Neutral Citation No. - 2025:AHC:102655 Court No. - 77 Case :- APPLICATION U/S 482 No. - 34019 of 2024 Applicant :- Vivekanand Mall And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Awadh Narayan Tiwari,Santosh Kr. Singh Paliwal Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard learned counsel for applicants and learned AGA for the State-respondent. 2. The present application has been preferred challenging the chargesheet dated 23.01.2024 along with summoning order dated 30.01.2024 and order dated 25.06.2024 through which charges have been framed as well as entire criminal proceedings of Special Sessions Case No.102 of 2024 (State Vs. Vivekanand Mall and other), arising out of Case Crime No.554 of 2023, under Section 8/22 NDPS Act, Police Station Kothibhar, District Maharajganj, pending in the court of learned Additional Sessions Judge, Fast Track Court No.1, Maharajganj. 3. Brief facts of the present case are that in pursuance of recovery of Diazepam Injections, Buprenorphine Injections and Promethazine Hydrochloride Injections in heavy quantity from the possession of applicants herein and two other co-accused, recovery memo was prepared and FIR was lodged against four accused including applicants bearing Case Crime No.554 of 2023, under Section 8/22 NDPS Act. After lodging of the FIR, inquiry was initiated and during inquiry, statements of police personnel were recorded and after conduction of the inquiry, the concerned Investigating Officer submitted chargesheet on dated 23.01.2024 against applicants for offence under Section 8/22 NDPS Act whereupon learned court concerned taken cognizance of offence vide order dated 25.06.2024 and summoned the applicant for facing trial and charges have also been framed vide order dated 25.06.2024 which impugned the present application. 4. Learned counsel for applicants argued that applicant has falsely been implicated in the present case since there was no independent witness of the alleged recovery and only police personnel were witness. Learned counsel for applicants further submitted that till date, no FSL report has been submitted, in spite of that charges have been framed. It has also been argued by learned counsel for applicant that without conducting fair investigation and only relying upon the statements of police personnel, the concerned Investigating Officer submitted chargesheet against applicants but without considering the said facts and without applying its judicial mind, learned court concerned taken cognizance of offence over the said chargesheet and framed charges which is abuse of process of law and as such, same may be quashed. 5. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be raised on behalf of applicants, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial. 6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence. 7. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another). 8. From perusal of the material available on record in shape of narrations made in the FIR as well as statements recorded during investigation and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicants. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. 9. On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed. 10. However, it is made clear that this order shall not preclude the applicants from availing the remedies which are available to them as per law. Order Date :- 1.7.2025 Vivek Kr. Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad