Allowed

S. Surya Prakash v. The State of Telangana and 4 others

Telangana HC8 Mar 2022WP/2974/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the arbitrary arrest, custody, and search of shop owners for allegedly selling whitener to minors. The Court quashed the criminal proceedings due to procedural violations by police and the lack of a ban on whitener sales.

What did the court decide?

Proceedings in Cr. No. 57 of 2021 against the petitioners were quashed.

S. Surya Prakash Vs The State of Telangana… — Civil Procedure and Limitation | Telangana HC (2022)

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HIGH COURT FOR^{THE STATEOF TELANGANA} AT HYDERABAD

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(Special Original J urisdiction)

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TUESDAY, THE EIGHTH^{DAY OF NIARCH} TWO THOUSAND AND TWENTY^TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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WRIT PETITIO N NO: 2974 OF²⁰²¹

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Betwee n:

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1 S. Surva Prakash, S/o^{S, Venkaiah, Aged about 60 years, Occ. Business,R/o} Flat N<i. 201, Sri Sai^{Residency, Khairtabad, Hyderabad, Telangana.}

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2 G. Srisailam. S/o G. Ramchandar,^{Aged about 52 years,Occ Shop} Employee, R/o 9-2-115, Langer^{House, Hyderabad}

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...PETITIONERS

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AND

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The State of Telangana,^{Rep., by its PrincipalSecretary, Home Department,} Secretariat, Hyderabad.

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The Commissioner^{of Police, Hyderabad.}

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Taskforce West Zone,^{Secunderabad.}

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The Statiqn House Officer,^{PanjaguttaP S., Hyderabad'}

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B. Paramesh,^{Sub-lnspector of Police, P.S. Panjagutta, PanjaguttaX road,} Hyderabad, Telangana.

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...RESPONDENTS

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Petition under Article 226^{of the constitutionof lndia praying that in the} circumstances^{stated in the affidavit filed therewith,the High court maybe} pleased to grant an order, direction^{or writ' more so in the nature of Writ of} mandamus ieclaring the^{action of the 3rd and 4th Respondentsin takinginto} custody and detaining^{the Petitioners hereinwithout warrant, conductingsearch in} the premises of^{Prakash Book stationery without due authorizationfrom any court} and registering a^{FIR in cr. No. 57 ol 2021on the file of the 4th Respondenton} the balis of i fabricated^{complaintas illegal, arbitrary, highhanded,apart from} being violative^{of Articles14 and 21 of the constitution of lndia and consequently} to qriash the^{proceedings againstthepetitione rs/Accused in cr. No. 57 of 2021} on the file of the^{4th ResPondent.}

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I I

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|.A.NO: 1 OF 2021

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Petition Under Section 151 CPC^praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court may be^pleased to stay all further^proceedings against the Petitio ne rs/Accu sed in Cr. No. 57 of 2021 on the file of the 4th Respondent.

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Counsel for the Petitioners : SRI.T.BALA MOHAN REDDY

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Counsel for the Respondents : SRI.S.RAM MOHAN, AGP FOR HOME

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The Court made the following ORDER

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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WRIT PETITION No.2974 OF 2O21

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ORDER:

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This Writ Petition is filed seeking to declare the action of respondent Nos.3 and 4 in taking into custody and detaining the petitioners \,ithout tvarrant, conducting search in the premises of "Prakash Book Stationery" (herein after called ' the shop') or.vned by the 1"t petitioner, wlthout due authorization from any Court and register-ing a case 1n Cr"No.57 of 2A2I against the petitioners herein/accused for the offences under Sections 276 and 336 of IPC. on fabricated complaint AS iilegal and consequently to quash the proceedings in the above said crime against the petitioners. The petitioners herein are accused in the above said crime

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Heard Sri T.Bala Mohan Reddy, learned counsel for the petitioners and Sri S.Ram Mohan, leaned Asst. Govt. Pleader for Home and perused the record.

