- (1.) THIS is a petition by Khalid alias Rasheed under section 482 of the Code of Criminal Procedure for quashing the order of Sessions Judge, Bikaner dated January 18, 1989 passed in Sessions case No. 1 of 1989 (State Vs. Major Singh) whereby he directed framing of charge of criminal conspiracy under section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to commit an offence under Chapter IV of the said Act.
(2.) FACTS in brief are that according to the prosecution Malluram Assistant Sub Inspector gave an information on September 20, 1988 regarding some tracks of camel and two persons having been found near Indo Pak international border. On the evening of that day the Station House Officer, Poongal reached Chak 4 Pawli and found tracks going upto that place. This created suspicion in his mind that the camel and the two persons were in the same Abadi. The S. H. O. and the Police party therefore, surrounded this Chak and on the morning of September 21, 1988, they further found tracks in the fields of nursery peaching towards a Kotha on the agricultural land of Nichhatarsingh. The S. H. O, found that a blue jeep was standing there and eight persons were loading some bags in the jeep. The S. H. O divided the Police party into two parts and reached near the place. The police people knew from before Nishan singh and Gami alias Gurnamsingh. They and one more person who were loading the bags, seeing the police, ran away, from the spot and could not be apprehended. Five persons were caught hold of by the police party and they were Majorsingh, Gurnamsingh alias Baldeosingh, the jeep driver Kundanlal, Nichhatarsingh and Balvinder singh. Two bags were lying inside the jeep and two other bags were lying near the jeep. In all 311 packets were found. The packets were opened and smelt. It was found to be brown coloured powder and Majorsingh also told that the third person who ran away was Balkarsingh. These 311 packets were weighed and samples were taken. The above named five persons were arrested. At the time of search of Majorsingh, a diary was found in his possession in which address of khalid and the petitioner was found written. Majorsingh was taken to the house of Superintendent of Police. Bikaner by Hanumandutt Circle Officer, Bikaner. The Superintendent of Police had talks with Majorsingh. Then Majorsingh dialed the petitioner who was staying in Minerva Hotel Bombay by phone No. 393911. After the phone was connected at the hotel, Major Singh told the Manager of the hottel to connect him with the petitioner who was staying in room No. 8 of the hotel. The Manager of the hotel called the petitioner and Majorsingh talked with him on phone. Majorsingh told him on phone about his welfare and further told that the goods had arrived and he himself would be reaching within 2 or 3 days. From the side of the petitioner welfare of Majorsingh was asked and the latter was asked to reach early. It also appears that a VIP attache was also seized from Maruti Car No. DCB 6496. On this attache, name of Major Singhwas written. Apart from some clothes a letter written in Urdu on lined paper was also found in the attache. The contents of that letter show that it was written by one Jamshed to Khalid. In this letter Jamshed had referred to his talks with Khalid on phone. He also wrote that Majorsingh agent of Khalid had met the man of Jamshed named Shareef. It was also mentioned that 311 packets of the goods had reached the house of Jogendersingh at Pawli which was a decided place on the night intervening 19th and 20th. Then it was written that Shareef and Garni will deliver this goods to Rayees at Minerva Hotel Bombay. When they reached Bombay with the goods, it was the responsibility of Rayees to settle* the accounts. These are only three pieces of evidence on the basis of which challan was filed by the police against the petitioner Khalid alias Rasheed alias Rayees. On the basis of the documents filed along with the challan. , the Sessions Judge, Bikaner framed a charge of criminal conspiracy under section 29 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 for the commission of offence under Chapter IV of the said Act against the petitioner which the petitioner is seeking to get quashed by the present petition under section 482 Cr. P. C. It was contended by Mr. M. M. Singhvi appearing for the petitioner that the alleged telephonic talk by the co-accused Majorsingh with the petitioner and relied upon by the prosecution was firstly, inadmissible in evidence and secondly, it does not show that the petitioner entered into any conspiracy with the other co-accused persons. It was urged by him that the process of the court has been abused so far as the petitioner is concerned and, therefore, to secure the ends of justice the order of the Sessions Judge, Bikaner framing charge against the petitioner and all proceedings sought to be undertaken in pursuance thereof be set aside and quashed. The learned Public Prosecutor relied upon the above three pieces of circumstantial evidence as against the petitioner. It is trite that jurisdiction under section 482 of the Code of Criminal Procedure which saves the inherent power of the High Court, to make such orders as be necessary to prevent the abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising the jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely 10 be established by the evidence or not That is, the function of the trial court when evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the initial stage of trial of an offence, the High Court is guided by the allegation, whether those allegations set out in the complaint or the charge sheet do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstance, amount to an abuse of she process of the court or not. It is manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the fact of the complaint or the papers accompanying the same, no offence is constituted, In other words, the test is that taking the allegations and the complaint as they are without adding or substracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its power under section 482 of the Code of Criminal Procedure. The law thus is that we have to see whether there is some legal evidence at all in support of the prosecution. The above proposition of law is well settled by a series of decisions in Talab Haji Hussain Vs. Madhukarparashotam Mandkar (1), R. P. Kapoor Vs State of Punjab (2), Madhu Limiye Vs. State Maha-rashtra (3), State of Karnataka Vs. L. Muniswamy (4), Dr. Sharda Prasad Sinha Vs. State of Bihar (5), Municipal Corporation of Delhi Vs. R. K. Rohtagi (6), Municipal Corporation of Delhi Vs. P. D. Jhunjimwala (7), State of Punjab Vs. Devindra (8) and State of Bihar Vs. Murad Ali Khan (9 ). The law of conspiracy in India is on line with the English Law, by making the overt act un-essential when the conspiracy is to commit any punishable offence. The English Law on this matter is well settled. Russel on Crime 12th Edition Vol. I page 202 stated. "the gist of offence of conspiracy then lies, not in doing the act or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or even discussing, of the plan is not, per se, enough. " Glanville Williams in the Criminal Law" (Second Edition) 382 quoted an illustration in which the accused was acquitted of conspiracy because there was no agreement for "concert of action", agreement to "cooperate". Ceicridge J. , while summing up the case to Jury, in Regina Vs. Murthy (10) said that "if you find that these two persons pursued by their acts the same object, often by some means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourself is "had they this common design, and did they pursue it by these common means the design being unlawful". Thus entering into an agreement by two or more persons to do any illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy
(3.) GENERALLY, a conspiracy is hatched in secrecy and it may be difficult to aduce direct evidence of the same. The prosecution often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must inquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them co-conspirators but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be. Gerald Orchard University of Caterbury Newzeeland Criminal Law Review, 1974, 297 at p. 299 explains the limited nature of this proposition -Although it is not in doubt that, the offence requires some physical manifesta-tion of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties actually came together and agreed in terms to pursue the unlawfull object; there need never have been an express verbal agreement, it being sufficient that there was a tacit understanding between the conspirators as to what should be done. The relevant act or conduct of the parties must be conscientious and clear to mark their concurrence to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must be strictly on guard. " From an analysis of section 10 of the Evidence Act it will be seen that section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. " ;