Allowed

Sukhdev Singh and Anr. v. State

Rajasthan HC23 Feb 2017CRLMP/1076/2005

Case brief

AI extract

What is this about?

In these criminal miscellaneous petitions, the High Court set aside the trial court's orders taking cognizance under the NDPS Act and terminated criminal proceedings, holding that condoned license breaches did not constitute offenses and the complaint was barred by limitation.

What did the court decide?

Impugned orders dated 22.08.2005 regarding Sessions Cases Nos. 28/2005, 30/2005, and 29/2005 were set aside, and pending criminal proceedings against the petitioners were terminated.

Sukhdev Singh and Anr. Vs State — Narcotics (NDPS) | Rajasthan HC (2017)

¶1

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

1. S.B.Criminal Misc(Pet.) No. 1140 / 2005

¶4

Sukhdev Singh S/o Mahendra Singh, by caste Jat Sikh, resident of Dingarh Tehsil Sangria, District Hanumangarh

¶5

Surendra Singh S/o Kishore Singh by caste Rajput, resident of Mukandpura Tehsil Dhood District Sikar ----Petitioners Versus State of Rajasthan

¶6

----Petitioners

¶7

----Respondent

¶8

2. S.B.CRIMINAL MISC(PET.) No. 1076 / 2005

¶9

Sukhdev Singh son of Mahendra Singh, by caste Jat Sikh, resident of Sri Ganganagar

¶10

Baljeet Singh son of Sajjan Singh, by caste Jat Sikh, resident of Nukeran, Police Station Sangaria, District Hanumangarh.

----Petitioners

Versus

State of Rajasthan

----Respondent

3. S.B.CRIMINAL MISC(PET.) No. 1141 / 2005

¶16

Sukhdev Singh S/o Mahendra Singh, by caste Jat Sikh, resident of Dingarh Tehsil Sangria, District Hanumangarh

¶17

Jagtar Singh S/o Cuhad Singh, by caste Jat Sikh, resident of Anoopgarh, District Sri Ganganagar

Versus

State of Rajasthan

----Respondent

4. S.B.CRIMINAL MISC(PET.) No. 1199 / 2005

¶22

¶23

Samraj Singh S/o Rajendra Singh, resident of D-1 New Durga Marg, Benipark, Jaipur

----Petitioners

Versus

State of Rajasthan

----Respondent

_____________________________________________________ For Petitioner(s) : Mr B.S.Rathore, Mr Manoj Bohra & Mr Mahesh Joshi

¶29

For Respondent(s) : Mr V.S.Rajpurohit- PP

¶30

HON'BLE MR. JUSTICE VIJAY BISHNOI Order

¶31

23/02/2017

¶32

Since common questions are involved in these four petitions, they are being decided by this common order.

¶33

These criminal misc. petitions under section 482 CrPC have been preferred by the petitioners being aggrieved with the orders dated 22.08.2005 passed by Special Judge, NDPS Act Cases, Sri Ganganagar (for short ‘the trial court’ hereinafter) in Sessions Case No.28/2005, 30/2005 and 29/2005, whereby it took cognizance against the petitioners for the offences punishable under sections 8/15 read with section 26 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brevity ‘the NDPS Act’ hereinafter).

¶34

Brief facts of the case are that petitioners Sukhdev Singh and Samraj Singh were the wholesale vendors of lanced poppy heads for Anupgarh area in the year 1998-99. Petitioner

¶35

¶36

Sukhdev Singh was also the wholesale vendor of lanced poppy heads for Padampur area and retail vendor of lanced poppy heads for Hindumalkot area for the year 1998-99. Petitioners – Surendra Singh, Baljeet Singh and Jagtar Singh were the employees of Sukhdev Singh and were working at wholesale and retail vends. Licences for the above mentioned wholesale and retail vends of poppy heads have been issued by the competent authority under the Rajasthan Narcotic Drugs and Psychotropic Substances Rules 1985 (in brevity ‘NDPS Rules’ hereinafter).

¶37

The then Excise Inspector of Padampur area inspected the wholesale vend of Padampur on 23.08.1998 and found that the stock register of the wholesale vend is not available with the employee Jagtar Singh. He prepared an inspection report mentioning that the stock register is not available on the wholesale vend and as such the licence holder for the wholesale outlet of Padampur, petitioner - Sukhdev Singh has breached the conditions of the licence. Thereafter he filed this complaint before the trial court on 28.08.1998 and the same has been registered in the trial court.