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The allegations against tire petitioners herein are that thev are selling 'l(ores Eraz-ex u,hitener liquid' 15m1 bottles to the children belolr' 18 years at tl-reir shop and the same ls illega1 and endanger to the human 1ife. in the ',vrit affidavit,

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there is specific allegation that on 29.Ol.2O2l, some personnel from Task Force (West zone) visited the premises of the petitioners and enquired about whitener. At that time, the 1"t petitioner was not there in the shop and therefore, the personnel intimated the employees to call the 1"r petitioner to the shop. After that, r.r,hen the 1"t petitioner came to the shop, they enquired about the whitener inciucling storage and sale etc. They have also behaved rudelv and abused the 2.d petitioner. They have seized the shop on 29.O1.2021 itself. They have a-lso took the 1"t petitioner into custodv al 4.45 P.M. to 5.00P.M. on his arrival. Both the petitioners ."i,ere taken to the DCP Task Force office at Secunderabad. When their Advocate reached Task Force Office, he was prevented from entering into the premises and not permitted him to meet either the officials or the petitioners.

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in the writ affidavit, there are specific allegations against Rajesh, Sub Inspector of police, and Gattumallu, circle Inspector of police, the Task Force officials and in charge of the case against the petitioners herein. It is further alleged that the petitioners were permitted to leave the premises ol DCP Task Force Office, at g.30 p.M. directing to

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report the next day. i.e. on 3O.O 1 .202 i at 10.30 A.M. The Police have again illegally detained the^petitioners herein. There are specific allegations in paragraph Nos.4 and 5 of^the writ affidavit. The petitioners herein have also^filed photographs in proof of the same. They have also filed a-ffidavit of Sri P.Srinivas Advocate, in^proof of^{the same.}

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in view of the said serious allegations and^a-lso considering the nature of allegations made against^the petitioners herein in the complaint dated 3i.0i.2021 , and also considering the fact that there were no^proceedings issued by the oflicials prohibiting either manufacture^{or sale} of rvhitener, this Court vicle order dated^{I LO2 2O2l directed} the 2"d respondent to cause enquiry into the^specific allegations made by the petitioners in^{the writ alfidavitarrd} submit report along with the counter. The^{2"a respondent} was further directed to file counter^{specificallyadverting to} various contentions ald grounds raised^{by the petitioners.}

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In compliance of the said order,^{the report dated} Ol.06.2O2l of the Joint Commissioner,^{the Police HFAC, DCP} (West Zonel, Hyderabad was fi1ed. ThereaJter,^the2"d respondent herein-the Commissioner of^{Police, filed counter,}

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alfidavit and also additional counter affidavit, wherein it is mentioned that it ha" t,"".r complained to the Director Generai of Police, Hyderabad stating that there is rampant misuse of whitener in many parts of West Zone particularly in Asifnagar. It is also available in South Zone and. East Zone. Therefore, the respondent No.2, vide memo datecl 2B.O 1 .202 I , directed respective officers to launch special drive in the next 15 days and ensure that maximum seizure of whitener is done in their area. The Special Branch SOC and Task Force will also launch special drive after identifying the bulk dealers and progress made in that regard.should be mentioned in the teleconference.

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In compliance of the said directions, panjagutta police have launched special drive for identifying the bulk dealers of whitener and while patrolling in the limits of panjagutta police Station, on credible information, apprehended the petitioners on 31.01 .2021 who are selling 'Kores Eraz-ex whitener 15 ML iiquid'to the children below 18 years at their shop Nos.3 and 4, MCH Market, Ameerpet, Hyderabad which endangers human life. Accordingly 'Korex Eraz-ex whitener liquid, l5 ML bottles were seized from their possession in the presence ol

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mediators and also drafted search proceedings under Section 165 of Cr.P.C. in the presence of panchas, as there was no time to obtain search warrant from the Court due to the reason that if delay occurs it may cause disappearance of the petitioners as well as material evidence. A case in Cr.No.57 of 202 1 dated 3l.Ol.2O2l was registered against the petitioners on the report of the Police for the offences under Section 276 and 336 of IPC. Investigation was taken by the 4th re spondent.

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In the report, it is mentioned that the Enquiry Officer/ Joint Commissioner of Police, HFAC, DCP (West Zone) Hyderabad had gone through the CD file in the FIR, w1-rich reyeals that the Investigating Officer has conducted investigation in impartial and sincere manner and there is no foul play. Similar contentions rvere made in the counter affidavit and additional counter affidavit filed by the 2na re spondent.

