Mushtaq Ahmad Wani vs Union Of India

Rajnesh Oswal, J

The petitioner is aggrieved of the complaint, titled, Union of India through Narcotics Control Bureau (NCB) vs. Abdul Qayoom Wani and another, as also the order dated 03.05.2019 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) by virtue of which the petitioner has been declared as absconder and as such is seeking quashing of the complaint as well as the aforesaid order on the ground that in the complaint filed by the respondent, no role has been attributed to the petitioner vis-a-vis commission of any offence, that could result in framing of charge against the petitioner, more particularly when no incriminating material has been recovered from the possession of the petitioner. It is also stated that the only allegation and evidence relied upon by the prosecution against the petitioner is the alleged confessional statement of petitioner’s brother, namely, Abdul Qayoom Wani but the petitioner cannot be prosecuted on the basis of said statement. It is also stated that the plea of discharge on behalf of the petitioner has not found favour with the learned trial court, who has overlooked it and vide order dated 03.05.2019 has declared the petitioner as absconder.

Mr. Rizwan-ul-Zaman, learned counsel for the petitioner vehemently argued that there is no evidence on record so as to warrant the prosecution of the petitioner, particularly when the statement made by the brother of the petitioner cannot be relied upon in terms of the judgment of the Apex Court in Toofan Singh reported in (2021) 4 SCC 1. He further drew the attention of this Court towards the statements of the witnesses, namely, CWs K. P. Tiwari, Superintendent, NCB and B. Bhardwaj recorded during the course of trial. He also placed reliance upon the judgment of this court in case titled “Aejaz Ismail Sayed versus Union of India,” decided on 13.08.2021.

Per contra, Vishal Sharma, learned ASGI vehemently argued that the petitioner has been declared as absconder as despite various efforts made for procuring the attendance of the petitioner during the course of the investigation, he did not participate in the investigation. Mr. Sharma further submitted that the plea raised by the petitioner that the statement of the co-accused recorded under section 67 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short the NDPS Ac) cannot be used against the other accused, cannot be considered at this stage, particularly when the petitioner has been declared as absconder and he can appear before the learned trial court and project his grievances there.

Heard and perused the scanned record submitted by the learned trial court pursuant to the order of this Court dated 03.11.2021.

The brief facts necessary for the disposal of the present petition are that a complaint under sections 8, 21, 28, 29 and 60 of the NDPS Act was filed against one Abdul Qayoom Wani S/o Abdul Gani Wani and the petitioner. The petitioner is the brother of Abdul Qayoom Wani, who is lodged in District Jail, Jammu. It transpires from the complaint that a secret information was received by Intelligence Officer, Sh. Koushal Kumar from the reliable sources on 05.11.2018 at 0900 hours that a person namely, Abdul Qayoom Wani S/o Abdul Gani Wani R/o Kalaross, Kupwara is carrying huge quantity of drugs i.e. heroin in his truck bearing registration No. JK09A-8777 from Kashmir Valley to Delhi and is reaching Jammu in the evening on 05.11.2018. The source person further intimated that there are three trucks of Abdul Qayoom Wani, those are coming from Kashmir Valley and reaching Jammu in evening on 05.11.2018 and they are bearing Nos. JK09A 8777, JK03E 8360 and JK09A 8100. The drugs were likely to be delivered at Azadpur Mandi New Delhi. After completing the necessary formalities, Mr. C. S. Rathore, Intelligence Officer planned and proceeded for the operation. At about 1815 hours, he saw the trucks bearing registration Nos. JK09A 8777, JK03E 8360 and JK09A 8100 reaching together at Ban Toll Plaza, Jammu. The trucks were stopped and parked on road side towards Jammu. During the course of operation, Sh. C. S. Rathore, Intelligence Officer and his team searched the truck bearing registration No. JK09A 8777. The same was found to be loaded with Apple boxes. During search of the cabin of the truck, the NCB Officer recovered some personal cards of Abdul Qayoom Wani i.e. PAN Card, Driving License, Aadhar Card, J&K Bank ATM Card, HDFC Card and Indian Currency of Rs. 1,00,000/-. On further enquiry, Abdul Qayoom Wani disclosed that huge quantity of drugs has been concealed in three apple boxes in truck bearing registration No. JK09A-8777 and also disclosed that he was the owner of truck bearing registration JK09A 8100 and truck bearing NO. JK03E 8360 is owned by his brother Farooq Ahmed Wani. During the search, 3 wooden apple boxes in truck bearing registration No. JK09A 8777, having 50 packets of white colour crystal like substances were recovered and Abdul Qayoom Wani disclosed that all the 50 packets were of Heroin. During the course of investigation, summon under section 67 of the NDPS Act was issued to Abdul Qayoom Wani and his statement was recorded on 07.11.2018 by C. S. Rathore, Intelligence Officer. In his statement, he disclosed that 50 packets of Heroin were given to him by his real brother Mushtaq Ahmed Wani R/o Village Kalaross, Tehsil Kupwara at his house which were further loaded in his truck bearing registration No. JK09A 8777 duly concealed with Apple boxes. He further stated that earlier one consignment of Heroin was also delivered by him at Amritsar which was given to him by his brother Mushtaq Ahmed Wani-petitioner herein. The summons were also issued in the name of petitioner and handed over to his father Ahdul Gani Wani as well, for appearance before the Intelligence Officer, NCB but he did not appear. After the completion of the necessary formalities, the complainant Deepak Kumar, Intelligence Officer filed a complaint before the learned Principal Sessions Judge, Jammu and the same was transferred to the trial court. The learned trial court vide order dated 03.05.2019, declared the petitioner as absconder as despite search of his locality, he was not available and there was no possibility of his appearance before the learned trial court.

