Allowed

Sri. Shabrinath Patil v. the State of Karnataka

Karnataka HC18 Apr 2024CRL.P/13116/2023

Case brief

AI extract

What is this about?

High Court quashed proceedings for Sections 22(b) and 22(c) NDPS Act offenses. It held that trial vitiated due to non-compliance with mandatory recording of information under Section 42(1) and failure to inform rights under Section 50.

What did the court decide?

Proceedings in Special Criminal No. 531/2023 arising from FIR Cr. No. 86/2022 were quashed insofar as they relate to the petitioners.

Sri. Shabrinath Patil Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 13116 OF 2023 C/W CRIMINAL PETITION NO. 12689 OF 2023

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IN CRIMINAL PETITION NO. 13116 OF 2023:

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BETWEEN:

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SRI. SHABRINATH ARVIND PATIL S/O ARVINDA ERANANGOWDA APTIL AGED ABOUT 26 YEARS R/AT NO 28/B, 1ST CROSS K BLOCK, A C GIRI ROAD KUVEMPUNAGARA, MYSURU 570 011 ALSO AT HOUSE NO 1125 PNB BANK, OPP. ASHOKA CIRCLE RANEBENNUR 581 115.

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…PETITIONER

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(BY SRI. K N PHANINDRA, SENIOR COUNSEL FOR SRI. SRIKANTH PATIL K.,ADVOCATE)

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AND:

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY ASHOKPURAM POLICE STATION MYSURU, NOW REP BY STATE PP HIGH COURT OF KARNATAKA BUILDING BENGALURU 560 001.

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SRI MALLESH A S/O KANNAPPA AGED ABOUT 42 YEARS POLICE INSPECTOR ORGANIZED CRIME WING CENTRAL CRIME BRANCH MYSURU 570 011.

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…RESPONDENTS

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(BY SRI. B A BELLIAPPA, SPP-1 A/W SRI. VINAY MAHADEVAIAH, HCGP FOR R1)

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NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO QUASH THE FIR IN CR.NO.86/2022 DATED 23.12.2022 (ANNEXURE A) COMPLIANT DATED 23.12.2022 (ANNEXURE A-1) CHARGE SHEET DATED 30.05.2023 (ANNEXURE A-2) REGISTERED BY THE FIRST RESPONDENT ASHOK PURAM, POLICE STATION FOR THE OFFENCE P/U/S.22(b),22(c) OF NDPS ACT 1985 AND ALL FURTHER PROCEEDINGS IN SPL.C.NO.531/2023 PENDING ON THE FILE OF THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU CITY IN SO FAR AS IT RELATES TO PETITIONER AND ETC.

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IN CRIMINAL PETITION NO. 12689 OF 2023:

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BETWEEN:

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SRI. THAMMAIAH. A. M. S/O. A. P. MOTTAIAH, AGED ABOUT 26 YEARS, RESIDING AT NO. 323, LALITHA NILAYA, 4TH CROSS, YERAGANAHALLI, MYSURU -570 011.

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…PETITIONER

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(BY SRI. K N PANINDRA, SENIOR COUNCEL FOR SMT. LEELA P, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY THE ASHOKAPURAM POLICE STATION MYSURU, REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001.

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REPRESENTED BY SPP OFFICE, HIGH COURT OF KARNATAKA, BANGALORE-560 001.

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MALLESH. A S/O. KANNAPPA AGED ABOUT 42 YEARS POLICE INSPECTOR ORGANIZED CRIME WING

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3 - NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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CENTRAL CRIME BRANCH MYSURU - 570 011.

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…RESPONDENTS

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(BY SRI. B A BELLIAPPA, SPP-1 A/W SRI. VINAY MAHADEVAIAH, HCGP)

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THIS CRL.P IS FILED U/S 482 CR.PC PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO QUASH FIR IN CR.NO.86/2022 DATED 23.12.2022, COMPLAINT DATED 23.12.2022 PURSUANT TO CHARGE SHEET DATED 30.05.2023 REGISTERED BY THE 1ST RESPONDENT ASHOKPURAM POLICE STATION, FOR OFFENCE P/U/S 22(b) AND 22(c) OF NDPS ACT, 1985 AND ALL FURTHER PROCEEDINGS IN SPL.C.NO.531/2023, PENDING ON THE FILE OF THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU CITY, WITH RESPECT TO ACCUSED NO.2, WHO IS THE PETITIONERS HEREIN.

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

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ORDER

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The petitioners, who are the accused, have been chargesheeted for offenses punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act, 1985').

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The prosecution's case is that credible information was received by the complainant, a Police Inspector from the Central Crime Branch (CCB), Mysuru, on 23.12.2022 at 3:00 p.m. within the jurisdictional limits of Ashokapuram Police Station, Mysuru. The information indicated that behind House No. 38B, 1st Cross, K- Block, Kuvempu Nagar, two men, accompanied by a green Royal Enfield bullet motorcycle, were attempting to sell MDMA and other narcotic substances. Acting on this information, the Police Inspector, along with his staff members, a Gazetted Officer, the

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4 - NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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Assistant Director of Mysore Regional Forensic Laboratory, and two pancha witnesses, went to the specified location. Upon apprehending accused Nos. 1 and 2, it was discovered that they were in possession of MDMA, Ecstasy tablets, and LSD blots with the intention of selling these substances to the public. The search was conducted in the presence of a Gazetted Officer, who had accompanied the raiding team, and two panchas.