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Perusal of the said report, counter affidatrit and additional counter affidavit of the respondent No.2 would revea-l that the Enquiry Officer has not conducted an Enquiry in compliance of the order dated ll.O2.2o2l passed by this

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si lEr

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Court. There is no mention about the recording of statements of any witnesses collecting CCTV footages etc. the Enquiry Officer has conducted enquiry and submitted report as an eye wash formality. There is no consideration of allegations made by the petitioners in paragraph Nos.4 and 5 of the writ a-ffidavit and the order dated 11.O2.2021 passed by this court. Therefore, the said enquiry report is only as an eye wash formality.

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Coming to the allegations leveled against the petition6rs herein in the complaint dated 31.01.202 1, the petitioners are selling whitener liquid 50 ML bottles to the chiidren below 1 B years at their shop r.r,hich endanger their human life.

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1 1 . In the report dated O 1 .06 .2021 , the counter aflidavit and additional counter affidavit, it is mentioned that the respondents have searched the premises of the petitioners i.e. shop on 31.01.2021 , seized Kores Eraz-ex l5 ML botties from the possession of the petitioners. Thus, respondents have not followed the procedure for conducting search and also seizing the said whitener bottles.

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..--.**.

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It is also relevant to note that in the report, counter affidavit and additional counter affidavit, there is no mention with regard to issuance of any prohibitory orders or instructions prohibiting either manufacture or sale of '"vhitener.^{Therefore, it is not a prohibiteditem. The only} allegation is that the petitioners are seliing the said whitener to the children below 18 years. There is no material to show that the petitioners are selling the said whitener to the children below 18 years. The respondents-Police^have searched the shop of the petitioners and seized the^said material illegalIy without foliowing due^procedure laid^down under law and trying to cover up the same.

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lS. it is relevant to note that on the basis of^a newspaper publication in Andhra Jyothi Telugu Daily,^dated 30.12.2006 showing that the children^{of old} city^{of Hyderabad} are getting addicted to whitener an ink-eraser,^{which is freely} available in stationery shops and^prone to^{severe health} problems arrd the poor parents of these children^{are unable to} meet the expenditure for rehabilitation of their^{wards, this} Court has taken the same^{vide W.P.No.2027of 2OO7 on fi1e.} The Division Bench of this Court issued^noticestothe

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Principal Secretary, Women Development and Child Welfare ald Disable Welfare Department, Hyderabad including Kores (India) Limited, Worli, Mumbai which is the manufacturer of the whitener under the brand name of 'Eroz-ex,. Considering several facts therein, this Court in the order dated 28.03.2008 held that there are several products that are hazardous to health from petrol to Nail Polish, which are being commonly used and it is not at all possible to prohibit the production or use of the products that are hazardous to health, if not properly used. The Court thought of suggesting to the appropriate authorities to issue instructions to the concerned not to sell the products to the persons below iB years of age. Even that would be difficult as it is onlv a stationery procluct. Therefore, the Division Bench has directed the manufacturers to sell it by affixing a prominent label in Red letrers indicaring 'danger' on the container, so that it can have some impact on the easy availability and misuse of the product.

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Thus, there is no prohibition either to manufacture or sale of whitener. Without there being any prohibition of either manufacture or sale of vvhitener, the Commissioner of police, Hyderabad cannot issue memo dated 28.08.2021 directing

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the officials to launch special drive for next 15 days to ensure that maximum seizure of whitener is done in their area.^The said instructions are illegal.

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The Police have to conduct search and seize the products by lollowing the procedure laid down under the provisions of Cr.P.C. If the product contains any hazardous product, then they have to take action against the manufacturers and sellers in accordance with 1arv. Instead^of doing so, on the instructions of the Commissioner of^Police, the respondents authorities have conducted^{specialdrive,} searched the premises of the petitioner and^seizedthe .,,r,hitener bottles. The entire procedure followed by the respondents is arbitrary and illegal and^also in^{violation of the} procedure laid down under Cr.P.C.

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As stated above, on the report submitted^{by the $tt'} respondent, dated 3LOl.2021 , the^{3'd respondenthad} registered the above said Cr.No.57^{of 2O2l againstthe} petitioners for the offences under Sections^{276 and 336 of} iPC. The record u'ould^reveal that^{the or-rly aliegationagainst} the petitioners herein that^{they are sellingwhitener liquid15}

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m1 bottles, to the children below 18 years at their shop r,vhich is illegal and endanger to humal life.

