2026:HHC:28408 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 332 of 2026 Reserved on: 23.06.2026 Date of Decision: 14.07.2026. State of H.P. ...Petitioner Versus Imtiaz Hashmi @ Bhura Khan ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr Lokender Kutlehria, Additional Advocate General, For Respondent : Nemo Rakesh Kainthla, Judge The State has filed the present petition against the order dated 08.09.2025 passed by learned Special Judge-I, Sirmaur, District at Nahan, Himachal Pradesh (learned Trial Court), vide which the respondent (accused before learned Trial Court) was discharged. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience), 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:28408 2. Briefly stated, the facts giving rise to the present petition are that the police received secret information on 28.06.2024 that a vehicle bearing registration No. HP-77-9555 was transporting a huge quantity of cannabis. The police searched the vehicle after completing the formalities and recovered 2.4 kg of charas. Vipin Basu, Ashish Kumar and Manjeet Singh, the co- accused, were travelling in the vehicle. They could not provide any explanation for the possession of the quantity. Hence, the police arrested them and seized the charas. They disclosed during the interrogation that Pramod Kumar had sent the consignment to Manjeet Singh. Pramod Kumar disclosed during the interrogation that some contraband was to be delivered to Imtiaz Hashmi, alias Bhura Khan, the present respondent. The police obtained the call detail record and found that Vipin Basu, Pramod Kumar and Imtiaz Hashmi were in touch with each other on 28.06.2024, the date of the recovery. Hence, the police arrested the petitioner and filed the charge sheet against him and the other accused before the Court. 3. The accused/respondent filed an application seeking his discharge, asserting that there is no evidence to connect him to the commission of the crime. A statement made by the co- 3 2026:HHC:28408 accused during the interrogation is inadmissible. The call detail record is not sufficient to frame charges against him. Hence, he prayed that he be discharged. 4. The application was opposed by filing a reply asserting that the respondent was arrested based on the call detail record, and the disclosure statement made by the co-accused. The Court is not required to conduct a detailed inquiry or mini-trial. There was sufficient material to frame the charges against the accused. Hence, it was prayed that the application seeking discharge be dismissed. 5. Learned Trial Court held that the Court had to ascertain whether a prima facie case was made against the accused for putting him to trial. The prosecution was relying upon the statement made by the co-accused, Pramod Kumar and the phone calls. The statement made by the co-accused was not admissible, and the phone calls were not sufficient to connect the respondent to the commission of the crime. The phone call may give rise to a suspicion. But the suspicion is not sufficient to frame charges. Hence, the respondent/accused was discharged. 4 2026:HHC:28408 6. Being aggrieved by the order passed by the learned Trial Court, the State has filed the present petition, asserting that the learned trial Court failed to appreciate the fact that conspiracy can be inferred from the circumstantial evidence. The burden would shift upon the respondent under Sections 35 and 54 of the NDPS Act to prove that he was not in possession. The discharge at the premature stage defeats the legislative mandate. The direct evidence seldom exists in the case of organised syndicate activity. The call detail record could not be discarded at the threshold; therefore, it was prayed that the present petition be allowed, and the order passed by the learned Trial Court be set aside. 7. I have heard Mr Lokender Kutlehira, learned Additional Advocate General, for the petitioner/State. 8. None appeared on behalf of the respondent when the matter was listed on 23.06.2026; hence, none could be heard on his behalf. 9. Mr Lokender Kutlahria, learned Additional Advocate General for the petitioner/State, submitted that the learned Trial Court erred in discharging the respondent. The name of the respondent was disclosed during the interrogation by the co- 5 2026:HHC:28408 accused. He was found in touch with the co-accused. Therefore, there was sufficient material to frame charges, and the learned Trial Court erred in discharging the respondent/accused. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 10. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 11. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. Dilip Singh Kishor Singh Rao, 2023 SCC OnLine SC 1294, that the Judge has to determine whether or not sufficient grounds exist to proceed against the accused on the basis of the material placed before him. It was observed: - “10. It is a settled principle of law that at the stage of considering an application for discharge, the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value disclose the existence of the ingredients necessary for the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709, adverted to the earlier propositions of law laid down on this subject, has held: “29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or 6 2026:HHC:28408 act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to finding out whether the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. At this stage, the probative value of the materials has to be gone into, and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini-trial at this stage.” 11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of the 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 7 2026:HHC:28408 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 that the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion on the existence of factual ingredients constituting the offence alleged, and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to a conviction at the conclusion of the trial. 