¶38

Similarly, the then Excise Inspector, City Ganganagar inspected the retail vend of lanced poppy heads of petitioner – Sukhdev Singh at Hindumalkot on 25.08.1998 and found that 3600 kgs. of lanced poppy heads is lying in the said vend in excess of permissible limit for which licence was issued to him under the provisions of Rules of 1985 and also found that the stock register is not available at retail outlet. Immediately, he

¶39

¶40

prepared a report of this effect while alleging that the offence punishable under section 26(d) of the NDPS Act is made out against the petitioner – Sukhdev Singh and his employee Baljeet Singh and submitted a complaint of this effect dated 26.8.1998 before the trial court on 27.08.1998. The said complaint has also been registered by the trial court.

¶41

Excise Inspector of Anupgarh area inspected the wholesale vend of petitioner - Sukhdev Singh at Anupgarh on 31.03.1999 and found excess 512.5 kgs. of lanced poppy heads (Powder) in violation of terms of permit and the stock register was also not available with the employee of petitioner, Surendra Singh. He immediately prepared a report regarding breach of terms of licence and submitted a complaint dated 31.03.1999 before the trial court on 01.04.1999. The said complaint has also been registered before the trial court.

¶42

The trial court has thereafter sought the progress of investigation conducted by the Excise Department in relation to the complaints filed and it appears from the record of the Excise Department that allegations against the petitioners were regarding the breach of conditions of licence, however, the competent authority has already condoned such breach and penalty levied upon the wholesale and retail vendor has already been deposited. The trial court being not satisfied with the outcome of the investigation conducted by the Excise Department has proceeded to take cognizance against the petitioners vide orders dated 22.08.2005 while observing that under the provisions

¶43

¶44

of NDPS Act, a person can sell, store and possess the lanced poppy heads under a licence issued by the competent authority and if there is any breach of the conditions of the said licence, then it is illegal and because under the NDPS Act, there is no provision for condoning such breach, the action of the Excise Department of condoning the said breach is void in the eyes of

¶45

law. Learned trial court has also observed that if the officers of the Excise Department have condoned the breach in illegal manner, they are liable to be prosecuted but since those officers can be important witnesses in the case against the petitioners, it is not advisible to make them co-accused in this case. The trial court has further observed that as excess lanced poppy heads was found in the retail and wholesale vends of the petitioners – Sukhdev Singh and Samraj Singh, where their employees were also present, therefore, it is a fit case, wherein the cognizance can be taken against the petitioners for the offences punishable under section 8/15 and 26 of the NDPS Act and as such cognizance has been taken against them for the said offences and they were summoned through warrant of arrest.

¶46

Being aggrieved with the orders dated 22.08.2005 passed by the trial court, the petitioners have filed these criminal misc. petitions with a prayer for setting aside the impugned orders and for terminating the criminal proceedings pending against them.

¶47

Learned counsels for the petitioners have argued that

¶48

¶49

the trial court has grossly erred in taking cognizance against the petitioners without there being any report by the investigating agency under section 173 of the Code of Criminal Procedure. It is also argued that in the absence of report under section 173 of the Code, the trial court cannot take cognizance and on this count alone, the orders dated 22.08.2005 are liable to be set aside.

¶50

It is further argued that the trial court has also erred in taking cognizance against the petitioners for the offence punishable under section 8/15 and 26 of the NDPS Act because there is no violation of conditions of any licence issued under the provisions of the NDPS Act. It is contended that the licences for the wholesale and retail vends of lanced poppy heads in favour of the petitioners - Sukhdev Singh and Samraj Singh were issued under the provisions of Rajasthan Excise Act, 1950 (in brevity ‘the Act of 1950’ hereinafter) and Rules made thereunder. It is also contended that when there is no violation of any permit issued under the NDPS Act and the Rules made thereunder, the trial court has erred in taking cognizance against the petitioners for the offences under the NDPS Act. It is further contended that as per the provisions of section 70 of the Act of 1950, the officers of the Excise Department can condone the breach of conditions of licence and in the present cases, the officers of the Excise Department have already condoned the breach of the conditions of licence. In such circumstances, the trial court has erred in taking cognizance against the petitioners for the offence punishable under the NDPS Act while illegally holding that compounding or condoning of the

¶51

¶52

offences is not permissible under the law.

¶53

It is further argued by the counsels for the petitioners that in the absence of chemical examination report, it is impossible to hold that the petitioners were in possession of any contraband article contravening the provisions of the NDPS Act, however, the trial court without taking into consideration this aspect of the matter, has illegally passed the impugned orders of taking cognizance against the petitioners for the offences punishable under the NDPS Act.

