Order 32

Order Details: COPY OF ORDER
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6 SC 495/2023
STATE Vs. MOHAN GUPTA
FIR NO. 54/2023
PS (Crime Branch- Central Delhi)
18.05.2026
Lawyers are abstaining from work today.
Present: Sh. K.P. Singh, Ld. Addl. PP for the State.
Accused Mohan Gupta produced from JC.
Accused Pradeep in person along with Sh. Mohd.
Haider Ayyoob, Ld. Counsel for the accused
(through VC).
1. Vide this Order, I shall decide the question of
framing of charges / discharge of accused persons, namely,
Mohan Gupta and Pradeep, who have been arraigned as accused
persons in the subject FIR/its final report filed under section 173
Cr. P.C. by the police.
2. Arguments on behalf of the accused persons
and the State were heard on last date of hearing.
3. The facts of the subject FIR in brief are as
follows:-
3.1 Prosecution alleges that the police suspected
the accused, Mohan Gupta, of drug trafficking
due to his previous involvement in multiple
narcotics cases. Thereafter, upon receipt of secret
information, ASI Subhash Chand had informed
Insp. Rakesh and after receipt of necessary
approval from the concerned ACP Sh. Arvind
Kumar, Crime Branch, the raiding party was
constituted and the accused, namely, Mohan
Gupta was apprehended, at the pointing out of
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the secret informer. Upon the search of his bag, a
red coloured powdery substance which was
wrapped in a polythene bag was allegedly
recovered from the possession of the accused
Mohan Gupta. Upon testing, the said red
substance was confirmed to be 410 grams heroin.
Subsequently, the said handbag and the
contraband were seized and accused Mohan
Gupta was arrested and he was interrogated by
the police for the purpose of identification of the
source and receiver of the alleged contraband,
which was seized from him. On the basis of the
disclosure statement recorded U/s 67, it was
revealed that the accused Mohan Gupta had
procured the contraband from one Wajid,
resident of Bareilly and the said contraband was
to be resold to some individuals, one of whom
was Pradeep/co-accused.
3.2 It is the case of the prosecution that further
investigation revealed that the accused Mohan
Gupta and accused Pradeep were in regular
contact with each other through mobile phone
and subsequently on the said basis, the accused
Pradeep was also apprehended in the subject FIR.
Though, efforts were made to apprehend the
source of the contraband i.e. one Wajid, resident
of Bareilly, whose real name was subsequently
revealed to be Akram
(who is stated to be
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previously involved in FIR bearing No.26/12, PS
Special Cell, Delhi in respect of offences
pertaining to illegal trafficking of drugs),
however, he could not be apprehended as he had
absconded.
3.3 After conclusion of investigation, the final
report under section 173 Cr. P.C., in the form of
charge sheet was filed in the month of March,
2023 against the accused persons, namely,
Mohan Gupta and Pradeep. Thereafter, after a
gap of about two years from the date of filing of
main charge sheet, a supplementary charge sheet
was filed containing the FSL report which also
confirmed the recovered substance to be heroin.
Subsequently, in the year 2025, one additional
supplementary charge sheet containing the FSL
report of Cyber Forensic Division was also filed.
The said report was in respect of the data which
was attempted to be retrieved from the mobile
phones used by the accused persons Mohan
Gupta and Pradeep.
4. It is trite that while considering the question of
framing of charge / discharge of an accused, the Court is not
required to conduct a mini trial and the Court has to merely
weigh material on record for ascertaining as to whether the
ingredients constituting the alleged offence(s) are prima-facie
available on record or not.
5. In this context, it is apposite to refer to the law /
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principles laid down by Hon’ble Apex Court in case titled as
“Sajjan Kumar Vs. CBI (2010) 9 SCC 368”. The same are as
follows: -
“21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a
prima facie case against the accused has been made out. The test to
determine prima facie case would depend upon the facts of each
case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of
the prosecution but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the court, any basic infirmities, etc. However, at this stage,
there cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form
an opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is required
to be proved beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge
the court must apply its judicial mind on the material placed on
record and must be satisfied that the commission of offence by the
accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to
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evaluate the material and documents on record with a view to find
out if the facts emerging therefrom taken at their face value disclose
the existence of all the ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution states as
gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.”
6. Similarly in the case titled as
State of Gujarat Vs.
Dilip Singh K. Rao, 2023 SCC OnLine SC 1924, the following
principles were laid down by the Hon’ble Apex Court: -
“7. It is trite law that application of judicial mind being
necessary to determine whether a case has been made out
by the prosecution for proceeding with trial and it would
not be necessary to dwell into the pros and cons of the
matter by examining the defence of the accused when an
application for discharge is filed. At that stage, the trial
judge has to merely examine the evidence placed by the
prosecution in order to determine whether or not the
grounds are sufficient to proceed against the accused on
basis of charge sheet material. The nature of the evidence
recorded or collected by the investigating agency or the
documents produced in which prima facie it reveals that
there are suspicious circumstances against the accused, so
as to frame a charge would suffice and such material
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would be taken into account for the purposes of framing
the charge. If there is no sufficient ground for proceeding
against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for
presuming that accused has committed the offence which
is triable, then necessarily charge has to be framed.
xxx
12. The primary consideration at the stage of framing of
charge is the test of existence of a prima-facie case, and at
this stage, the probative value of materials on record need
not be gone into. This Court by referring to its earlier
decisions in the State of Maharashtra v. Som Nath Thapa,
(1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni,
(2000) 6 SCC 338 has held the nature of evaluation to be
made by the court at the stage of framing of the charge is
to test the existence of prima-facie case. It is also held at
the stage of framing of charge, the court has to form a
presumptive opinion to the existence of factual ingredients
constituting the offence alleged and it is not expected to
go deep into probative value of the material on record and
to check whether the material on record would certainly
lead to conviction at the conclusion of trial.”
