Allowed

Sri Shivaprakash @ Chippi v. State of Karnataka

Karnataka HC25 Mar 2024CRL.P/1010/2022

Case brief

AI extract

What is this about?

High Court quash proceedings against three accused charged under NDPS Act. Court held FIR impermissible as initial statement did not disclose offence against on account. Also, joining past incidents outside FIR period violated Section 219 CrPC and rendered continuing proceedings an abuse of process.

What did the court decide?

Proceedings in Spl. C.C. No.212/2021 regarding Accused Nos. 1, 14 and 22 are quashed.

Sri Shivaprakash @ Chippi Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

¶1

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF MARCH, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

¶5

CRIMINAL PETITION NO. 1010 OF 2022

¶6

C/W

¶7

WRIT PETITION NO. 2429 OF 2022 (GM-RES), WRIT PETITION NO. 18982 OF 2022 (GM-RES)

¶8

IN CRIMINAL PETITION NO. 1010 OF 2022:

¶9

BETWEEN:

¶10

SRI SHIVAPRAKASH @ CHIPPI S/O ERAPPA, AGED ABOUT 45 YEARS, R/AT NO.19 SHILPA NILAYA 1ST CROSS, GANESHA BLOCK NANDINI LAYOUT BENGALURU-560 096. ADDRESS WRONGLY INDICATED IN THE CHARGE SHEET AS R/AT RENAISSANCE APARTMENT PHASE-I, FLAT NO.301 BEHIND COLUMBIA ASIA HOSPITAL YASHAVANTHPUR, BENGALURU-560 022.

¶11

Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

¶12

(BY SRI. AMAR CORREA, ADVOCATE)

¶13

…PETITIONER

¶14

AND:

¶15

STATE OF KARNATAKA COTTON PETE POLICE STATION BENGALURU -560 053 REP BY STATE PUBLIC PROSECUTOR/HCGP HIGH COURT OF KARNATAKA BENGALURU-560 001.

¶16

…RESPONDENT

¶17

(BY SRI. VEERANNA G TIGADI, SPECIAL P.P)

¶18

¶19

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶20

THIS CRL.P FILED U/S.482 CR.P.C BY PRAYING TO SET ASIDE THE ORDER DATED 08.03.2021 PASSED BY THE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, SPECILA JUDGE (NDPS) BANGALORE IN SPL.C.C.NO.212/2021 (ARISING OUT OF CR.NO.109/2020 OF THE RESPONDENT NO.1 POLICE) THEREBY TAKING COGNIZANCE, FOR THE OFFENCES P/U/S 21,21(C),27(b),27A,29 OF NDPS ACT R/W SEC.120B,201 OF IPC AS AGAINST THE PETITIONER WHO IS ACCUSED NO.1 VIDE ANNEXURE-A AND ETC.

¶21

IN WRIT PETITION NO. 2429 OF 2022:

¶22

BETWEEN:

¶23

MR. ADITHYA MOHAN AGARWAL @ ADITHYA AGARWAL S/O MOHAN KUMAR AGARWAL AGED ABOUT 41 YEARS OCCUPATON SENIOR MANAGER FINANCE ACCENTURE BANGALORE R/AT NO 55, 5TH FLOOR SHALIMAR APARTMENT RICHMOND TOWN BANGALORE-560 025.

¶24

…PETITIONER

¶25

(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. NASIR ALI, ADVOCATE)

¶26

AND:

¶27

STATE OF KARNATAKA BY COTTONPET POLICE STATION AND CCP POLICE BANGALORE CITY-560 043.

¶28

POLICE INSPECTOR WOMEN AND DRUGS WING CENTRAL CRIME BRANCH POLICE BANGALORE-560 053.

¶29

MR K C GAUTAM ASSISTANT COMMISSIONER OF POLICE CENTRAL CRIME BRANCH POLICE BANGALORE CITY - 560 053

¶30

¶31

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶32

POLICE INSPECTOR COTTONPET POLICE STATION BANGALORE CITY-560 043.

