Allowed

Mr. Sharif Hassan Mashuri v. the State of Karnataka

Karnataka HC22 Oct 2024WP/1933/2024

Case brief

AI extract

What is this about?

Petitioner sought quashing of NDPS trial proceedings arising from Crime No.588/2018, relying on a co-ordinate bench order quashing similar proceedings against a co-accused. Following that order, and noting the Supreme Court notice therein covered only FIR 109/2020, the High Court allowed the writ petition and quashed the proceedings, preserving liberty to prosecute afresh in accordance with law.

What did the court decide?

Proceedings against petitioner in Spl.C.C.No.529/2019 arising out of Crime No.588/2018, with FIR and charge sheet/supplementary charge sheet against him, quashed; liberty to prosecute afresh reserved.

Mr. Sharif Hassan Mashuri Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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NC: 2024:KHC:42469 WP No. 1933 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 1933 OF 2024 (GM-RES)

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BETWEEN:

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MR. SHARIF HASSAN MASHURI, S/O MR. ABDUL HAKIM GAVAYI, AGED ABOUT 35 YEARS, RESIDING AT NO. 1684/2, 'SALIHA MANSION', SULTHAN STREET, BEHIND KOLECO HEALTH COMPLEX, BHATKALA, UTTARA KANNADA DISTRICT - 581 320.

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…PETITIONER

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(BY SRI. RANGANATH REDDY R, ADVOCATE)

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AND:

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY BANASWADI POLICE STATION, BENGALURU CITY - 560 043.

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THE POLICE INSPECTOR, WOMEN AND NARCOTIC SQUAD POLICE, BENGALURU CITY - 540 023.

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THE POLICE INSPECTOR AND SHO, COTTONPET POLICE STATION, BENGALURU CITY.

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SRI. K.C. GOWTHAM, THE ASST. COMMISSIONER OF POLICE, C.C.B POLICE, BENGALURU CITY - 560 061

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(RESPONDENT NO. 1 TO 4 ARE REPRESENTED BY LEARNED S.P.P, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001).

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…RESPONDENTS

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(BY SRI. VEERANNA G. TIGADI, SPP)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS IN SPL.CC.NO.529/2019 PENDING ON THE FILE OF HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE, WHICH IS ARISING OUT OF CRIME NO.588/2018 OF BANASWADI POLICE STATION, BANGALORE CITY, AS PER ANNEXURE-D TO G AS AN ABUSE OF PROCESS OF LAW, CONSEQUENTLY IN SO FAR AS PETITIONER CONCERNED AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:42469 WP No. 1933 of 2024

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner is before this Court calling in question

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the proceedings in Spl.C.C.No.529/2019 of Banaswadi Police Station, Bengaluru City pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for N.D.P.S. cases, Bengaluru.

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Heard the learned counsel Sri. Ranganath Reddy R., appearing for the petitioner and Sri. Veeranna G. Tigadi, Special Public Prosecutor appearing for respondents.

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Learned counsel for the petitioner submits that the issue in the lis stands answered by this Court in W.P.No.2493/2022 disposed on 27.07.2022.

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The learned Special Public Prosecutor Sri. Veeranna G. Tigadi could not dispute the position of the law.

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NC: 2024:KHC:42469 WP No. 1933 of 2024

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In that light, I deem it appropriate to follow the

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said order and grant the same relief, that is granted to the petitioner in W.P.No.2493/2022.

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This Court in W.P.No.2493/2022 has held as

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follows:

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"3. This Court in W.P.No.1983/2021 has passed the following order:

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“8. After hearing both sides, firstly the events that led to registration of FIRs in Cr.Nos.588/2018 and 109/2020 may be traced. FIR 588/2018 pertains to seizure of 1.5 kilograms of cocaine, 940 grams of ecstasy pills, a Toyota car, a hero honda motor cycle, a mobile phone and cash of Rs.6,000/from three accused viz., Faith Chuks, Kante Henrey and Pratheek Shetty. B.K.Ravishankar was not arrayed as accused earlier. Charge sheet was filed on 30.4.2019 reserving further investigation under section 173(8) of Cr.P.C. It was on 3.9.2020 that B.K.Ravishankar was taken to custody in this crime number as accused no.4. Thereafter another police officer viz., K.C.Goutham subjected him to interrogation in connection with certain rumours about involvement of film actors in consumption of drugs. Based on his statement, FIR in Cr.No.109/2020 came to be

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NC: 2024:KHC:42469 WP No. 1933 of 2024

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registered showing the petitioner as accused no.3 therein. Therefore it is not in dispute that FIR No.109/2020 came to be registered only after B.K.Ravishankar was subjected to interrogation.