12. It was held in Vishnu Kumar Shukla vs. State of U.P., 2023 SCC OnLine SC 1582, that the Court has to see a prima facie case while framing the charges even in warrants cases instituted otherwise than on a police report. It was observed: - 15. Although the instant case pertains to Trial of Warrant- Cases by Magistrates and is a case instituted on a police report, meaning Sections 239-240, CrPC are relevant, we also propose to glance at Section 245, CrPC (concerning trial of warrant-cases by Magistrates apropos cases instituted otherwise than on police report), as also Sections 227-228, CrPC, which pertain to Trial before a Court of Session. 16. The extent of scrutiny permissible when an application for discharge is being considered has attracted this Court's attention on a number of occasions. It is appropriate to take note of the leading precedents on the subject. Insofar as Section 245, CrPC is concerned, the decision of this Court in Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 is instructive: ‘19. The essential difference of procedure in the trial of a warrant case on the basis of a police report and that instituted otherwise than on the police report is particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC on the other. 8 2026:HHC:28408 Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like the police report, FIR, statements recorded under sub-section (3) of Section 161 CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents which have been forwarded by the prosecuting agency to the court. 20. After that, comes the stage of discharge, for which it is provided in Section 239 CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173 CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of the aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 CrPC, and the trial proceeds for recording the evidence. Thus, in such a trial, the prosecution has only one opportunity to lead evidence, and that too comes only after the charge is framed. Xxx 22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the framing of the charge. Of course, under Section 245(2) CrPC, a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. 9 2026:HHC:28408 23. Essentially, the applicable sections are Sections 244 and 245 CrPC since this is a warrant trial instituted otherwise than on police reports. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) CrPC or to summon its witnesses under Section 244(2) CrPC. This did not happen, and instead, the accused proceeded to file an application under Section 245(2) CrPC on the ground that the charge was groundless. 24. Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244, and he has to consider whether the evidence remains unrebutted; the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) CrPC. 25. The situation under Section 245(2) CrPC is, however, different. There, under subsection (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage because there is none. The Magistrate can take this decision before the accused appears or is brought before the court, or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC “at any previous stage of the case” clearly bring out this position. Xxx 36. The Magistrate has the power to discharge the accused under Section 245(2) CrPC at any previous stage i.e. before the evidence is recorded under 10 2026:HHC:28408 Section 244(1) CrPC, which seems to be the established law, particularly in view of the decision in Cricket Assn. of Bengal v. State of W.B. [(1971) 3 SCC 239: 1971 SCC (Cri) 446], as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo v. Mahadev Vishwanath Parulekar [1984 Cri LJ 513 (Bom)]. The same decision was followed by the Kerala High Court in Manmohan Malhotra v. P.M. Abdul Salam [1994 Cri LJ 1555 (Ker)], and Hon'ble Justice K.T. Thomas, as the learned Judge then was, accepted the proposition that the Magistrate has the power under Section 245(2) CrPC to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohd. Sheriff Sahib v. Abdul Karim Sahib [AIR 1928 Mad 129 (1)], as also the judgment of the Himachal Pradesh High Court in Gopal Chauhan v. Satya [1979 Cri LJ 446 (HP)]. 37. We are convinced that under Section 245(2) CrPC, the Magistrate can discharge the accused at any previous stage, i.e. even before any evidence is recorded under Section 244(1) CrPC. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.’ (emphasis supplied) 17. Turning to Sections 239-240, CrPC, this Court held as under in Minakshi Bala v. Sudhir Kumar, (1994) 4 SCC 142: ‘6. Having regard to the fact that the offences, for which the charge sheet was submitted in the instant case and cognisance taken, were triable as a warrant case, the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 CrPC and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If, on such consideration, examination and hearing, the Magistrate finds the charge groundless, he has to 11 2026:HHC:28408 discharge the accused in terms of Section 239 CrPC; conversely, if he finds that there is ground for presuming that the accused has committed an offence triable by him, he has to frame a charge in terms of Section 240 CrPC. 7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out — as has been done in the instant case — the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC, the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add that even in such exceptional cases, the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. 8. Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding the commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge, the 12 2026:HHC:28408 Court cannot usurp the functions of a trial court to delve into and decide upon the respective merits of the case.’ (emphasis supplied) 18. With great respect, we express our reservations in fully acceding to what has been stated above. If Paragraph 8 of Minakshi Bala (supra) is accepted as it is, the necessary concomitant would be that, despite examining the matter in detail, a Court would find its wings clipped to intercede. This would amount to forcing a person to stand trial, even when the overwhelming material points to his/her innocence. Obviously, the hands of a Court ought not to be tied down, and especially not by a higher Court, and more so not against liberty. Paragraph 7 of Minakshi Bala (supra) does enable examining unimpeachable documents. We are conscious that Minakshi Bala (supra) has been followed in later decisions by the Court. However, we have chosen to survey the precedents further and then decide on the road we wish to take. 19. In Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364, this Court held that the Judge concerned with an application under Section 239, CrPC has to ‘… go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.’ 20. In State of Tamil Nadu v. N Suresh Rajan, (2014) 11 SCC 709, it was observed that, notwithstanding the difference in the language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under Sections 227 and 228, CrPC are well-settled, courtesy, inter alia, State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad v. Dilip N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh Punjabi v. Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v. State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; 13 2026:HHC:28408 Dinesh Tiwari v. State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v. Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v. M H Abbas, AIR 1967 SC 740 and Almohan Das v. State of West Bengal, (1969) 2 SCR 520, it was laid down as under: ‘10. Thus, on consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge, while considering the question of framing the charges under Section 227 of the Code, 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. (2) Where the materials placed before the Court disclose a 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case, and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him, while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the 14 2026:HHC:28408 case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he were conducting a trial.’(emphasis supplied) 13. It was laid down by the Hon’ble Supreme Court in Vishnu Kumar Shukla v. State of U.P., (2023) 15 SCC 502: 2023 SCC OnLine SC 1582 that the Court framing the charges has to see a prima facie case. It is impermissible to examine the material threadbare to determine whether the accused is likely to be convicted or not. It was observed: “12. The primary consideration at the stage of framing of charge is the test of the 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 that the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion on the existence of factual ingredients constituting the offence alleged, and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to a conviction at the conclusion of the trial. 14. It was held in Ram Prakash Chadha v. State of U.P., (2024) 10 SCC 651: (2025) 1 SCC (Cri) 253: 2024 SCC OnLine SC 1709 15 2026:HHC:28408 that the Court can sift and weigh the evidence to determine if a prima facie case exists against the accused. It was observed at page 661: “24. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227CrPC, and entering into the scope of power under Section 232CrPC, cannot be ruled out, as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI, (2000) 5 SCC 679: 2000 SCC (Cri) 1014. Taking note of the language of Section 227CrPC, is in negative terminology and that the language in Section 232CrPC, is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227CrPC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232 CrPC, even though the said stage has not been reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232 CrPC, available only after taking the evidence for the prosecution and examining the accused. 16 2026:HHC:28408 15. It was held in Yuvraj Laxmilal Kanther v. State of Maharashtra, 2025 SCC OnLine SC 520, that the Court is not to undertake a threadbare analysis of the material but to see if there is sufficient material to frame charges. It was observed: “16. Section 227 CrPC deals with discharge. What Section 227 CrPC contemplates is that if, upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there are no sufficient grounds for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. At the stage of consideration of discharge, the court is not required to undertake a threadbare analysis of the materials gathered by the prosecution. All that is required to be seen at this stage is that there are sufficient grounds to proceed against the accused. In other words, the materials should be sufficient to enable the court to initiate a criminal trial against the accused. It may be so that at the end of the trial, the accused may still be acquitted. At the stage of discharge, the court is only required to consider whether there are sufficient materials that can justify the launch of a criminal trial against the accused. By its very nature, a discharge is at a higher pedestal than an acquittal. Acquittal is at the end of the trial process, may be for a technicality or on the benefit of doubt, or the prosecution could not prove the charge against the accused; but when an accused is discharged, it means that there are no materials to justify the launch of a criminal trial against the accused. Once he is discharged, he is no longer an accused.” 