TMI Blog2008 (1) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the order dated 30-11-2002 passed by the Additional Sessions Judge, Akola in Sessions Trial No. 170/2001 discharging the accused. 2. It seems that the Deputy Commissioner, Central Excise, Amravati Division, Amravati, filed a complaint against the accused alleging charges under Sections 29 r/w B(c) and 22 of the N.D.P.S 1985; Section 22 r/w B(c) of the N.D.P.S. Act, 1985 and Sections 21, 23, 25, 26 and 27-A r/w 29 of the N.D.P.S. Act, 1985. According to the complainant, it was the accused who provided funds and material for manufacturing mandrax tablets at Amravati and Akola. In the search conducted on 23/24th November, 1995 at Amravati and 24th November, 1995 at Akola, raw materials for manufacturing mandrax tablets, machineries, mandrax tablets and cash of lakhs of rupees was recovered. Two charge sheets were filed against 10 accused persons. Accused Nos. 1 to 6 were convicted and the rest were acquitted. In appeals the High Court confirmed the conviction as well as acquittal. It is not disputed that no further appeal was filed before the Apex Court and the decision of the High Court became final. 3. On the basis of confessional statements of accused No. 8 Kant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arishad v. Dilip Nathumal Chordia (1989) 1 SCC 715 cautioned the High Courts to be loathe in interfering at the stage of framing the charges against the accused. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are Courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed. 9. Dealing with the scope of Ss. 227 and 288 of the Code and the limitations imposed upon the court at the initial stage of framing the charge, this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 : (1977Q Cr.L.J. 1606 held (Para 4):- "Reading the two provisions together in juxta-position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Supdt. and Remembrancer of Legal Affairs, West Benral v. Anil Kumar Bhunja, AIR 1980 SC 52 : (1979 Cri.L.J. 1390), reminded the Courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of a strong suspicion founded on materials before it, the court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them. Relying upon its earlier judgments in Ramesh Singh (AIR 1977 SC 2018: 1977 Cri.L.J. 1606) and Anil Kuinar Bhunja's ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formally completing the Procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself." We will have to consider the submissions made by the learned counsel for the parties in the light of the above decisions. 8. It was urged by Shri Loney that the confessional statements made by accused no.8 Kantilal and accused no.9 Kasam are relevant under Section 10 of the Indian Evidence Act as they form prima facie material against the accused to show that the accused was involved in the conspiracy of manufacturing mandrax tablets. Shri Loney submitted that this aspect has not been considered by the learned trial Judge while passing the order of discharge. This was also not considered by the learned Judge of this Court while releasing the accused on bail (2002 ALL MR (Cri.) 72). In this respect Shri Loney relied on the observations made in State of Maharashtra v. Damu - (2000) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pavunny v. Assistant Collector (HQ), Central Excise Collectorate , Cochin - 1997 (90) E.L.T. 241 (S.C.) = (1997) 3 Supreme Court Cases 721: "There is no prohibition under the Evidence Act to rely upon a retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement was voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could he relied upon to base the conviction. However, prudence and practice req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to their common intention" are wider than the words used in English Law, ( vide Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378 : (AIR 1965 SC 682 : 1965 (1) Cri LJ 608). 111. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlines in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10 which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10. 114. Whether a particular accused had ceased to be a conspirator or not, at any point of time, is a matter which can be decided on the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reference to their common intention" are wider than the words used in English Law (vide Sardar Sardul Singh Caveeshaar v. State of Maharashtra)." 35. "But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10." 11. In view of the interpretation of Section 10 of the Evidence Act by the Apex Court, it would be seen that in the present case the confessional statements of accused no. 8 and accused no. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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