7. A bare perusal of the above enumerated principles,
laid down by the Hon’ble Apex Court reveals that at this stage
what is required to be seen is to whether the material, which is
placed on record raises “grave suspicion” against the accused
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persons and for which there is no proper explanation.
8. In the facts of the instant case, both the accused
persons have been charge-sheeted in respect of offences
punishable u/s 21 (c) and Section 29 of the NDPS Act.
9. During the course of arguments, it was submitted on
behalf of the accused Mohan Gupta that the alleged recovery has
been planted upon the accused as the accused was previously
involved in cases of illicit drug trafficking. It was further argued
that at the time of recovery, no public witness was joined despite
the fact that he was arrested from the public place and that no
attempt was made by the Investigating Officer to obtain the
CCTV footage of the neighbourhood / vicinity from where the
accused was apprehended. Questions were also raised by Ld.
Counsel qua the manner in which the investigation of the subject
FIR has been carried out by the IO. In view of the above
submissions, prayer was made on behalf of accused Mohan
Gupta for his discharge from the subject FIR.
10. At the same time, Ld. Counsel appearing on behalf
of accused Pradeep had argued that except the disclosure
statement and CDR records, nothing has been placed on record
by the police, which could suggest the complicity of the accused
Pradeep in the crime in question. During the course of
arguments, the attention was also drawn to the additional
supplementary charge sheet vide which the FSL report
pertaining to mobile phones of the accused persons was filed. It
was pointed out that a bare perusal of the said report reveals that
despite efforts, no data could be retrieved from the mobile
phones of the accused persons which could incriminate the
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accused Pradeep or would reveal his complicity in the instant
FIR. It was argued on behalf of accused Pradeep that the
material as is available on record does not raise “grave
suspicion” qua the involvement of accused Pradeep in the crime
in question. Reliance was also placed by Ld. Counsel for the
accused Pradeep on the law laid down by the Hon’ble High
Court of Delhi in the cases titled as Shyam Gupta & Ors vs
State, (NCT of Delhi), Crl. Rev.P. 421/2019, dated 13.03.2023
and Kunwar Pal vs State, (NCT of Delhi), Crl. M.C 6586/2023
dated 22.02.2024 in support of the submissions made by him,
seeking discharge of accused Pradeep.
11. Record perused.
12. As per the prosecution version, the accused Mohan
Gupta was apprehended and at the time of apprehension 410
gram of heroin was recovered from his possession. It is also the
case of the prosecution that the accused Mohan Gupta had to
resell the said contraband / heroin to accused Pradeep for some
consideration. For the purpose of showing complicity of the
accused Pradeep, the prosecution has placed on record the
disclosure statements of the accused persons along with the call
detail record which shows that both the accused persons were in
touch with each other. Thus, to show the existence of conspiracy
between the accused persons, the prosecution has solely relied
upon the CDR connectivity between the accused Mohan Gupta
and accused Pradeep. Apart from the CDR, no transcripts have
been placed on record which may reveal the content / details of
conversation which had taken place between the accused Mohan
Gupta and accused Pradeep. At the same time, admittedly no
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recovery of contraband was effected at the instance of / from the
possession of accused Pradeep and no financial trail could be
established between the accused Mohan Gupta and accused
Pradeep.
13. Thus, except the CDR and the disclosure statement,
there is nothing on record to connect the accused Pradeep with
the crime in question. Applying the law laid down by
Hon’ble High Court of Delhi, in above referred cases, merely
placing reliance on CDR and disclosure statement(s) will not
justify framing of charges against the accused Pradeep
especially in light of the fact that there is absence of any
material in the form of call recordings or transcript of the
version to show as to the reason of their being in contact with
each other. This Court cannot presume that the accused Mohan
Gupta and accused Pradeep were in touch with each other for the
purpose of sale / purchase of contraband which was allegedly
recovered from the possession of the accused Mohan Gupta.
14. As a sequitur to the above discussion, it can be
concluded that the material on record placed on record by
prosecution against the accused Pradeep may though raise
‘suspicion’, however it does not raise ‘grave suspicion’ so as to
justify framing of charges against the accused Pradeep.
Consequently, the accused Pradeep stands discharged.
15. However, there is material available on record to
support the allegations against the accused Mohan Gupta to the
effect that he was apprehended along with the contraband i.e.
410 gms of heroin. The arguments raised on behalf of accused
Mohan Gupta pertaining to non-joining of public witnesses,
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absence of CCTV footage or lapses in investigation are required
to be examined / proved by the accused during the course of
trial. The material on record raises ‘grave suspicion’ against the
accused Mohan Gupta.
16. Consequently, let charges in respect of offence
punishable u/s 21 (c) NDPS Act be framed against the accused
Mohan Gupta.
To come up on 25.05.2026.
(Puneet Nagpal)
Special Judge, NDPS,
Central,THC, Delhi/18.05.2026
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