16. It was held in Tuhin Kumar Biswas v. State of W.B., 2025 SCC OnLine SC 2604, that if there is a suspicion as opposed to a 17 2026:HHC:28408 grave suspicion, the Court has to discharge the accused. It was observed: 15. This Court has recently in Ram Prakash Chadha v. State of UP (2024) 10 SCC 651 : (2025) 1 SCC (Cri) 253, cited with approval earlier decisions of this Court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715: 1989 SCC (Cri) 285; P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488; and Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609 as under:— “21. In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715: 1989 SCC (Cri) 285], this Court held that the word “ground” in Section 227 CrPC did not mean a ground for conviction, but a ground for putting the accused on trial. 22. In P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398: (2010) 1 SCC (Cri) 1488], after extracting Section 227 CrPC, this Court in paras 10 and 11 held thus: (SCC pp. 401-402) “10. … 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. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind on the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities, which is really the function of the court, after the trial starts. 18 2026:HHC:28408 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 23. In para 13 in P. Vijayan case [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488], this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609] which reads thus: (Prafulla Kumar Samal case [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609], SCC p. 9, para 10) “10. … (1) That the Judge, while considering the question of framing the charges under Section 227 of the Code, 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. (2) Where the materials placed before the Court disclose a 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case, and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him, while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 19 2026:HHC:28408 (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he were conducting a trial.” 16. In M.E. Shivalingamurthy v. Central Bureau of Investigation Bengaluru, (2020) 2 SCC 768: (2020) 1 SCC (Cri) 811, this Court has held as under: — “17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz. P. Vijayan v. State of Kerala and discern the following principles: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. 17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, “cannot show that the accused committed the offence, then, there will be no sufficient ground for proceeding with the trial”. 20 2026:HHC:28408 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion that can form the basis for drawing up a charge and refusing to discharge the accused. 18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar). The expression, “the record of the case”, used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).” (emphasis supplied) 17. Consequently, at the stage of discharge, a strong suspicion suffices. However, a strong suspicion must be found on some material which can be translated into evidence at the stage of trial. 17. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 21 2026:HHC:28408 18. Learned Trial Court held that the statement made by the co-accused is inadmissible and cannot be used to frame charges. No fault can be found with the finding recoded by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by an accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It was also held that the confession made by the co-accused is inadmissible under Section 25 of the Indian Evidence Act. It was observed at page 568: - 44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.” 22 2026:HHC:28408 19. It was held in Surinder Kumar Khanna vs Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC 271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another co-accused and can only be utilised to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a police officer during the investigation is hit by Section 25 of the Indian Evidence Act and is not saved by the provisions of Section 67 of the NDPS Act. It was held in Karan Talwar vs. State of Tamil Nadu 2024 SCC Online SC 3803 that the confession made by the co-accused does not constitute an incriminating matter sufficient to frame charges against him. It was observed: “10. As is evident from the said Section, the alleged offence is the consumption of a narcotic drug or psychotropic substance other than those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No. 13 based on the confession statement of co-accused, viz., accused No. 1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime. This view has been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337; 1998 INSC 364, wherein it was 23 2026:HHC:28408 stated that a co-accused's confession containing incriminating matter against a person would not by itself suffice to frame a charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination, and instead, going by the complaint, Witness No. 23, he smelled the accused. The less said, the better, and we do not think it necessary to comment upon the adoption of such a course. We need only to say that even if he tendered such evidence, it would not help the prosecution in any way. There is absolutely no case that any contraband was recovered from the appellant. As regards the confession statement of the appellant in view of Section 25 of the Indian Evidence Act, 1872, there can be no doubt with respect to the fact that it is inadmissible in evidence. In this context, it is worthy to refer to the decision of this Court in Ram Singh v. Central Bureau of Narcotics (2011) 11 SCC 347; 2011 INSC 342. In the said decision, this Court held that Section 25 of the Indian Evidence Act would make a confessional statement of the accused before police inadmissible in evidence, and it could not be brought on record by the prosecution to obtain a conviction. Shortly stated, except for the confessional statement of co-accused No. 1, there is absolutely no material available on record against the appellant. 