Court No. - 83
Case :- APPLICATION U/S 482 No. - 4825 of 2021 Applicant :- Margoob Husain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Furquan Ahmad (Alvi) Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Furgaun Ahmad (Alvi), learned counsel for applicant and learned A.G.A. for State.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging charge sheet dated 30.12.2018 submitted in Case Crime No.1020 of 2018 under Sections 21, 22, 25, 26 NDPS Act and Sections 419, 420, 467, 468 I.P.C., P.S. Katghar, District-Moradabad, as well as entire proceedings of consequential Sessions Trial No.983 of 2020 (State Vs. Margoob Husain) under Sections 21, 22, 25, 26 NDPS Act and Sections 419, 420, I.P.C., P.S. Katghar, District-Moradabad, now pending in the court of Additional District and Sessions Judge, Court No.7, Moradabad.
4. Mr. Furgaun Ahmad (Alvi), learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. It is then contended that applicant is a valid Drug Licence Holder. As such, applicant has not committed the alleged offence. Material recovered from the business premises of applicant are manufactured products and fall in the category of scheduled drugs. Sample of seized material was sent for Chemical Analysis and no adulteration was found in same. As per report of Chief Chemical Annalist, seized product conform to declared formula. It is thus urged that seized goods do not belong to the category of N.D.P.S. substance.
5. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that subsequent to F.I.R. dated 26.09.2018, Investigating Officer investigated concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by Investigating Officer during course of investigation, Investigating Officer opined to submit a charge- sheet. In the charge-sheet so submitted as many as ten prosecution witnesses have been nominated. As such, it cannot be said at this stage that prosecution of applicant is false or there is no material to support the prosecution of applicant.
6. It is then contended that at the time of taking cognizance/summoning of an accused, Court is not required to weigh the evidence on record but has to only record a prima- facie satisfication. In support of above, reliance is placed upon paragraph 37 of the judgement in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 wherein following has been observed:
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
7. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of material brought on record, this Court finds that the issue as to whether scheduled drugs fall within the category of N.D.P.S. substance or not, has been considered by a Division Bench of this Court in Ashok Kumar Vs. Union of India and others, 2015 (2) ALJ 193, (Hemant Kumar Saini Vs. Union of India and others), 2021 SCC on line Allahabad 497, Judgement dated 03.04.2015 delivered in M. B. No. 8953 of 2013 (Ram Dayal Mathur Vs. Union of India). Judgement rendered in Ashok Kumar (supra) is pending consideration before Supreme Court.
8. For the facts noted above, matter requires consideration.
9. Notice on behalf of opposite party-1 has been accepted by learned A.G.A.
10. Issue notice to opposite party-2.
11. All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.
12. List for admission before appropriate Bench on the date fixed in the notice.
13. Until further orders of this Court, further proceedings of Sessions Trial No.983 of 2020 (State Vs. Margoob Husain) under Sections 21, 22, 25, 26 NDPS Act and Sections 419, 420, I.P.C., P.S. Katghar, District-Moradabad, pending in the court of Additional District and Sessions Judge, Court No.7, Moradabad, shall remain stayed.
Order Date :- 21.9.2021/YK