Allowed¶45

Kelsang Sherba v. State of Karnataka

Karnataka HC17 Mar 2025CRL.P/6137/2024

Case brief

AI extract

What is this about?

Quashing of criminal proceedings under Section 482 CrPC; Section 353 IPC assault or criminal force to deter public servant - essential elements absent where only abusive language alleged; Section 27(b) NDPS Act 1985 consumption of marijuana - hospital report lacking evidentiary value without forensic laboratory chemical examination; doctor in government hospital not competent authority to issue certificate; coordinate Bench Crl.P. No.1453/2023 relied on; C.C.No.17565/2023 XLVI Addl. CMM Bengaluru; FIR Cr.No.236/2022 Kengeri P.S.; abuse of process of law; proceedings quashed qua accused No.2.

What did the court decide?

Criminal petition allowed; impugned proceedings in C.C.No.17565/2023 pending on the file of XLVI Addl. Chief Metropolitan Magistrate, Bengaluru, insofar as they relate to the petitioner/accused No.2, quashed. ¶45

Kelsang Sherba Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner/accused No.2 can be prosecuted under Sections 332, 353, 504 read with 34 IPC when, apart from abusive language, there is no allegation of her using criminal force or physically assaulting or restraining the complainant and his staff from discharging their official duties. +1 more

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Court's answer

Apart from the allegation of abusive language, the charge-sheet material contains no allegation that the petitioner/accused No.2 used criminal force or physically assaulted or restrained the complainant and his staff from discharging their official duties; therefore the petitioner cannot be prosecuted for the offence under Section 353 of the IPC.

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Ratio / Principle

Following the coordinate Bench decision in Crl.P. No.1453/2023, in the absence of a chemical examination conducted in a forensic laboratory no certificate can conclusively establish that the accused's urine tested positive for marijuana consumption; consequently, where the investigation and material on record clearly establish that the evidence is inadequate to support a conviction at trial for an offence under Section 27(b) of the NDPS Act, the trial stands vitiated.

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Key takeaways

The essential elements required to constitute the offences alleged against the petitioner under the IPC are absent.ratio¶41
A careful examination of the material on record leads to the conclusion that the probability of a conviction under the NDPS Act is remote and bleak.ratio¶41
Any further continuation of the criminal proceedings against the petitioner/accused No.2 would amount to an abuse of the process of law.ratio

Detailed headnote1 paragraphs

Criminal petition under Section 482 Cr.PC by accused No.2 seeking quashing of proceedings in C.C.No.17565/2023 (offences punishable under Sections 332, 353, 504 r/w 34 IPC and Section 27(b) NDPS Act, 1985), arising from FIR in Cr.No.236/2022 dated 03.07.2022 of Kengeri Police Station, registered on allegations that during a pub raid the petitioner, present as a customer, abused and assaulted the complainant and his staff, and that a Santosh Hospital report showed she tested positive for marijuana. Held: (i) apart from abusive language, the charge-sheet material discloses no allegation of use of criminal force or physical assault or restraint of the complainant and his staff, so the petitioner cannot be prosecuted under Section 353 IPC; (ii) the charge under Section 27(b) NDPS rests solely on the hospital report; relying on the coordinate Bench in Crl.P. No.1453/2023, in the absence of a chemical examination in a forensic laboratory no certificate can conclusively establish a positive test for marijuana, and where the material shows the evidence inadequate to support conviction, the trial stands vitiated; (iii) essential elements of the IPC offences are absent and the probability of conviction under the NDPS Act is remote and bleak; further continuance would abuse the process of law. Proceedings in C.C.No.17565/2023 qua petitioner/accused No.2 quashed.

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NC: 2025:KHC:11269 CRL.P No. 6137 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 6137 OF 2024

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BETWEEN:

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KELSANG SHERBA, (AS PER AADHAR CARD SYLVIA LEPCHA) D/O DOMINIK LEPCHA, AGED ABOUT 25 YEARS, PRESENTLY RESIDING AT NO. 31/A, 1ST FLOOR 1ST A MAIN, 7TH BLOCK KORAMANGALA, BENGALURU - 560 034, PERMANANT R/O L.B. ROAD, NEAR S.A.S, S.A.S COMPOUND, KALIMPONG-I, DARJEELING, WEST BENGAL - 734 301.

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…PETITIONER

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(BY SRI. GAURAV C. PATIL, ADVOCATE)

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Digitally signed by R HEMALATHA Location: High Court of Karnataka

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AND:

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STATE OF KARNATAKA BY KENGERI P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR, KARNATAKA HIGH COURT BUILDING, KARNATAKA - 560 001.

