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TMI Blog2024 (9) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... ciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It is also settled law that while considering an application seeking discharge from a case, the Court is not expected to go deep of the probative value of the material on record, but on the other hand, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, and for that purpose, the Court cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is a main trial. Since the gold was seized from the possession of the pillion rider of the motorcycle which was driven by the petitioner, whether the petitioner was also involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t against the petitioner and another for the offences under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 and that the case was taken on file in C.C.No.43 of 2021 and is pending on the file of the Additional Chief Judicial Magistrate, Madurai. It is further evident that the prosecution has examined 5 witnesses as P.W.1 to P.W.5 and exhibited 16 documents as Exs.P.1 to P.16 during the pre charge evidence and after closure of the prosecution side evidence and when the case was pending for framing of charges, the petitioner-first accused has filed the petitioner under Section 245(2) Cr.P.C., seeking discharge from the above case. 3. The petitioner's case is that for initiating prosecution proceedings against any person under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given any liberty to cross-examine the assayer in the adjudication proceedings, despite the request made by the petitioner, that DRI had identified that Shri Faji was instrumental in the smuggling activities, but there was no proposal made in the SCN apprehension of Shri Faji even in future, that the gold bars were not seized from the possession of the petitioner and it was seized from the possession of the pillion rider Shri.K.Ramanathan, while the petitioner was driving the motorcycle at the time of interception of the officers, that the petitioner has not claimed the ownership over the gold and the petitioner is no way connected with the seized gold, that DRI has not established the involvement of the petitioner in the seizure of gold an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements, but also relies on the other materials to prove the seizure and smuggling, that the contention of the petitioner is that the main accused Fazi has not been apprehended cannot be a gound for discharge or acquittal and that therefore, the petition is liable to be dismissed. 5 . Before entering into further discussion, it is necessary to refer the judgment of the Hon'ble Supreme Court in State by the Inspector of Police, Chennai Vs. S.Selvi and another reported in (2018) 13 SCC 455. 7. It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he was conducting a trial 6. It is settled law that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. 7. It is also settled law that while considering an application seeking discharge from a case, the Court is not expected to go deep of the probative value of the material on record, but on the other hand, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, and for that purpose, the Court cannot conduct a roving enquiry into the pros a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine him in the adjudication proceedings and that the denial of the adjudicating authority would go to show that he was not satisfied with the assayer's evidence. As rightly contended by the learned Senior Counsel for the respondent, when the petitioner himself has stated that he was not claiming any ownership over the gold seized and he is no way connected with the seized gold and he has no objection to confiscate the seized gold, the question of permitting the petitioner to cross-examine the assayer does not arise at all and that too at the pre-charge stage. 11. Though the petitioner has challenged the sanction order on the ground that the sanction was accorded without considering the nature of evidence, the role of the person in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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