11. When this be the position, the question is whether the two Courts were justified in holding that there is a prima facie case against the appellant to proceed against him. In this contextual situation, it is relevant to refer to the decision of this Court in Dipakbhai Jagadishchandra Patel v. State of Gujarat (2019) 16 SCC 547; 2019 INSC 568. Paragraphs 23 and 24 of the said decision are relevant for the purpose of this case, and they read thus: — “23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would 24 2026:HHC:28408 be the material that is produced and relied upon by the prosecution. The s not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced, after a full-fledged trial, and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is that the court must be satisfied that, with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be a pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. (emphasis supplied) 24. Undoubtedly, this Court has in Suresh Budharmal Kalani [Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337], taken the view that a confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame a charge against it. We may incidentally note that the Court has relied upon the judgment of this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275]. We notice that the observations, which have been relied upon, were made in the context of an appeal that arose from the conviction of the appellant therein after a trial. The same view has been followed undoubtedly in other cases where the question arose in the context of a conviction and an appeal therefrom. However, in Suresh Budharmal Kalani [Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337], the Court has proceeded to take the view that only 25 2026:HHC:28408 on the basis of the statement of the co-accused, no case is made out, even for framing a charge.” 12. As noted hereinbefore, the sole material available against the appellant is the confession statement of the co- accused, viz., accused No. 1, which undoubtedly cannot translate into admissible evidence at the stage of trial and against the appellant. When that be the position, how can it be said that a prima facie case is made out to enable the appellant to stand the trial? There can be no doubt with respect to the position that standing the trial is an ordeal and, therefore, in a case where there is no material at all which could be translated into evidence at the trial stage, it would be a miscarriage of justice to make the person concerned stand the trial.” 20. The prosecution has relied upon call detail records to connect the petitioner to the commission of a crime; however, the call detail records do not constitute any legally admissible evidence in the absence of details about what was said by the parties. The Delhi High Court held in Shyam Gupta v. State, 2023 SCC OnLine Del 1490, that it is impermissible to frame charges based on the call detail record. It was observed: “12. From the above observations, it is apparent that the learned Special Judge had proceeded to frame a charge qua petitioner no. 3 on the basis of CDR, which reflected that all three accused persons were in regular contact on 15.09.2016 and 18.09.2016 (the date of apprehension of accused Shyam Gupta and Saurabh Kumar). 13. Admittedly, there is no conversation recorded with respect to the aforesaid calls. A perusal of the chargesheet would reflect that the reliance on the CDR is being placed in the background of the disclosure statement made by the 26 2026:HHC:28408 co-accused, Shyam Gupta and Saurabh Kumar, as well as the disclosure given by the petitioner no. 3. Needless to state, these disclosure statements are inadmissible in nature. 14. The Hon'ble Supreme Court, in Dilawar Balu Khurane v. State of Maharashtra, (2002) 2 SCC 135, has observed that while framing charges, the Judge has the power to ascertain whether the materials on record disclose ‘grave suspicion’ against the accused, which has not been explained. It has been held as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of 27 2026:HHC:28408 India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609]).” 15. Applying the aforesaid principle to the facts of the present case, it is clear that the only evidence against petitioner no. 3 is the CDR, which may create a suspicion but not a grave suspicion. If one examines the CDR sans disclosure statement, then there is nothing on record to link the said calls to the recovery in question. There is no other material placed on record by the prosecution in the chargesheet to support the allegations against the present petitioner with respect to her involvement with the contraband allegedly recovered from the co-accused persons. No recovery was effected from the petitioner's number. 3 or at her instance.” 21. It was submitted that the conspiracy is hatched in secrecy, and it is difficult to get the evidence to connect a person with the conspiracy. This submission will not help the prosecution because it is for the prosecution to collect the evidence showing the conspiracy, and a person cannot be put on trial simply because of some suspicion. 22. It was submitted that the offences involving narcotics affect society adversely, and the learned Trial Court erred in discharging the respondent/accused. This submission will also not help the prosecution. It is trite to say that the fouler the crime, the stricter the proof. The Court cannot be swayed by the nature of the crime to frame the charges against an innocent person simply because the nature of the crime is heinous, and the burden is upon 28 2026:HHC:28408 the prosecution to bring on record material to justify the framing of the charges. 23. In the present case, no such material was brought on record, and the learned Trial Court was justified in discharging the accused. 24. No other point was urged. 25. In view of the above, there is no infirmity in the order passed by the learned Trial Court; hence, the present petition fails, and it is dismissed. Pending applications, if any, also stand disposed of. (Rakesh Kainthla) Judge 14th , July 2026. (ravinder)