The first contention raised by the petitioner is that there is no evidence on record that necessitates the prosecution of the petitioner. It is not denied by the petitioner that summons were issued in his name. As the petitioner despite summons issued to him for appearance did not participate/cooperate in the investigation, so he was declared absconder. No doubt the argument appears to be attractive but the same has been considered for rejection only in view of the fact that the complainant has specifically sought permission from the court to permit him or any other competent officer to file supplementary complaint against any other persons who were later found to be involved in the crime and a further prayer has been made that the complainant be permitted to bring on record any relevant evidence if collected during the further course of investigation of the case to meet the ends of justice. In ground E of the petition, an impression has been sought to be created that the matter was argued for discharge of the petitioner but the same did not find favour with the trial court, where as the fact remains that the petitioner never participated in the investigation and even did not appear before the trial court. The substance recovered from the brother of the petitioner was found to be Heroin and it weighed 50.120 Kgs. The allegations in the complaint are very serious in nature as they pertain to the recovery of more than 50 Kgs of Heroin. The investigation in the present case has not been concluded, as such, the contention raised by the petitioner, who admittedly is an absconder and has filed the present petition only after two years and that too only after the judgment of Apex Court in Tofan Singh, is mis-conceived particularly when the complainant has prayed for further investigation.

The second contention raised by the petitioner is that the statement of co-accused cannot be relied upon for prosecuting the accused, can also not be considered at this stage. It would be profitable to take note of the observations made by the Apex Court, while considering the validity of the order granting bail in anticipation of arrest in case tilted, State of Haryana vs Smarth Kumar, 2022 Live Law (SC) 622. From the observations made by the Hon’ble Apex Court, it is clear that the accused can take the benefit of decision of Apex Court in Toofan Singh vs Tamil Nadu, (2021)4 SCC 1 at the time of arguing the regular bail application or at the time of final hearing, after the conclusion of the trial. In view of judgment of Apex Court in State of Haryana vs Smarth Kumar, 2022 Live Law (SC) 622, the reliance cannot be placed upon the judgment of this court in “Aejaz Ismail Sayed versus Union of India”.

Lastly, the petitioner cannot take the benefit of the statements of the witnesses recorded during the trial, particularly when he has not participated in the trial and has been declared absconder.

Before parting, this Court would like to express its displeasure in the manner in which the petitioner while filing the present petition has placed on record the photographs of the statements of the witnesses recorded during the course of trial, having the signatures of the Presiding Officer. There is proper procedure for getting the certified copies of the statements recorded during the course of the trial or any other record of the court file. The clicking of the photographs of the court file is not permissible.

The petitioner has in fact abused the process of court by wrongly stating that the issue of discharge was not favourably considered by the trial court where as the fact remains that the petitioner never appeared before the trial court. The petitioner has also placed on record the photographs of the statements of the witnesses with the signature of the Presiding Officer recorded during the course of trial, those were taken without any authorization.

In view of all what has been discussed above, the present petition is found to be devoid of merit, as such, the same is dismissed with costs of Rs. 25,000/. The cost shall be deposited within a period of 30 days from today.

Copy of this judgment be sent to trial court for information/compliance.