¶33

(ALL ARE REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR, MR VEERANNA G TIGADI, ADVOCATE, BANGALORE)

¶34

…RESPONDENTS

¶35

(BY SRI. VEERANNA G TIGADI, SPECIAL P.P)

¶36

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA AND UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE FIR AS PER ANNEXURE-A,CHARGESHEET DATED 01.03.2021 AS PER ANNEXURE-B,SUPPLEMENTARY CHARGESHEET AS PER ANNEXURE-C AND ORDER OF TAKING COGNIZANCE DATED 08.03.2021 AS PER ANNEXURE-D PASSED IN SP.C.C.NO.212/2021 PENDING ON THE FILE OF HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE CITY, WHICH IS ARISING OUT OF CRIME NO.109/2020 OF COTTONPET POLICE STATION, BANGALORE CITY, FOR OFFENCES UNDER SECTIONS 21, 21(C), 27(b), 27A, 29 OF NDPS ACT READ WITH SECTIONS 120-B OF AND 201 OF INDIAN PENAL CODE VIDE ANNX-A TO D IN RESPECT OF PETITIONER,AS AN ABUSE OF PROCESS OF LAW AND ETC.

¶37

IN WRIT PETITION NO. 18982 OF 2022:

¶38

BETWEEN:

¶39

KUM. ARCHANA GALRANI @ SANJANA GALRANI D/O MANOHAR GALRANI AGED ABOUT 32 YEARS R/AT NO.001 AND 002, 1ST FLOOR SAI TEJA SHRINE APARTMENT RAMAKRISHNA HEGDE ROAD DOOPANAHALLI, DOMALURU BANGALORE-560 025.

¶40

…PETITIONER

¶41

(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N A, ADVOCATE)

¶42

4 - NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶43

AND:

¶44

STATE OF KARNATAKA BY COTTONPET POLICE STATION AND CCB POLICE BANGALORE CITY-560 043.

¶45

POLICE INSPECTOR WOMEN AND DRUGS WING CENTRAL CRIME BRANCH POLICE N T PETE, BANGALORE-560 053.

¶46

MR K C GAUTAM ASSISTANT COMMISSIONER OF POLICE CENTRAL CRIME BRANCH POLICE N T PETE, BANGALORE-560 053.

¶47

THE POLICE INSPECTOR COTTONPET POLICE STATION BANGALORE-560 043.

¶48

(REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR MR VEERANNA G TIGADI ADVOCATE BANGALORE - 560 025)

¶49

…RESPONDENTS

¶50

(BY SRI. VEERANNA G TIGADI, SPECIAL P.P)

¶51

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA AND UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE FIR REGISTERED IN CRIME NO.109/2020 FOR OFFENCES UNDER SECTIONS 21, 21(C), 22(C), 27A, 27-B AND 29 OF NDPS ACT ON THE FILE OF COTTONPET POLICE STATION, BANGALORE CITY WHICH IS PENDING ON THE FILE OF HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOF NDPS CASES, BANGALORE CITY AS PER ANNEXURE-A AT PARA-2 AND ETC.

¶52

THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

¶53

5 - NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶54

ORDER

¶55

The petitioners before this Court are Accused Nos.1, 14 and 22 respectively, who are charge sheeted for the offences punishable under Sections 21, 21(c), 27(b), 27A, 29 of NDPS Act, 1985 read with Section 120(B) chargesheets of A 14 and A 22 , 201 IPC, and are preferring the criminal petition and the two writ petitions respectively, to quash the proceedings in Spl. C.C. No. 212/2021, wherein the Special Judge has taken cognizance of the charges, vide order dated 08.03.2021.

¶56

The complainant K. C. Goutham, Asst. Commr. of Police, Anti- Narcotics Wing, Central Crime Branch (Respondent No 3) is said to have furnished suo motu complaint to the Respondent No 4 Cottonpet Police Station, stating that he is in possession of information of consumption of narcotics in parties organized in various hotels and other places visited by celebrities, DJs (disc jockeys), software engineers and others, and that he has discovered certain names of individuals and other information, in pursuance of the enquiry made with one Mr. B.K. Ravishankar. The above information was gathered from the voluntary statement of B. K. Ravishankar (Accused No 14) recorded under Section 67 of the NDPS Act.