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CENTRAL CRIME BRANCH, THROUGH POLICE INSPECTOR, WOMEN PROTECTION WING, CCB, BENGALURU CITY, BENGALURU,

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NC: 2025:KHC:11269 CRL.P No. 6137 of 2024

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REPRESENTED BY ITS SPP, HIGH COURT, BENGALURU - 01.

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…RESPONDENTS

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(BY SRI. ANOP KUMAR M.V, HCGP)

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THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO QUASH THE COMPLAINT AND FIR IN CR.NO.236/2022 DATED 03.07.2022 REGISTERED BY THE RESPONDENT KENGERI POLICE STATION, FOR OFFENCE P/U/S 332, 353, 504 R/W 34 OF IPC (ANNEXURE-A AND B), CHARGE SHEET (ANNEXURE-C) AND ORDER TAKING COGNIZANCE DATED 15.07.2023 IN C.C.NO.17565/2023 FOR OFFENCE P/U/S 332, 353, 504 R/W 34 OF IPC AND SEC. 27(b) OF NDPS ACT, 1985 AND ALL FURTHER PROCEEDINGS ARISING THEREFROM INITIATED AGAINST THE PETITIONER WHO IS ARRAIGNED AS ACCUSED NO.2 PENDING ON THE FILE XLVI ADDL. CMM, BENGALURU (ANNEXURE-D).

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner-accused No. 2, who is sought to be prosecuted for offences punishable under Sections 332, 353, and 504 read with Section 34 of the IPC, as well as under Section 27(b) of the NDPS Act, 1985 is before this Court seeking relief.

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The prosecution alleges that on 03.07.2022, upon receiving credible information regarding illegal activities in a

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NC: 2025:KHC:11269 CRL.P No. 6137 of 2024

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pub, a raid was conducted. During the raid, it is alleged that accused Nos. 1 and 2, who were present as customers consuming liquor, abused the complainant and his staff with abusive language, threatened them with dire consequences, and also assaulted them. Additionally, the petitioner/accused No. 2 was subjected to a medical examination at Santosh Hospital, which submitted a report stating that * she had tested positive for marijuana. On the basis of this report, the petitioner/accused No. 2 was charged under Section 27(b) of the NDPS Act.

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The learned counsel for the petitioner submitted that, except for the allegation that the petitioner/accused No. 2 abused the complainant and his staff with abusive language, there is no evidence to suggest that * she used criminal force or physically assaulted or restrained the complainant and his staff from discharging their official duties. Furthermore, it was argued that Santosh Hospital is not a competent authority to issue a report regarding the consumption of marijuana by the petitioner/accused No.2; consequently, the report lacks evidentiary value. Under these circumstances, the continuation of the criminal proceedings against the petitioner would amount to an abuse of the process of law.

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In response, the learned HCGP for the State argued that the charge-sheet material, along with the report

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corrected vide chamber order dated 23.04.2025

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NC: 2025:KHC:11269 CRL.P No. 6137 of 2024

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submitted by Santosh Hospital, clearly establishes that the petitioner/accused No. 2 committed the alleged offences. He further contended that the veracity of the allegations should be considered at trial and not at this stage, and therefore sought the dismissal of the petition.

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The arguments of the learned counsel for the parties have been duly considered.

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A perusal of the charge-sheet material, including the statements of the complainant and his staff, reveals that apart from the allegation of abusive language, there is no allegation against the petitioner/accused No.2 of using criminal force or physically assaulting or restraining the complainant and his staff from discharging their official duties. Therefore, the petitioner cannot be prosecuted for the offence under Section 353 of the IPC, which deals with assault or the use of criminal force to deter a public servant from discharging his duty.

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With respect to the charge under Section 27(b) of the NDPS Act, the allegation is based solely on a hospital report indicating that the petitioner/accused No.2 tested positive for marijuana consumption. In this context, the coordinate Bench of this Court in Crl.P. No.1453/2023 has held that a doctor in a government hospital is not a competent authority to issue any certificate proving such allegations. In

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NC: 2025:KHC:11269 CRL.P No. 6137 of 2024

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the absence of a chemical examination conducted in a forensic laboratory, no certificate can conclusively establish that the accused’s urine tested positive for marijuana consumption. Consequently, where the investigation and material on record clearly establish that the evidence is inadequate to support a conviction at trial for an offence under Section 27(b) of the NDPS Act which prescribes a punishment of rigorous imprisonment for up to one year and a fine the trial stands vitiated .

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In light of the foregoing discussion, I am of the considered view that the essential elements required to constitute the offences alleged against the petitioner under the IPC are absent. Moreover, a careful examination of the material on record leads to the conclusion that the probability of a conviction under the NDPS Act is remote and bleak.

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