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9. Now in FIR.No.588/2018, the petitioner has been arrayed as accused no.5. The supplementary charge sheet filed in connection with FIR No.588/2018 shows that the petitioner had arranged Diwali Pataka party on 3.11.2018 at Taj Hotel, Bengaluru and another party at the Park Hotel, Bengaluru on 7.11.2018 and that in both the parties, he sold the drugs that he had purchased from accused no.1 to 3. The charge sheet filed in relation to FIR No.109/2020 shows that the petitioner was involved in the sale of drugs since the year 2015, that he had arranged a music party in E-zone Club, Marathahalli in March, 2018 and that he had arranged other parties on 9.10.2018, 25.01.2019, 1.6.2019, 8.3.2020 etc. The involvement of the petitioner, as can be made out from the charge sheet filed in relation to FIR.No.109/2020 came to light only after recording the statement of B.K.Ravishankar. If a separate FIR came to be registered thereafter, it is not understandable as to how the petitioner could be connected with FIR.No.588/2018 in relation to two parties said to have been arranged on 3.11.2018 and 7.11.2018. According to FIR No.588/2018, it was registered only in relation to raid held on

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2.11.2018. The further investigation in FIR.No.588/2018 led to implication of the petitioner as accused no.5. Further investigation must always relate to the incident of crime in respect of which charge sheet has been filed already. As has been held by the Supreme Court in the case of Vinay Thayagi Vs. Irashad Ali -2013(5) SCC 762, further investigation, reinvestigation and de-novo investigation or fresh investigation, take different meanings. Further investigation is always in accordance with Section 173(8) of Cr.P.C. with a view to collecting further evidence supplemental to the evidence already on record. It is not reinvestigation. In fact, the petitioner had moved for bail by filing Crl.P.No.684/2020 in relation to FIR No.588/2018. In the order passed in the said petition, it has been held that further investigation envisaged in section 173(8) of Cr.P.C., can be undertaken only with the permission of the court. It is also held that further investigation is not reinvestigation or fresh investigation and their meanings can be commonsensically understood. In this case it is alleged that the petitioner purchased the drugs from accused no.1 to 3 for the purpose of selling them in the parties that were arranged on 3.11.2018 and 7.11.2018. Even if these allegations were to be true, it cannot be said that the sales said to have been made by the

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petitioner on these two dates can be connected with FIR No.588/2018. It is pertinent to mention here that if the police could register a separate FIR in Crime No.225/2020 in connection with seizing a police uniform from the possession of the petitioner, it is not understandable as to why, the police did not think of registering a separate FIR in relation to incidents dated 3.11.2018 and 7.11.2018. Absolutely there are no materials to connect the petitioner with the raid conducted on 2.11.2018. As the FIR 588/2018 discloses, initially it was against accused 1 to 3 only and it was from their possession that certain articles were seized. Whatever the police detected in the course of further investigation was altogether a different incident of crime in respect of which a separate FIR was necessary. Thus viewed, as rightly argued by Sri. Hashmath Pasha, arraying the petitioner as accused no.5 in FIR No.588/2018 and subjecting him to prosecution in Spl.C.C.No.529/19 does not appear to be in accordance with procedure established by law.

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10. The petitioner has assailed of implicating him as an accused in FIR No.109/2020 in relation to offences punishable under Section 27(b), 27A, 29 and 21 of the NDPS Act said to have been committed in between the period 11.04.2020 and 04.09.2020. This FIR is not second FIR as has been contended by the

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petitioner. This is in relation to a distinct offence for the aforesaid period and not in relation to the offence in connection with which FIR No.588/2018 was registered. But the investigation undertaken pursuant to FIR No.109/2020 revealed certain past incidents right from the year 2015, as is forthcoming in the charge sheet. Thus it was the argument of Sri Hashmath Pasha that the charge sheet filed in FIR No.109/2020 is bad and against the procedure in as much as the petitioner cannot be prosecuted in relation to past incidents which would extend beyond period of twelve months prior to the date of registration of FIR No.109/2020. In respect of the past incidents, he cannot be tried in the absence of FIR for every distinct offence. Though Sri V.G.Tigadi tried to meet this argument by arguing that the petitioner was a member of conspiracy from the beginning and thereby he is involved in a continuing offence, it is difficult to accept his argument. As the FIR No.109/2020 discloses, it was registered on 04.09.2020 for the offences committed in between the dates 11.04.2020 and 04.09.2020. Ofcourse the charge sheet filed in this connection shows the involvement of the petitioner in similar kind of offences since the year 2015. In the charge sheet, it is clearly mentioned that he had arranged parties at several places in the year 2015, 2018 and 2019

