Dismissed

Sourav Sen v. The State of Telangana

Telangana HC3 Aug 2022CRLP/5248/2022

Case brief

AI extract

What is this about?

High Court dismissed two criminal petitions seeking quashing of proceedings under Section 482 CrPC regarding possession of hash oil. Court held that procedural lapses are too preliminary to decide at this stage and immunity under Section 64-A was inapplicable as nature of possession (personal vs other) remained unclear.

What did the court decide?

Both Criminal Petitions are dismissed without costs as no justifiable grounds exist to quash proceedings at this stage.

Sourav Sen Vs The State of Telangana — Narcotics (NDPS) | Telangana HC (2022)

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\ IN THE HIGH coURT FoR THE STATE oF TELANGANA AT HYDERABAD

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WEDNESDAY ,THE THIRD DAY OF AUGUST

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TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR, JUSTICE CHILLAKUR SUMALATHA

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cRt INAL PETITION NO: 5248 AND 5251 0F 2022

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CRIMINAL PETITION NO: 5248 OF 2021

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Between:

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Sourav Sen, S/o.Subir Kumar Sen, aged. 43 years, Occ. private Emplyee, R/o. Flat ry-o: F 703, Sri_Sairam T-owers, I\ianjira pipelin".,-Hy;;;6;: Telangana-500049 N/o. AC67/4, Ravindrapalli, Kestoiur, Koikata^-'

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...PETITIONERYACCUSED NO.6

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AND

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1 The s_tate of relangana, Rep. by its pubric prosecutor, Hiqh court Buildinos HighCourt,Hyderabad,through'SHo,JubileeHills,Hydeiaba

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...RESPONDENT/COMPLAINANT

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Addl. lnspector of Police, pS Jubliee Hills, Hyderabad.

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... DEFACTO COMPLAINANTS/RESPONDENT NO.2

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Petition under Section 482 of cr.p.c praying that in the circumstances stated in the Memorandum of Grounds of criminil petition, the High court may be pleased to quash the proceedings against petitioner/Accused^"No.6 inol in Crime No. 284 of 2022 on the file of p.S. Jubliee Hifls, Hyderabad.

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CRIMINAL PETITION NO: 5251 O F 2021

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Between:

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Arnab sen, s/o, subir Kumar Sen, aged 40 years, occ: Free Lance Artist, Rio. Flat No. E 703, Sri Sairam Towers, iManjira pipelines, UyOeranaO, Telangana-500049 N/o. AC67/A, Ravindrapalli, Kestotur, Kolkata

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AND

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...PET|T|ONER/ACCUSED NO.s

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The state of rerangana, Rep. by its public prosecutor, High court Buirdings, -^{!igf, Court, Hyderabad, through SHO, Jubilee Hiils, Hydeiabad.} 2. Addl. lnspector of^police, pS Jubliee Hills, Hyderabad

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... DEFACTO COMPLAINANTS/ RESPONDENT NO.2

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings against petitioner/Accused No.6 in Crime No. 284 of 2022 on the file of P.S.Jubliee Hills, Hyderabad

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l.A. N(): 2 OF 2022

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Petition under Section 482 oI Cr.P .C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings against petitioner/Accused No.5 in Crime No. 284 ot 2022 on the file of P.S. Jubliee Hills, Hyderabad.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri NAGESHWAR RAO PUJARI ,Advocate for the Petitioners in both cases and of the Assistant Public Prosecutor on behalf of the Respondents in both cases.

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The Court made the following: COMMON ORDER

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HONBLE DR, JUSTICE CHILLAKUR SUMAI,ATHA

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CRIMINAL PETITION Nos.524B and 5251 of 2022

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COMMON ORDER:

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Seeking the Court to quash the proceedings that are initiated against them in Crime No.2B4 of 2022 of Jubilee Hills Police Station, Hyderabad, the individuals who are arrayed as accused Nos.S and 6 moved the present Criminal Petition.

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Heard the submission of the learned counsel for the petitioners as well as the learned Assistant Public Prosecutor who is representing respondent Nos.1 and 2.

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The matrix of the case as could be perceived through the contents of the complaint is that the Additional Inspector of Police, Jubilee Hills Police Station, Hyderabad ' received credible information on 25.5.2022 that six persons are in possession of hash oi1. Hash oil is an extract of Cannabis i.e., Ganja. Informing about the information received to the superior officer and obtaining permission from him, the Additional Inspector of Police along with his staff proceeded to the spot. At the

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Dr.CSL, J CrU'Nos.5248 & 5251 of 2022

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place near 36 Down Town pub, Road No.3g, Jubilee Hills, Hyderabad they found six persons in suspicious circumstances. They tried to flee away on seeking police, but they were caught hold and on enquiry, they revealed their identity particulars and also possession of hash oil bottles. Their right to get searched before the nearest Magistrate or before the gazette officer was informed and a notice was also served on them. Two panchayatdars were later summoned. Search was conducted in the presence of the gazetted officer and panchayatdars. The said six persons were found to be in possession of small boxes of hash oil. On that, their statements were recorded arrd six hash oil bottles were seized. The seized hash oil bottles were sealed.

