Naushad Khan vs State Of Madhya Pradesh

Sanjay Dwivedi, J

This revision has been filed by the applicant under Section 397 read with Section 401 of the Code of Criminal Procedure questioning the legality, validity and propriety of order dated 20.10.2022 passed in Special Case SCNDPS No.64/2020 by the Special Judge, NDPS Act, Bhopal whereby his application filed under Section 233 read with Section 315 of the CrPC for appointing a Commission has been rejected by the trial Court.

As per the facts of the case, an offence was registered against the applicant and other co-accused persons vide Crime No.104/2020 at Police Station Crime Branch, Bhopal on the ground that the police after receiving a tip-off on 12.07.2020 at about 1.40 pm that the accused persons are carrying ganja in a car, intercepted the car i.e. Hyundai Santro Car bearing registration No.MP-09-HE-7744 near Bhanpur from which three persons namely Surjeet Singh Malviya, Brijesh Kumar Dangi and Vasant Kumar Bhaumik were arrested whereas the present applicant and other co-accused person namely Mushtaq Khan @ Bhola ran away from spot. However, as per prosecution, 30 kgs of ganja was seized by the police from the said car.

Since the present applicant and other co-accused person namely Mushtaq Khan @ Bhola were not arrested from spot, therefore, they had been granted bail.

Subsequently, the trial Court after framing of charges, conducted trial. In a pending trial, an application was moved saying that the car seized by the police was having a Global Positioning System (GPS) of a company namely Map My India, 237, Okhla Industrial Estate, Phase-3, New Delhi bearing GPS No.MMI334337 which was connected with Mobile No.9993263208 and as such, a Commission may be appointed so that the said GPS may be produced before the Court so as to ascertain that on the date of seizure of said car, it was in possession of the police.

The trial Court rejected the application mentioning therein that in pursuance to earlier application of similar nature filed by the accused persons, an advocate was appointed as Commissioner so as to ascertain that the GPS was actually attached with the said car and the Commissioner was also directed that if any GPS is found in that car, then the same be produced before the Court. Subsequently, the Commissioner after inspecting the car prepared panchnama and submitted the same before the Court wherein it was mentioned that there was no GPS in the car.

Thereafter, the trial Court fixed the matter for producing the defence witness, but again an application was moved before the trial Court by the accused requesting therein that a man from the company who knows about the GPS be called for as a witness so as to apprise the Court that the GPS was very much in the car at the relevant date so also the exact location of the car at the relevant point of time.

The trial Court, after observing the fact that since the Commissioner in its earlier report had mentioned that there was no GPS in the car, therefore, allowing the application and calling a man from the company would not serve any purpose, rejected the application. Hence, this revision.

Shri Trivedi, learned counsel for the applicant submits that the police deliberately removed the GPS from the said car to hide their illegal action under which they have falsely implicated the present applicant and other co-accused persons. Therefore, he prays that under the aforesaid facts and circumstances of the case, the impugned order may be set aside.

On the other hand, Shri Raj, learned Panel Lawyer has opposed the submission advanced by learned counsel for the applicant and supported the order passed by the trial Court saying that once the appointed Commissioner had submitted its report about non-availability of the GPS in the car, therefore, the trial Court did nothing wrong in rejecting the application saying that it was nothing, but a delaying tactics adopted by the accused persons.

I have heard the submissions advanced by learned counsel for the parties and perused the record.

Section 311 of the CrPC empowers the Court to call any person as a witness in the interest of justice or for proper adjudication of the case. If the Court thinks fit then any person can be called as a witness to bring correct picture before the Court. It is also a settled principle of law that the accused has every right to defend himself.

Looking to the facts and circumstances of the case, I am of the opinion that the applicant can be granted one more opportunity to prove his defence and to call a witness of the company who had installed the GPS in the said car. Accordingly, this revision is allowed and the order passed by the trial Court with regard to rejecting the request made by the accused for calling a witness from the company is set aside.

It is made clear that the trial Court shall issue a summon or adopt any other mode to call a man from the company concerned so as to ascertain the fact as to whether GPS was actually installed in the said car by the company and at the relevant point of time, the same was there in the car and what was the location of the car.

It is also made clear that the trial Court shall grant only one opportunity to the accused for calling the man from the company because it is also his responsibility and duty to call the witness on the given date and time so fixed by the Court. It is further made clear that on the given date and time, if nobody comes to the Court from the company, then the Court can proceed further with other material available with the defence.

With the aforesaid observation, the revision stands allowed and disposed of.

Certified copy as per rules.