- (1.) THESE five criminal misc. petitions lend themselves support to dispose off by a common order, having been filed by three petitioners, namely Mahavir Prasad, Mohd. Nasir s/o Mohd. Hussain & Mohd. Nasir s/o Haji Abbas in different sets seeking relief for grant of bail and quashing criminal proceedings in cr. case No. 140/80 arising out of F. I. R. No. 7/89 of police station Karanpur.
(2.) BRIEF facts giving rise to these petitions are that on 17th January, 1989 at about 9 P. M. the Superintendent of Police, Sri Ganganagar, gave a written direction to the Assistant Superintendent of Police (Circle Officer), Sri Karanpur informing that near at about indo-Pak border village Bhutiwala 24-0, a large consignment of heroin apart from gold is likely to be smuggled in India. The police party is alleged to have accordingly made arrangements so as to keep strict reconnaissance on the border; and at about 11 P. M the Police parly laid by Dalpat Singh Dinkar Assistant Superintendent of Police (Circle Officer), Sri Karanpur accosted six persons near village Bhutiwala 24-0 coming from the canal side. These six persons are alleged to have been carrying packets with them. Incharge of one of the party, Shri Khinv Singh accosted them and challenged to stop, with the result, those persons tried to run away after throwing their packets. Four persons are said to have been trying to be successful so as to escape, yet* two persons were over-powered - one of them disclosed his name as Daljit Singh and other person named himself to be Hardayal Singh s/o Chanan Singh who subsequently is also transpired operated under the false name of Pradeep Kumar, On the personal search of Hardayal Singh alias Pradeep Kumar 15 packets of heroin and 125 gold biscuits were found on his person in a bag and bandolian; and similarly on Daljit Singh's search 10 packets of heroin and 125 gold biscuits were found on his person in the bag and bandolian. Four persons who ran away are alleged to have left three bags containing 15 packets each and one bag containing 13 packets of heroin. All these goods were, taken into possession. Then, F. I. R. No. 7/89 was chalked out. After arrest of the afore-named two persons, a message was sent by the Border Security Force and Rajasthan Police, Sri Karanpur to the Deputy Collector (Preventive), Jaipur who in his turn passed the information to the Narcotics Control Bureau Delhi Zonal Unit, to the effect that the B. S. F. & Rajasthan Police has seized 250 gold biscuits & 103 Kg of heroin at Sri Karanpur on 17. 1. 1989. From the challan papers it also transpired that during questioning, Pradip Kumar stated that he was to deliver the heroin and gold to a person having telephone No. 7112286 in Delhi. After inquiry, it was found that the said telephone number was installed at B-F-8 Mohan Palace, Saraswati Vihar, Pritampura which was searched resulting in recovery of Indian Currency to the tune of Rs. 1,23,97,000/ -. On further investigation it was revealed that Pradeep Kumar's real name was Hardayal Singh who used to have one Maruti Car and two trucks, and who is alleged to have been smuggling heroin and gold for last two years. Further it was revealed that so far as the gold is concerned, Hardayal Singh was supplying the same to one Ashok Kumar having telephone No. 7112286, whereas the heroin is said to have been supplying by Hardayal Singh to a Pak national named Nasir living in Bombay at extended stay with one Indian Muslim named Baba, through his car and trucks. The three out of six parsons who are said to have run away from the site were found to be Sukhvinder Singh, Jasbir Singh & Raman Lamba. The residential premises of Ashvni Kumar and Vijay Kumar were also searched but nothing incriminating was found. In the report dated 22. 1. 1989, it is alleged that enquiries were also made about the resident of Ashok Kumar where the telephone No. 263925 is alleged to have been installed and it was found that the occupant of this telephone number is one Anil Kumar resident of 7/26 Dariya Ganj, New Delhi who was also subjected to search with nil recovery. Anil Kumar Agrawal is said to have been fitting in the physical description of Ashok Kumar who is the alleged person to whom the delivery of the seized gold and heroin was to be given. During the investigation, Rajendra & Anil sons of petitioner Mahavir Prasad were taken to Ranjit hotel at Delhi and investigation was made and it is alleged, these two persons (Anil & Rajendra) gave a similar voluntary statement. During the search, on the person of Hardayal Singh, a slip was found on which two telephone numbers i. e. 263925 and 266951 are alleged to have been noted apart from mentioning of the word, 'patla' on the slip. On the basis of this slip, Mahavir Prasad was arrested and is sought to be connected with various offences. As per the challan papers, as a result of investigation, the prosecution has come out with a case that Hardayal Singh, on inquiry, gave a statement that telephone numbers were given to him by the persons who delivered him consignment i e. one Liyakat of Pakistan; and that heroin was to be delivered to Baba and Nasir. According to the challan papers, Mahavir Prasad is known as 'patla' and he is said to have admitted that he deals in smuggled gold. The investigation is alleged to have further revealed that telephone No. 263925 is the residential number of Mahavir Prasad and 266951 is the shop telephone number of Mahavir Prasad and that heroin was to be delivered to Baba alias Ahsan Khan and Mohd. Nasir to Bombay. Ahsan Khan was interrogated and he admitted to have been dealing in illegal trafficking of the drugs and Mohd. Nasir is also said to have admitted that he was to receive 103 Kg. of heroin. After usual investigation, the challan has been filed against the petitioners for offences under Sections 3, 21, 23, 25 & 29 of the Narcotics Drugs and Psychotropic Substances Act as well as section 112 of the Customs Act, The case was fixed for passing the order of commitment, on 5. 6. 89 but the same has not yet been passed upto 12. 7. 89 Bail petitions of the petitioners have been dismissed by the learned Sessions Judge Hence these petitions.
(3.) BEFORE going into merits of the case, I would like to mention that after filing of the challan, the Magistrate before whom it was filed is yet to decide as to whether th case is to be committed in the Court of Sessions under Section 209, Cr. P. C, In case, the Magistrate so decides then the case is to be committed to the Court of Sessions and die Sessions Court to whom the case is to be committee), shall consider as to whether any charge is to be framed against the accused -petitioners or they are to be discharged under Section 227, Cr. P. C. In case the Sessions Court decides that the charge is to be framed then after framing of the charge, the Sessions Judge shall record the plea of the petitioners and in case the accused petitioners do rot plead guilty the?) the evidence of the prosecution is to be recorded and after concluding the trial and hearing the parties, the Sessions Judge may either acquit or convict the accused. In view of the procedure laid down for trial of Sessions case, it is clear that the accused persons shall get atleast two chances, before the Magistrate and the Sessions Judge to plead that no case is made out against them and in the absence of any materia!, they should be discharged. . Before me, learned counsel for the petitioners named above have challenged the accusation against the present petitioners which has been levelled by the prosecution by filings challan against them. ;