maruti Car No D. B. C. 6496 which was found in village Gharsana New Mandi and was seized from there. THE prosecution case against him, as shown in the charge, is that he brought Major Singh and others from Jalandhar to Pawli and was engaged to carry them back in the Maruti car. Before I proceed to consider the case against the petitioner, it may be pointed out that a petition under section 482 Cr. P. C. was filed by Rahish alias Khalid for quashing the charge framed against him That petition was allowed by N. C. Sharma, J. on April 6, 1989. The chage framed against him under section 29 of the Act was quashed. I have heard Shri M. L. Garg, counsel for the petitioner and Shri Vimal Mathur, Public Prosecutor for the State. Shri Garg, counsel for the petitioner, has contended that the allegations set out in the charge sheet and the evidence sought to be produced in support of the same do not disclose even a prima facie case to put the accused to trial for the offences under section 21 read with section 29 of the Act. , It is argued that it is a clear case of harassment of the accused and as an abuse of the process of the Court Section 21 and 29 of the Act, for which the accused is sought to be tried are set out below : " 21. Punishment for contravention in relation to manufactured drugs and preparations-whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufacutres possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the court may, for reasons to be recorded in the judgement, impose a fine exceeding two lakh rupees. " xxx xxx xxx xxx xxx "29. Punishment for abetment and criminal conspiracy: (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which: (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal condition required to constitue it an offence punishable under this Chapter, if committed within India. " To invoke the provisions of Section 21, the prosecution has to show that the accused was in possession of contraband products or was engaged in the manufacture sale, transport or import thereof. The provisions of Section 29 will be attracted when the accused is found to abet or is a party to the criminal conspiracy to commit an offence ounishable under Chapter IV of the Act. Having gone through the allegations made in the challan and the evidence sought to be relied upon by the prosecution, I find force in the submissions made by the counsel for the petitioner. There is no material, whatsoever, on record, to show even prima facie that the accused was in any way found engaged in the manufacture, sale, purchase, import or transport of contraband product. It is not the prosecution case that the packets of the heroin recovered from the jeep in Pawli came to be possessed by the accused at any time. There is no evidence even to suggest that the accused went to Pawli, at all, in the company of the other co-accused. He and the Maruti both were found at Gharsana, which is at a distance of 25 K. M. from Pawli. The packets of heroin did not reach Gharsana and it cannot, therefore, be said that the petitioner was in any way connected with the same. Obviously, therefore, the offence under section 21 of the Act is not disclosed even prima facie against him.
(3.) AS regards the offence under section 29 the prosecution has to show that the accused was a party to the conspiracy to commit an offence under Chapter IV of the Act. The gist of the offence of criminal conspiracy is the existence of an agreement between two or more persons to commit an offence. True, it is difficult to get direct evidence of an agreement between the parties and, therefore, the Courts held that the charge of conspiracy can be proved by circumstantial evidence. But then, the circumstances relied upon must be con- elusive in nature and satisfy the test laid down by the Supreme Court in respect of circumstantial evidence. In other words the circumstances must be consistent and consistent only with the hypothesis of the guilt of the accused. They should exclude the possibility of the accused being innocent. In the present case the allegations concerning the existence of the conspiracy, as mentioned in the charge sheet, are to the effect that- ************ It would be seen that the conspiracy was hatched by the nine persons named above and significantly the name of the accused is not amongst these nine. The only part assigned to the petitioner is that he was the driver of the Maruti Car No. DBC 6496 which was found in Gharsana New Mandi and had been used to bring Major Singh and others upto Gharsana. I specifically asked the Public Prosecutor to point out any piece of evidence to show how the accused was a party to the conspiracy or was involved in the offence. The learned Public Prosecutor was unable to show me any material to found the charge against the accused. The only statement, to which my attention was drawn is the statement of Maloo Ram, A. S. I. Police, who has stated that some Hotelwala had informed him that Avtar Singh had admitted before the Hotelwala that he had brought Major Singh and Gurnam Singh from Malot in the car which had been hired by them and that they intended to carry goods received from Pakistan to Punjab. Firstly, this hardly implicates the accused in The offence under section 21 read with Section 29 of the Act. It does not show that the accused ever come to possess the pockets of heroin. It is also not shown that the Maruti Car was ever used for transporting the same. In fact the Maruti car was found in a different village, about a distance of 25 Kilometers from the place where the heroin was recovered. Further the heroin was being loaded in the jeep, the driver of which was Kundanlal. The Maruti was never taken to Pawli-4 chak. It remained at Gharsana New Mandi, where the packets of heroin did not reach. Shri Mallu Ram has not disclosed the name of the Hotetwala. The Hotetwala has not been named or included in the list of witnesses intended to be examined by the prosecution. What the Hotetwala said to Mallu Ram A. S. I. is mere hearsay and it cannot provide a promise to put the accused to trial for the offence under section 21 read with section 29 of the Act. In my opinion, therefore, the charge framed against the accused is based on no material. It would be a sheer harassment of the accused and an abuse of the process of the Court if he is allowed to be tried for the offence under section 21 read with section 29 of the Act. The present proceedings against him appears to be wholly unjustified. Accordingly I allow the petition under section 482 Cr. P. C. and quash the order of the Sessions Judge, Bikaner, dated January 18, 1989, directing framing of the charge against the petitioner, Avtar Singh for the offence under section 21 read with section 29 of the Act. The charge framed against him for the said offence is also quashed. . ;