The High Court addressed two quashing petitions filed by accused persons charged with possessing hash oil under the NDPS Act. The Court held that at the threshold stage, without a charge sheet and full evidence, it is not desirable to quash proceedings, despite alleged procedural lapses or claims of immunity.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
\ IN THE HIGH coURT FoR THE STATE oF TELANGANA AT HYDERABAD
WEDNESDAY ,THE THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY TWO
PRESENT
THE HONOURABLE DR, JUSTICE CHILLAKUR SUMALATHA
cRt INAL PETITION NO: 5248 AND 5251 0F 2022
CRIMINAL PETITION NO: 5248 OF 2021
Between:
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-'
...PETITIONERYACCUSED NO.6
AND
...RESPONDENT/COMPLAINANT
... DEFACTO COMPLAINANTS/RESPONDENT NO.2
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.
CRIMINAL PETITION NO: 5251 O F 2021
Between:
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
AND
...PET|T|ONER/ACCUSED NO.s
... DEFACTO COMPLAINANTS/ RESPONDENT NO.2
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
l.A. N(): 2 OF 2022
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.
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.
The Court made the following: COMMON ORDER
HONBLE DR, JUSTICE CHILLAKUR SUMAI,ATHA
CRIMINAL PETITION Nos.524B and 5251 of 2022
COMMON ORDER:
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.
2
Dr.CSL, J CrU'Nos.5248 & 5251 of 2022
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.
3
Dr.CSL, J Crll'Nos.5248 & 5251 oJ 2O22
informed that they are police personnel and theyare taking them to watch AV on the ill-effects of using narcotic drugs. They also informed that thepetitioners would be set free, but they were shifted to Jubilee Hills Police Station and were conlined. The learnedcounsel for the petitioners submits that after multiplerequests,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, thepetitioners were taken to a chamber where some bottleswere kept on a table and the petitionerswere forced to sign on a declaration whose contents they do notknow. Subsequently, the petitioners were shifted forhealth check up and later, they wereproduced before the Court. and the Court released them on bail.Learnedcounsel further contended that the petitioners haveno acquaintance with accused Nos.l and 2 and thestory of the prosecution is false in its entirety.Learned counsel further contended that the investigatingagency deliberately circumvented theprocedure thatis laid down
4
Dr.CSL, J CrlPNos.S24A & 5251 of 2022
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.
5
Dr.CSL, J CrlPNos.5248 & 5251 of 2022
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.
6
Dr.CSL, J CrlPNos.5248 & 5251 of 2022
the NDPS Act, 1985 in verbatim or strict sensemay vitiate the trial. However, as rightly pointed out bythe learned Assistant Public Prosecutor this is toopre- mature stage to decide all these aspects.
"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
7
I I
Dr.CSL, J CrlPNos.5248 & s251 of 2022
from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction."
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.
8
Dr.CSL, J CrlPNos.5248 & 5251 of 2022
\
//TRUE COPYII s D/-N. cHA NDRA i._[Bffi flis
To,
SECTION OFFICER
sB ")'/
HIGH COURT
DATED:03 tOBt2O22
COMMON ORDER
,f.
14 sEP ?[2
7.
"
.:
CRLP.No. S24A AND S2S2 OF ZO22
DISMISSING THE BOTH CRLPS WTHOUT COSTS
o
3 issues framed by the court
Whether the High Court can quash proceedings against accused alleged to possess hash oil at the threshold stage.
Whether strict compliance of Section 42 of the NDPS Act is required to quash proceedings before the charge sheet is filed.
Whether the petitioners are eligible for immunity from prosecution under Section 64-A of the NDPS Act.
Colour shows how this judgement treated each authority
Criminal petition No. 1231 of 2O2I, dated O9.9.2O21Referred¶59
3 provisions across 2 enactments
Sourav Sen
Arnab Sen
The State of Telangana
Chillakur Sumalatha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