¶57

Thereafter, the Respondent Police registered an FIR in Crime No.109/2020, dated 04.09.2020 against the Petitioners herein. The Final Police report/charge sheet was filed on 08.06.2021 and the Petitioners herein were arrayed as Accused

¶58

¶59

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶60

no. 1, Accused no 14, Accused no. 22, respectively against the above mentioned charges.

¶61

It is the specific allegation against the Accused No 1, a realtor by profession, that he is friends with the Accused No 2, a film actress, who would introduce the former to other businessmen and youngsters at parties to supply them with narcotic drugs. Furthermore, it is alleged that the Accused No 1, alongside Accused No 2 and 16 had consumed contraband like ecstasy pills in parties organized by Accused No 1, Accused no 2 and others. Furthermore, it is alleged that the Accused No 1 has instigated others also to consume ecstasy pills during parties.

¶62

It is pertinent to note that the FIR in Crime No. 109/2020 is recorded for the time period 11.04.2020 to 04.09.2020.

¶63

It is the specific allegation against the Accused No 14 that she used to illegally procure narcotic substances and drugs, and consumed and used to instigate others to consume the narcotic drugs in the parties organized in the year 2017 and 2018. Further, She had tested positive for Cocaine and MDMA, in the ‘second’ hair test sent to CFSL Hyderabad, dated 05.12.2020. However it is pertinent to note that that second CFSL Report was taken after the first blood, urine and hair samples subjected to analysis in FSL and then to CFSL in Hyderabad tested negative, on 10.09.2020. Furthermore, the second hair test was conducted upon the expiry of more than 85 days of the accused No 14 being in

¶64

¶65

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶66

custody. And, that no recovery was made of any drug or incriminating article at the time of her arrest on 08.09.2020.

¶67

It is the specific allegation against the accused No.22 that he used to illegally procure narcotic substances and drugs, and consumed and used to instigate others to consume the narcotic drugs in the parties organized in the year 2015, 2017 and 2018.

¶68

The case of the prosecution is that the data retrieved from the mobile phones belonging to B. K. Ravishankar - accused No.16, who revealed that he had discussed with one Loom Pepe Samba @ Simon with regard to procuring, purchasing and selling and consumption of narcotic substances, so also, the parties were organized in various clubs, hotels and music concerts, and they used to sell narcotic substances to the celebrities, few actors, DJ, software engineers, and other customers to attend the said parties for making unlawful gain.

¶69

Sri Hashmath Pasha, learned Senior counsel representing the accused Nos.14 and 22 would submit that the petitioners herein were not implicated in the FIR, and although no materials were collected against these petitioners for having committed the offences during the said period, and then statements recorded only establishes the past incidents, which had taken place between 2015 and 2019. He further argued that there is no recovery from the petitioners during the course of investigation, and in the absence of the same, the charge sheet submitted is without

¶70

¶71

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶72

any substance. He further submits that in the absence of any registration of FIR for the past incidents, the charge sheet submitted for the aforesaid offences for the period 11.4.2020 to 4.9.2020 lacks authority. He further submits that this Court vide order dated 17.1.2022 in WP No.1983/2021 filed by the accused No.3 against whom the similar were charges made quashed the charge sheet stating that since the charge sheet material does not establish that the accused No.3 had not committed any offence during the period 11.4.2020 to 4.9.2020, therefore, the petitioners against whom the charges are framed requires to be quashed to maintain parity. He further submits that the order passed by the coordinate Bench of this Court has attained finality in light of dismissal of the SLP preferred by the Respondent State by the Hon'ble Apex Court in SLP (Criminal) No.1622/2022 (DD 19.3.2024).