¶54

On the strength of the above arguments, learned counsels for the petitioners have prayed that the impugned orders may be set aside and the criminal proceedings pending against the petitioners may be terminated.

¶55

Per contra, learned Public Prosecutor has supported the impugned orders passed by the trial court and argued that when there is clear breach of provisions of the NDPS Act, the trial court has not committed any illegality in passing the impugned orders.

¶56

Heard learned counsel for the rival parties and carefully scrutinized the record.

¶57

The first argument of the learned counsels for the petitioners that the trial court has erred in taking cognizance against the petitioners vide impugned orders for the offences punishable under the NDPS Act in the absence of any report by the investigating agency under section 173 CrPC, is without any merit. As per clause (a) of sub-section (1) of section 36A of the NDPS Act, all the offences under the NDPS Act punishable with

¶58

¶59

imprisonment for a term of more than 3 years are to be tried by a Special Court constituted for the area. The offence under section 8/15 of the NDPS Act for which the cognizance has been taken against the petitioners is punishable with the imprisonment for a term of more than 3 years.

¶60

Clause (d) of sub-section (1) of section 36A of the NDPS Act reads as under:

¶61

“(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.”

¶62

As per clause (d) of sub-section (1) of section 36A of the NDPS Act, a Special Court can take cognizance of the offence punishable under the NDPS Act even on complaint made by an officer of the State Government authorized in this behalf.

¶63

In the present cases, the complaints before the trial court against the petitioners were filed by the Custom Inspectors and it is not the case of the petitioners that the said Custom Officers were not authorized by the State Government to file complaints .

¶64

In view of the above, I am of the considered opinion that the Special Court is fully competent to take cognizance against an accused-person for the offences punishable under the NDPS Act even on a complaint filed by officers of the State Government authorized for that.

¶65

¶66

The another argument of the learned counsels for the petitioners that since the licences for wholesale and retail vends of lanced poppy heads were issued in the name of petitioners – Sukhdev Singh and Samraj Singh under the provisions of the Act of 1950 and Rules made thereunder, the trial court has wrongly ordered for taking cognizance against the petitioners for the offences punishable under the NDPS Act under an impression that there is breach/violation of conditions of the licence issued under the NDPS Act, is also considered but for rejection only.

¶67

From perusal of the provisions of the Rajasthan Excise Act, 1950 and the Rajasthan Excise Rules, 1956 and the provisions of other Rules made thereunder, it is clear that licence for wholesale and retail vends for the lanced poppy heads are not issued under the above statutes. The licence for wholesale vend and the retail vend for lanced poppy heads are issued under the provisions of Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985 (in brevity ‘NDPS Rules’ hereinafter). The said Rules are framed by the State Government in exercise of powers conferred by sections 78 and 10 of the NDPS Act. The said Rules came into force w.e.f. 14.11.1985. As per Rule 32 of the NDPS Rules, no person can sell the lanced poppy heads except a licence granted under Rule 33 of NDPS Rules. As per Rule 33 of the NDPS Rules, Additional Commissioner, Excise is empowered to issue licence for storage of lanced poppy heads. As per Rule 34 of the NDPS Rules, the licences for the wholesale vend and retail vend of lanced poppy heads are to be issued in Form N.D.P.S.L-7

¶68

¶69

and N.D.P.S.L.-8 respectively.

¶70

In view of the above, argument of the learned counsels for the petitioners that as the licences for wholesale vend and retail vent to the petitioners – Sukhdev Singh and Samraj Singh were not issued under the NDPS Act or Rules made thereunder, the trial court has erred in taking cognizance against them for breach/violation of license issued under the NDPS Act and Rules made thereunder, is without any merit.

¶71

Now the question comes whether the trial court is justified in taking cognizance against the petitioners for the offences punishable under the NDPS Act on the basis of material available on record. It is not in dispute that the complaints filed by the Excise Inspectors were in relation to the breach of conditions of licence issued to the petitioners – Sukhdev Singh and Samraj Singh for the wholesale vend and retail vend. As observed earlier, the licences for wholesale and retail vends of lanced poppy heads are issued under Rule 34 (i)(a) and 34(i)(b) of NDPS Rules. Condition No.6 of Form N.D.P.S. L-7 reads as under:

¶72

“On breach of any of the above conditions or any of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985 or of any orders or instructions issued from time to time, this licence shall be liable to be revoked by the Additional Commissioner in addition to other punishment which may be inflicted under the provisions of the said Act:

¶73

Provided that whereupon an application made

¶74

¶75

in this behalf the Excise

¶76

Commissioner/Additional Excise Commissioner is satisfied that the breach is of minor nature, he may condone such breach upon payment by the licensee of a sum of money not less than Rs.five thousand subject to a maximum of upto annual fee for licence as applicable for the said wholesale vend alongwith double the duty/levy as applicable on the goods so found irregularly stored Two thousand.”

