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Suresh Singh v. State Of U.P. - CRIMINAL REVISION No. - 3018 of 2007  RD-AH 17187 (30 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 52
Criminal Revision No. 3018 of 2007
Suresh Singh Kushwaha alias Suresh Vs. State of U.P.
Hon'ble Shiv Charan J.
Heard learned counsel for the revisionist and perused the order dated 26.7.2007 passed by Addl. Sessions Judge/FTC No.3 Ballia in S.T. No.66 of 2006 and 67 of 2006 u/s 8/20 NDPS Act P.S.GRP, Ballia. By the impugned order the Addl. Sessions Judge disposed of the application of the prosecution moved for consolidating both the cases as provided u/s 223 Cr.P.C.
A perusal of the facts shows that on 6.3.2006 at about 6.00 or 6.20 a.m S.O. GRP apprehended two persons in suspicious circumstance from Plate form no.2 Railway Station Ballia. Search was conducted from both these accused, namely, Suresh and Ram Lal and from the possession of both the accused persons six Kg. Ganja each was recovered. Regarding recovery from the possession of both the accused persons a common fard recovery was prepared. But both the cases were registered at different crime number 9/06 and 10/06. Both the cases were investigated separately and a separate charge sheet was submitted against both the accused persons. As both the accused persons were apprehended from the same place at the same time and date but recovery was separate from both the accused persons. In order to prove the guilt of the accused persons, the prosecution required to produce the same evidence hence an application was moved on behalf of the prosecution to amalgamate both the cases as provided u/s 223 Cr.P.C. But the learned sessions Judge was of the view that as recovery is separate from both the accused persons hence this prayer was not accepted that both the cases be consolidated for the purposes of recording evidence. It has been provided that the statement of the witnesses shall be recorded in one case and opportunity to cross-examine shall be given to the Advocate of both the accused persons but the copy of the statement shall be placed on the record of another case.
Learned counsel for the revisionist argued that the order passed by learned Sessions is illegal. The transaction is entirely different of both the cases. Recovery is separate from both the persons and ingredient u/s 223 Cr.P.C. are not present in the case. Hence no justification for the learned Sessions Judge to record the statement of the witnesses in one case and placed the copy of the statement in the record of another file. There should have been separate trial of both the cases and in this case learned counsel for the revisionist cited 2003(47)ACC797 Lalu Prasad @Lalu Prasad Yadav Vs. State Through CBI(A.H.D.)Ranchi,Jharkhand,(SC), 1999 (3)A.Cr.R.2490(S.C.) Balbir Vs. State of Haryana and another and ACC 1977(14) page 327 Gudari and others Vs. State, Allahabad High Court and on the basis of these judgements of Hon'ble Apex Court and this court revisionist's counsel argued that when the transaction is entirely different the cases could not be amalgamated and consolidated and he also argued that in the present case recovery is different,hence both the cases cannot be consolidated.
Learned AGA argued that the order of learned Sessions Judge is perfectly justified and there is no illegality or irregularities in the order of learned Sessions Judge.
I have considered all the facts and circumstances of the case and it is undisputed fact that S.O. GRP apprehended both these accused persons on6.3.2006 at 6.20 a.m from Railway Station Ballia at plat form no.2 and a search was conducted from both the accused persons and on search from the possession of each of the accused persons six Kg. Ganja was recovered. Except that the recovery is different from both the accused persons rest of the facts are same. Both the accused persons were apprehended on the same time and place, witnesses are the same. Although learned Sessions Judge has neither consolidated the case nor kept them separate but a middle course was adopted by the Sessions Judge and there is no justification on the part of learned sessions Judge for doing so. When learned sessions Judge was of the opinion that as the recovery is different hence both the cases cannot be consolidated but at the same time learned sessions Judge provided that statement of the witnesses shall be recorded in one case and Advocate of another accused shall also be provided opportunity of cross-examine the witnesses and then copy of the statement shall be kept in the file of the another case. I failed to understand under what circumstance the learned Sessions Judge has provided this position, either both cases must have been consolidated after framing of the charge or both must have been separately tried. A copy of the statement cannot be placed in a record of different case. If both the files are separated then I am of the opinion that in both the file the statements must be recorded separately. Copy of the statement of the witness of one case cannot be placed in the record of another case for the purposes of deciding the case or either the case must have been consolidated.
As I have stated above, that except that the recovery is different, rest of all the circumstances is similar and considered the judgement cited by learned counsel for the revisionist and I am of the opinion that no help would be given to the revisionist. In the present case recovery took place on the same date and time. Keeping both the cases separately will amount to repetition of the statement of the witnesses and wastage of valuable time of the court. If after framing the charge both the cases are consolidated then there is no illegality in the order and in the interest of justice and to avoid the duplicacy and multiplicity of the evidence, both the files must have been consolidated by learned Sessions Judge instead of adopting the middle course.
For the reasons mentioned above, in my opinion there is no reason to affirm the order in its form as has been passed. The order requires to be modified.
However, the order is modified to this extent that S.T. No. 66 of 2006 and 67 of 2006 shall be consolidated for the purpose of recording evidence and there is also no hurdle in deciding both the cases by a single judgement. However, it is discretion of the Sessions Judge to pass separate judgement or decide both the cases by a single judgement. But the evidence shall be recorded by consolidating both the cases and the order to the effect that the statement shall be recorded in one case and the copy of the statement kept in another case is set aside.
Revision is disposed of accordingly.
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