¶73

The learned counsel for the petitioner - accused No.1 submits that the statement of one B. K. Ravishankar on the basis of which, the FIR registered did not disclose the commission of offence alleged against the petitioner- accused No.1. Therefore, in the absence of any allegation disclosing the commission of offence, the registration of FIR was impermissible as held by the Hon'ble Apex Court in the case of State of Punjab -vs- Davinder Pal Singh Bhullar and others (2011) 14 SCC 770. He further submits that although no recovery was made by the petitioner - accused No.1 for having procured and supplied drugs, the petitioner - accused No.1 was not subjected to chemical analysis to establish that the

¶74

¶75

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶76

petitioner - accused No.1 had consumed drugs, and sought for quashing the FIR proceedings.

¶77

Per contra, the learned Special Public Prosecutor for the respondent submits that during the course of investigation, the statement of the accused No.14 was recorded, in which, she confessed that she was in contact with one Pratheek Shetty, who supplied the drugs for self consumption, and also for distribution of the same in the parties, and upon search, Ecstasy pill weighing 11.5 gram, which is commercial quantity, was recovered. Therefore, the statement of the accused No.14 led to discovery of a drug, which was seized from the house of Pratheek Shetty is clearly saved under Section 27 of the Indian Evidence Act.

¶78

In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Mehboob Ali -vs- State of Rajasthan (2016) 14 SCC 640. He further submits that the similar statement of Veeren Kanna - accused No.3 was recorded, which led to discovery of Ecstasy pills. The said statement is covered under Section 27 of the Indian Evidence Act. Therefore, this aspect of the matter was not considered by the coordinate Bench in the aforesaid petition, and the order cannot be considered as precedent for deciding these petitions.

¶79

Considered the submissions of the learned counsel for the parties.

¶80

10 - NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶81

The statement of B K Ravishankar under Section 67 of the NDPS Act was recorded, in which, the only allegation against the accused No.1 indicated that he is only involved in consuming liquor and smoking in the parties, and there is no allegation against the accused No.1 of either procuring or supplying or consuming drugs. Therefore, when the FIR does not disclose that the petitioners had committed the offences under the NDPS Act, the registration of FIR for the aforesaid offences insofar as it relates to the accused No.1 is impermissible, and the subsequent charge sheet lodged against the petitioners stands vitiated.

¶82

The Hon'ble Supreme Court in the case of State of Punjab -vs- Davinder Pal Singh Bhullar has ruled that it is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order, meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. It was further ruled that once the basis of a proceeding is gone, all the consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasijudicial and administrative proceedings equally.

¶83

The Hon'ble Supreme Court in the case of State of Haryana -vs- Bhajan Lal - (1992 Supp (1) SCC 335 has issued guidelines under what circumstances, this Court in exercise of power under Article 226 of Constitution of India/Section 482 of

¶84

11 - NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶85

Cr.PC can exercise of the power. Where the allegation made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

¶86

In the instant case, the FIR lodged Sri K. C. Goutham, Assistant Police Commissioner, CCB did not disclose the commission of cognizable offence alleged against the petitioner - accused No.1. The charge sheet material also does not establish that there was any recovery of drugs from the petitioner - accused No.1 nor the statement of the petitioner - accused No.1 led to discovery or recovery of any drugs from any of the co-accused. When there was no recovery made from the petitioner- accused No.1, the prosecution was obligated to subject the accused to chemical analysis for establishing that he had consumed drugs. No such exercise was undertaken to establish that the accused No.1 had consumed drugs.

¶87

The accused No.22 was arrested in connection with Crime No.588/2018 by the Banaswadi Police, and when he was in judicial custody, a body warrant was issued on 12.1.2021, and

¶88

12 -

¶89

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶90

thereafter, the charge sheet was filed on 1.3.2021, however, no material is produced along with charge sheet to substantiate that the petitioner had either procured or consumed drug. The case against the accused No.22 registered by the Banaswadi Police has been quashed by this Court vide order dated 27.7.2022 in Crl.P No.2493/2022 in Crime No.588/2018 registered making similar allegations of procuring and consuming narcotic drugs.