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and sold narcotic substances and drugs. Certainly the past incidents of crime detected for the first time during investigation in connection with FIR No.109/2020, must be tried, but it must be in accordance with procedure established by law. It so happens that many a time, the past incidents of crime will be detected when investigation is undertaken in connection with some other case. Whenever past crimes committed by the same person come to light, nothing prevents the police from registering separate FIR for every distinct offence detected and filing a separate charge sheet, if all those offences cannot be tried jointly in accordance with Section 219 of Cr.P.C. 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

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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. The charge sheet also shows that the last date of involvement of the petitioner was on 08.03.2020 in a party called DIVINE EX-MAHOLLI arranged at Ashoka Hotel. The charge sheet does not disclose his involvement in any offence committed after 08.03.2020 and therefore it is not understandable as to how the petitioner could have been arraigned as accused No.3 in FIR No.109/2020. In this view, not only the FIR but also the charge sheet against the petitioner requires to be quashed. However, the supplementary or the additional charge sheet filed in connection with FIR No.109/2020 cannot be quashed, as has been sought by the petitioner as it is against accused No.26 and 27.

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11. It is to be noted here that what is made out by the counsel for the petitioner is a sheer procedural lapse. This can be set-right. If really the petitioner’s involvement is there in commission of offences punishable under the NDPS Act, he must be tried in accordance with law and punished in case the prosecution is able to prove its case beyond reasonable doubt. The

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lapses in procedural aspects should not come in the way of prosecuting the petitioner. Though this petition is liable to be allowed, it should not be understood as though petitioner cannot be prosecuted without following the procedure established under law. Therefore, permission is to be accorded to the prosecuting agency to set-right all the procedural mistakes and take action against the petitioner in accordance with law. In this view the following:

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ORDER

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Writ petition is allowed.

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The proceedings against the petitioner in Spl.C.C.No.529/2019 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru and the FIR in Crime No.109/2020 and the charge sheet filed against the petitioner as per Annexure-U are quashed. Consequently, the order of taking cognizance against the petitioner on this charge sheet in Spl.C.C.No.212/2021 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru, is also quashed.

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However, this order does not come in the way of prosecuting the petitioner in accordance with law in the light of the observations made above.”

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The petition was allowed and the order taking cognizance against the petitioner therein was set aside. It was also observed that the order would not come in the way of prosecuting the petitioner in accordance with

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law, in the light of the observations made in the course of the order.

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Learned senior counsel would submit that the petitioner is also one of the accused, charged for the very same offences in crime No.588/2018. It is not in dispute that the order passed by the Co-ordinate Bench of this Court was taken in appeal before the Apex Court in SLP No.1622/2022. The Apex Court considering the petition, passed the following order:

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“Issue notice returnable on 11.04.2022 restricted to the charge sheet arising out of FIR in Crime No.109 of 2020.

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The impugned order shall not be treated as a precedent to decide the cases filed by the other accused till further orders.”

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While the order that is passed by the Coordinate Bench as afore-extracted, concern both the crime numbers, the Apex Court chose to issue notice only in crime No.109/2020, which would mean by implication that the order passed by the Co-ordinate Bench on Crime No.588/2018 has been dismissed. Therefore, the petitioner who is a co-accused along with the petitioner in the aforesaid petition, is charged for the very same offences as the accused therein and I deem it appropriate to quash the proceedings against the petitioner for the very same reasons rendered by the Coordinate Bench of this Court and the very same liberty is granted to the prosecution.

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For the aforesaid reasons, the following:

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NC: 2024:KHC:42469 WP No. 1933 of 2024

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ORDER

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i. The writ petition is allowed.

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ii. The proceedings against the petitioner in Spl.C.C.No.529/2019 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru and the FIR in Crime No.588/2018 and the charge sheet/supplementary charge sheet filed against the petitioner, stand quashed.

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iii. However, this order does not come in the way of prosecuting the petitioner in accordance with law in the light of the observations made above."

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For the aforesaid reasons, the following:

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ORDER

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i. The writ petition is allowed.

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ii. The proceedings against the petitioner Spl.C.C.No.529/2019 of Banaswadi Police Station, Bengaluru City pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for N.D.P.S. cases, Bengaluru, stand quashed.

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iii. However, this order does not come in the way of prosecuting the petitioner in accordance with law in the light of the observations made above.

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Sd/(M.NAGAPRASANNA) JUDGE

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BVK List No.: 1 Sl No.: 29 CT: BHK

Mr. Sharif Hassan Mashuri v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Sharif Hassan Mashuri v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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