Smt. Aruna Malhotra vs The Union of India

Samarendra Pratap Singh, J.—Heard the learned counsel for the parties. The petitioner is aggrieved by order dated 18.3.2009 passed by the learned Sessions Special Judge- VI, Patna in Special Case No. 24/07, rejecting the prayer to dispense with the personal appearance of the petitioner u/s 205 Cr.P.C. The petitioner happens to be the owner of the truck in question which was carrying goods from Nepal for Kolkata. The truck was driven by one Guddu Kumar and the truck was hired by M/s Super Trans Legistics Pvt. Ltd., Howrah, for carrying consignment of Real Active Juice. Subsequently a complaint u/s 36A of the N.D.P.S. Act was filed in the aforesaid Special Case No. 24/07 implicating the petitioner as an accused for abetting an offence under Sections 25 and 29 of the N.D.P.S. Act.

Learned counsel submits that though the allegation is that on suspicion the truck was intercepted and 60 kgs. of ganja was found also kept in bundle in a truck in question which gave rise to the Special Case No. 24/07.

Learned counsel submits that the petitioner is a woman and resides at Faridabad. The aforesaid ganja has been allegedly kept on the truck. He submits that even assuming that ganja was seized from the aforesaid truck, the same was kept without her consent. Learned counsel submits that the petitioner cannot be made responsible if the driver or the occupant of the truck secretly kept ganja without knowledge of the owner. He further submits that in this circumstance the petitioner ought to have been granted exemption u/s 205 of Cr.P.C. in view of section 36(C) of the N.D.P.S. Act.

Learned counsel in support of his submission has relied upon a decision of this Court rendered in the case of Manish Gai Vs. State of Bihar . In this case this Court was also considering a case of refusal of grant of exemption u/s 205 of Cr.P.C. by the Magistrate. This Court observed that while considering such application, it is to be seen whether absence of the petitioner would delay the trial in any manner or prejudice the trial in any manner and not otherwise. In para 11 this Court quoted the observation made by Hon''ble apex Court in case of S.V. Muzumdar and Others Vs. Gujarat State Fertilizer Co. Ltd. and Another, which reads as follows :--

"It has to be borne in mind that while dealing with an application in terms of Section 205 of the Code, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial court is likely to be hampered on account of his absence. We make it clear that if at any stage the trial court comes to the conclusion that the accused persons are trying delay completion of trial it shall be free to refuse the prayer for dispensing with personal attendance."

There is no material to show that the alleged ganja was kept on the truck with her knowledge. He submits that though the offence may be a serious one, but the culpability of the petitioner is not at all proved.

The counsel for the State submits that the offence under Sections 25 and 29 of the N.D.P.S. Act is a serious offence and in such case, exemption u/s 205 of Cr.P.C. may not be allowed. He submits that the petitioner has been accused of abetting the aforesaid offence. The scope and object of section 205 of Cr.P.C. fell for consideration before a bench of this Court in a case of Ram Harsh Das Vs. State of Bihar and Others, . In the aforesaid case this Court in para 49 held that:--

"The power referred to in Section 205 (1) of the Code is discretionary. Even in cases. Where the Provision is applicable, the Magistrate has to Consider the question of dispensing with the Personal appearance in reasonable manner. No hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance. In petty cases, the court should be liberal in granting exemption from personal appearance, but will not exercise such power in the cases of serious nature including the offence involving moral turpitude. The court has to consider the nature of the allegations, conduct of the accused and the inconvenience likely to be caused to the accused due to his appearance in the court and after relevant consideration at the time deciding the question of dispensing with the personal appearance. No categorization of cases where the power is to be exercised u/s 205 of the Code can be made but generally. Purdanshin woman, old and sick persons, factory workers and labourers, busy business people or public functionaries are to be given the benefit of the said provision."

However, at the same time this Court in para 38 observes that it is not an intention of Legislator that this provision be used to dispense with the appearance of the prosecution in serious cases. The offence under N.D.P.S. Act including sections 25 and 29 of the Act are of serious nature and entail long punishment.

It appears that the petitioner has also filed a quashing application against the order taking cognizance and summoning her to face the trial, which is pending before this Court.

In view of the nature of the allegation in which the petitioner seems to have abetted the offence, I do not find this to be an appropriate case in which exemption u/s 205 of Cr.P.C. can be allowed. With the aforesaid observation this application is dismissed.