¶91

The accused No.14 in her voluntary statement is alleged to have stated that she attended the parties organized by Aditya Alva and his friend Kiran Karthik in 2019 and they had supplied Ecstasy and cocaine. She is further alleged to have stated that she procured Ecstasy, cocaine from Pratheeksh Shetty. Based on the voluntary statement of the accused No.14, the premises of Pratheeksh Shetty, who is arraigned as an accused was searched and upon search it is alleged that Ecstasy pills weighing 11.50 grams was seized.

¶92

The accused No.3 against whom the similar charges were made had approached this Court WP No.1983/2021 challenging the very same impugned proceedings. The coordinate Bench of this Court by order dated 17.1.2022 quashed the proceedings against the accused No.3 by observing as follows:

¶93

The charge against the accused No.3 was that he organized parties at several places in the year 2015, 2018 and 2019 and sold narcotic substances and drugs. The past incidents of crime detected for the first time during the investigation in Crime No.109/2020, must be tried, but it must be in accordance with the procedure established by law. It so happens that many times, the past incidents of crime will be detected when the investigation is undertaken in connection with some other cases. Whenever, past

¶94

13 -

¶95

NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶96

crimes committed by the same person come to light, nothing prevents the police from registering the separate FIR for every distinct offence detected, and filing a separate charge sheet, if all those offices cannot be tried jointly in accordance with Section 219 of Cr.PC.

¶97

"According to Section 219(1), if a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. That means, not more than three distinct offences committed by the same person within a span of twelve months may be tried in one trial. In this case, as the charge sheet shows the petitioner's involvement is there right from 2015. If the FIR No. 109/2020 is in connection with offences said to have been committed between 11.04.2020 and 04.09.2020, the petitioner cannot be tried for the earlier offences of the years 2015, 2018 and 2019, in view of Section 219(1) of Cr.P.C. It was necessary for the police to have registered separate FIRs for those past offences and filed separate charge sheets after investigation. Probably, the police might be under the impression that the same FIR would suffice even for those offences relating to the years 2015, 2018 and 2019."

¶98

The petitioners - accused herein have been chargesheeted for the offences relating to the year 2015, 2018 and 2019. however, the FIR in Crime No.109/2020 was in connection with offences said to have been committed between 11.4.2020 to 4.9.2020, and in view of Section 219(1) of Cr.PC, the petitioners cannot be tried for earlier offences alleged to have been committed , and it was necessary for the police to register separate FIRs as ruled by the coordinate Bench of this Court in WP No.1983/2021. Therefore, the continuation of the criminal proceedings against the petitioners will be an abuse of the process of law. Accordingly, I pass the following:

¶99

14 - NC: 2024:KHC:12213 CRL.P No. 1010 of 2022 C/W WP No. 2429 of 2022 WP No. 18982 of 2022

¶100

ORDER

¶101

i) The petitions stand allowed.

¶102

ii) The impugned proceedings are hereby quashed:

¶103

Crl.P No.1010/2022:

¶104

Spl.CC No.212/2021 (arising out of Crime No.109/2020 of the respondent No.1 police) pending on the file of the learned XXXIII Additional City Civil and Sessions Judge, Special Judge (NDPS), Bengaluru City insofar as it relates to the petitioner - accused No.1.

¶105

WP No.2429/2022:

¶106

Spl.CC No.212/2021 (arising out of Crime No.109/2020 of Cottonpet Police Station, Bangalore City) pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore City insofar as it relates to the petitioner - accused No.22.

WP No.18952/2022:

Sd/JUDGE

BKM

Sri Shivaprakash @ Chippi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Shivaprakash @ Chippi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Thippeswamy @ Sanna Thippeswamy Vs Karnataka Power Transmission Corporation Limited

Arun Kumar @ Vikas.B v Vs State by Karnataka

R. Raghupathi Gowda Vs the Karnataka State Transport Authority

Federation of Karnataka Chambers of Commerce and Industry Vs the Government of Karnataka

A Janardhan Shetty Vs State of Karnataka

Shri Radhakrishna Yuvaka Bajana Sangha (R) Vs State of Karnataka