¶77

However, condition No.11 of N.D.P.S.L-8 reads as

¶78

under:

¶79

¶80

Provided that whereupon an application made in this behalf, the District Excise Officer is satisfied that the breach is of minor nature, he may condone such breach upon payment by the licensee of a sum of money not exceeding Rs.two thousand.”

¶81

As per facts, which are not in dispute, the breach of conditions of the wholesale and retail vends as complained by the Excise Inspectors in their complaints has already been condoned by the Officers of the Excise Department and the licensees have already made the payment of fine/penalty imposed upon them.

¶82

In such circumstances, when there was a condition in

¶83

¶84

the licence for condoning the breach of the conditions of licence and as per the said conditions, the breach has already been condoned, I am of the opinion that the trial court is wrong in observing that since there is no provision for condoning the breach/violation of conditions of licence, case for taking cognizance against the petitioners for the offences punishable under the NDPS Act is made out.

¶85

As observed earlier, the complaints against the petitioners are regarding the breach of conditions of licence only, hence, it cannot be said that the petitioners are prima facie guilty of offence punishable under section 8 of the NDPS Act. Though they were in possession of lanced poppy heads in excess of permissible limits for which licences were issued to them under the provisions of Rules of 1985 but they had explained to the officers that in what circumstances excess lanced poppy heads were found in their warehouse or shops and after satisfying themselves, the Excise Officers have condoned the breach of conditions of licence. In such circumstances, in my opinion, no case for taking cognizance against the petitioners for the offence punishable under section 8/15 of the NDPS Act is made out.

¶86

So far as section 26 of the NDPS Act is concerned, it says that if the holder of any licence granted under the NDPS Act or Rules made thereunder omits to maintain accounts or to submit any return in accordance with the provisions of the NDPS Act or Rules made thereunder, fails to produce without any reasonable cause such licence to any officer authorized by the Central or

¶87

¶88

State Governments, keeps any account or makes any statement which is false or which he knows or has reasons to believe to be incorrect, wilfully and knowingly does any act in breach of any of the conditions of licence, shall be punishable with imprisonment for a term which may extend to three years or with fine or with

¶89

both.

¶90

As per the facts of the present cases, the petitioners can be held prima facie responsible for wilfully or knowingly violating/breaching the conditions of licences issued to them, however as stated earlier, the said breach of licences has already been condoned by the Officers of the Excise Department as per the conditions of licence. Hence, no offence under section 26 of the NDPS Act can also be said to be made out against the petitioners.

¶91

There is another reason, on the basis of which cognizance cannot be taken against the petitioners for the offence punishable under section 26 of the NDPS Act as the complaint against the petitioners for violation of the conditions of licence were filed on 27.08.1998, 28.08.1998 and 31.03.1999 alleging commission of offence punishable under section 26 of the NDPS Act . The punishment under section 26 of the NDPS Act is imprisonment for a term which may extend to three years or with fine or both. However, as per the provisions of sub-section (2) of section 468 CrPC, the period of limitation for taking cognizance for offence punishable for a term not to exceed three years is three years and admittedly, in the present cases, the cognizance against

¶92

¶93

the petitioners for the offence under section 26 of the NDPS Act has been taken after the period of three years of alleged commission of crime. For this reason also, the impugned orders of taking cognizance against the petitioners for the offence punishable under section 26 of the NDPS Act is not sustainable in

¶94

the eye of law.

¶95

In view of the above discussions, these criminal misc. petitions succeed and are allowed. The impugned orders dated 22.08.2005 passed by Special Judge, NDPS Act Cases, Sri Ganganagar in Sessions Case Nos.28/2005, 30/2005 and 29/2005 are set aside. The criminal proceedings pending against the petitioners are terminated.

¶96

Record of the trial court be sent forthwith.

¶97

(VIJAY BISHNOI)J.

¶98

m.asif/PS

Sukhdev Singh and Anr. v. State

Case brief

What is this about?

What did the court decide?

Sukhdev Singh and Anr. v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Karan Singh Rathore Vs State

Daulat Ram Vs State and Anr.

Anil Mehta Vs State and Anr.

Devi Lal Vs State and Anr.

Rakesh Kumar Vs State and Anr.

Mohd. Firoj Vs Saira Bano and Ors.