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Making his submission, the learned counsel for the petitioners contended that the defacto complainant foisted a false case against the petitioners and indeed, while the petitioners were walking towards ATM, they were obstructed by three unidentilied men and were abducted and one of them, snatched the phones of the petitioners and on repeated enquiry, those people

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Dr.CSL, J Crll'Nos.5248 & 5251 oJ 2O22

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informed that they are police personnel and they^are taking them to watch AV on the ill-effects of using narcotic drugs. They also informed that the^petitioners would be set free, but they were shifted to Jubilee Hills Police Station and were conlined. The learned^{counsel for} the petitioners submits that after multiple^requests,the petitioners were allowed to make a phone call to their father and they informed their father about their detention. The father of the petitioners arrived,^{but he} was not given audience. Subsequently, the^petitioners were taken to a chamber where some bottles^{were kept} on a table and the petitioners^{were forced to sign on a} declaration whose contents they do not^know. Subsequently, the petitioners were shifted for^health check up and later, they were^{produced before the Court.} and the Court released them on bail.^{Learnedcounsel} further contended that the petitioners have^no acquaintance with accused Nos.l and 2 and the^{story of} the prosecution is false in its entirety.^{Learned counsel} further contended that the investigating^agency deliberately circumvented the^procedure that^{is laid down}

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Dr.CSL, J CrlPNos.S24A & 5251 of 2022

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under Sections 4l a:nd, 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as .the NDpS Act, 19g5,, for brevity). The learned counsel also stated that the aleged confession is a coerced one and therefore, it is inadmissible in the eye of law. Learned counsel also stated that even as per the version of the investigating agency, the prace of offence is at a public place and when hundreds of people would be found travelling through that road round the clock, any tr.i,o of them would have been secured as panchayatdars. There is no requirement for securing the a-lleged panchayatdars from a distant and far away place, and that itself goes to show that tJ.e entire story of the prosecution is false. Learned counsel also contended that when the procedure laid down under Sections 4l and 42 of the NDpS Act, l9g5 is not followed, it direcily affects the case of the prosecution ald even on that count, continuation of proceedings against the petitioners is undesirable.

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Vehemently opposing the submission made, the learned Assistant public pro secutor contended that by

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Dr.CSL, J CrlPNos.5248 & 5251 of 2022

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following the prescribed procedure, the petitioners were apprehended by Police and the petitioners were caught red-handed while they were in possession of the contraband i.e., hash oil, and whether the search and seizure is conducted as per law or not, has to be decided after going through the relevant material that would be filed along with the charge sheet and this is too pre_ mature stage to decide those aspects.

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No doubt, as rightly contended by the learned counsel for the petitioners, compliance of Section 42 of the NDPS Act, 1985, is mandatory and it is a relevant factor to be taken into consideration. However, the established principle of law is that without giving an opportunity to the investigating agency to produce all the relevant material before the competent Court, it would not be desirable tb quash the proceedings at the threshold. There is no material on record to show whether the information received is reduced into writing by the defacto complainant or not. Adequate or substantial compliance of Section 42 of tlre NDpS Act, 1985 would be enough. Non-compliance of Section 42 of

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Dr.CSL, J CrlPNos.5248 & 5251 of 2022

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the NDPS Act, 1985 in verbatim or strict sense^may vitiate the trial. However, as rightly pointed out by^the learned Assistant Public Prosecutor this is too^pre- mature stage to decide all these aspects.

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During the course of submission, the learned counsel for the petitioners pointing out that^the consumers of narcotic drugs and^psychotropic substances have got immunity from prosecution in case they volunteer for treatment, relied upon the contents of Section 64-A of the NDPS Act, 1985. The said^provision reads as follows:-

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"Immunity from prosecution to addicts volunteering for treatment.- Any addict, who is charged with an offence punishable under section 27 or witl: offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiclion from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances: Provided that the said immunity

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I I

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Dr.CSL, J CrlPNos.5248 & s251 of 2022

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from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction."

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B. In that regard, the learned counsel for the petitioners also relied upon the decision of this High Court in Criminal petition No. 1231 of 2O2I, dated O9.9.2O21 . However, whether the alleged possession of the narcotic drug, i.e., hash oil by the petitioners is for self-consumption or for any other purpose is not known.

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On one hand the learned counsel for the petitioners contending that the petitioners were illegally taken into custody while they were proceeding to ATM center, on the other hand states that the petitioners have got immunit5r from prosecution under Section 64-A of the NDpS Act, 1985. The said immunity from prosecution is available. only for the addicts.,As of now, there is no material on record to show as to in what capacity the petitioners were in possession of the alleged contraband i.e., hash oil. Therefore, this Court is of the rriew that there are no justifiable grounds whatsoever to quash the proceedings against the petitioners at the crime stage.

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Dr.CSL, J CrlPNos.5248 & 5251 of 2022

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Resultantly, both the Criminal petitions are dismissed.

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As a sequel, pending miscellaneous applications, if any, shall stand closed.

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//TRUE COPYII s D/-N. cHA NDRA i._[Bffi flis

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To,

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SECTION OFFICER

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'1. The XVll Additional Chief Metropolitan Magistrate Nampally, Hyderabad The Station House Offir

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The Station House Offir 3 ,ne cc to SR, oo=:;';:l;: :flffffi:,J,rjffi. 4 f.o CCs to the pUBLt(

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relansana ai i-iyo;ff;i.'r33r:tcuroR, High court for the state or

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Two CD Copies

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One Spare Copy

sB ")'/

HIGH COURT

DATED:03 tOBt2O22

COMMON ORDER

,f.
14 sEP ?[2
7.
"
.:

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CRLP.No. S24A AND S2S2 OF ZO22

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DISMISSING THE BOTH CRLPS WTHOUT COSTS

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Sourav Sen v. The State of Telangana

Case brief

What is this about?

What did the court decide?

Sourav Sen v. The State of Telangana

Case brief

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