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Following the investigation, the police submitted a charge sheet before the Special Court. The Special Court, upon examining the charge sheet, took cognizance of the aforementioned offenses. The petitioners have now filed these petitions in response to this action.

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Sri K.N.Phanindra, learned Senior Counsel representing the petitioners, argues that upon receiving credible information, the concerned Police Inspector failed to record the information in writing as mandated by Section 42(1) of the NDPS Act, 1985. Furthermore, he contends that the Police Inspector conducted a search on the accused without informing them of their rights as enumerated in Section 50 of the NDPS Act, 1985. Therefore, the mandatory provisions having been violated, the trial stands vitiated. In support of his argument, he relies on the following decisions of the Hon'ble Supreme Court:

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1. Roy V.D. vs. State of Kerala - (2000) 8 SCC 590;

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1. Najmunisha vs. State of Gujarat - 2024 SCC OnLine SC

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5 - NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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On the other hand, Sri B A Belliappa, learned State Public Prosecutor-1 for the respondent-State, contends that whether there has been substantial compliance with Section 42 of the NDPS Act, 1985 is a matter to be considered at the time of trial. He asserts that non-compliance with the said provision does not vitiate the trial and therefore seeks the dismissal of the petitions.

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Having considered the submissions of the learned counsel for the parties, the following points are noted:

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Section 42 of the NDPS Act, 1985 deals with the power of entry, search, seizure, and arrest without warrant or authorization. It mandates that when a police officer receives information regarding any narcotic substance related to an offense punishable under this Act, the information must be recorded in writing.

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Section 42(2) stipulates that where an officer records any information in writing under Sub-Section (1), a copy of the recorded information must be sent to his immediate official superior within seventy-two hours.

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Section 50 of the NDPS Act, 1985 addresses the conditions under which the search of persons must be conducted. It requires that when an officer authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42, or Section 43, the person being searched should be informed of their right to be taken without unnecessary delay to the nearest Gazetted Officer or Magistrate if they so require.

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NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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In this case, it is admitted that the Police Inspector, upon receiving information that the accused were attempting to sell narcotic drugs, did not record the information in writing as required under Section 42(1) of the NDPS Act, 1985. The seizure panchanama indicated that the Police Inspector conducted the search on the petitioners without informing them of their rights in the presence of the nearest Gazetted Officer or Magistrate.

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The Hon'ble Supreme Court in Roy V.D. (supra) has ruled that non-compliance with the mandatory provisions of Section 42 of the NDPS Act, 1985 vitiates the trial. In para-18, it was held that Section 482 of the Cr.P.C. must be exercised by the High Court to prevent the abuse of the process of any court or to secure the ends of justice when the search and seizure were conducted in violation of Sections 42 and 42(1) of the NDPS Act, 1985.

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The Hon'ble Supreme Court in Najmunisha (supra) observed that in a case involving explicit non-compliance with the statutory requirements under the NDPS Act, 1985, the trial would be vitiated, as seen in Chhunna alias Mehtab vs. State of Madhya Pradesh - (2002) 9 SCC 363.

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In the case of State of Punjab vs. Balbir Singh - (1994) 3 SCC 299, the Apex Court ruled that the provisions contained in Section 42 are mandatory, and contravention of the same would be fatal to the prosecution case and vitiate the trial.

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NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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In Ritesh Chakarvarti vs. State of M.P. - (2006) 12 SCC 321, the Apex Court held that searches should normally be conducted by a Magistrate or a Gazetted Officer, and even the presence of a Gazetted Officer in the raiding team would not suffice to meet the requirements of Section 50 of the NDPS Act, 1985.

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However, in the case of State of Punjab vs. Baldev Singh - (1999) 6 SCC 172, the Apex Court ruled that whether or not the safeguards provided in Section 50 have been duly observed must be determined by the court based on the evidence led at the trial, and it would not be permissible to cut short a criminal trial. Therefore, Section 50 of the NDPS Act, 1985, would not render the trial vitiated. Nonetheless, the continuation of criminal proceedings against the petitioners would constitute an abuse of the legal process due to non-compliance with the mandatory provision contained in Section 42(1) of the NDPS Act, 1985.

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In light of the preceding analysis, the registration of the FIR by respondent No.1 for the offenses punishable under Sections 22(b) and 22(c) of the NDPS Act, 1985, culminating in trial, stands vitiated. . Accordingly, I pass the following:

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ORDER

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i) The petitions are allowed.

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ii) The proceedings in Spl.C No.531/2023 pending on the file of the learned Principal District and Sessions Judge, Mysuru City arising out of FIR in Crime No.0086/2022 dated 23.12.2022 registered by respondent No.1 - Ashok Puram Police Station,

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8 - NC: 2024:KHC:15402 CRL.P No. 13116 of 2023 C/W CRL.P No. 12689 of 2023

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Mysuru insofar as it relates to the petitioners - accused is hereby quashed.

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Sd/JUDGE

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BKM

Sri. Shabrinath Patil v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. Shabrinath Patil v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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