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In view of the above allegation, it is reievant to

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extract Sections 276 and 336 of IPC which are as follons:-

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Section 276:- Salc of drug as a dilltrent drug or prcparation. Whocvcr kror.l,inqlv sells. or oflcrs or exposcs lbr sale. or issucs from a dispenslly lbr rncclicinal purposes. anv dmg or rncdical preparation" as a dillerent clrug or medical prcparation. shall be punishecl rvith intprisonment of either clescription lirr a tcrrrr rvhiclr ma) cxtcnd to si\ ntontlts. or with llne $hich nrav extend to onc thousand n-lpecs. or ',vith both.

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Section 336:- Act endangering 1ile or personal saletl o['othcrs. - Whoever does any act so rashll' ol negligentll, as to cudangcl. hr"rman life or thc pcrsonal salety ol'others^ shall be punishccl with imprisonment of cithcr dcscription lbr a tenn which may cxtond to threc months. or rvith finc utich mar crtcnd to tuo hrrndrcd ancl fifty rupees. or rvith both.

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The whitener is neither a drug nor a prodLlct used in medical preparation and there is no allegation that the petitioners herein have used the whitener for medical preparation. Therefore, the contents of the compiaint lacks ingredients of Sections 276 of IPC. In the complaint, dated 3l.Ol.2o2l, there is no mention that the petitioners rashly or negligently acted to endanger human life or personal salety of others. Thus, the contents of the complaint dated 31.01.202 1 iacks ingredients of Section 336 of IPC also.

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As discussed supra, there is no prohibition of either manufacture or sa.le of whitener. Thus, the conduct of search and seizure of whitener bottles by the respondents from the premises of the petitioners is in utter violation of the procedure laid down under Cr.p.C. Surprisingly in the report dated 01.06 .2027, counter affidavit and additional counter alfidavit of the 2"d respondent, it is mentioned that as there was no time to obtain search warrant from the Court due to the reason that if delay occurs it may cause disappearance of the petitioners as well as material evidence. When there is no prohibition either to manufacture or sale of whitener, the question of non-availability of time to obtain search warrant from the Gourt and disappearance of the petitioners as well as the material evidence does not arise. Thus, action of issuing instructions, dated 28.08.2027 by the Commissioner of Police, Hyderabad, and the act of conducting search and seizure of the whitener bottles from the 1*t petitioner,s premises by the respondents is in utter violation of the procedure laid down under Cr.P.C.

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Perusal of the record wor-rld further reveal that the Investigating Officer has recorded the statements of the police

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Constables as L.Ws. I and 2, Sub Inspector of police as L.W.3. He has not recorded statements of any indepenclent witnesses. Thus, the entire action of respondents, more particularly respondent Nos.3 and 4 taking into curstod_. and detaining the petitioners without u,.arrants and conducting search in the premises of the petitioners, shop is illegal and contrary to the procedure laid down under 1aiv. Though the petitioners have made specific allegations against Sri Rajesh Sub Inspector of Police, and Sri Gattumallu, Circle Inspector of Police, the petitioners have not made them as parties.

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In view of the said discussion, this Writ petition is allowed. The proceedings in Cr.No.S7 of 2O2l of panjagutta Police S.tation, Hyderabad, against the petitioners herein/ accused are quashed. Further, the respondents are vr,arned not to repeat such acts in future. Otherwise, the same would be viewed seriously.

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Miscellaneous Petitions, if any, pending, shall also stand closed.

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SD/.K.AMMAJI ASSISTANT REGISTRAR //TRUE COPY'

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sEc#roFFrcER

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To 1' The Principal secretary, Home Department, secretariat, State of rerangana Hyderabad. 2. The Commissioner of Police, Hyderabad.

Co.*J.. "

1
'
!

The Taskforce^{West Zone, Secunderabad'}

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The Station House^{Officer, Panjagutta P S , Hyderabad} . -

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ii;; 5il-i..GJoi^{ot ioii.u, P.'S.-Panjasutta, PanjaguttaX road' Hvderabad'} Telangana.

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Two ics to cp^{FoR HoME,High Court for the Stateof Telangana at}

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HYderabad. [OUTI

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Ohe CC to SRl.T.'BALA^{I\IOHAN REDDY,AdvocateIOPUC]}

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A. One CC to^{SRI.S.RAM N/OHAN, AdvocateIOPUC]}

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Two CD CoPies

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One sPare^coPY

SA SB 4,. ,2.

HIGH COURT

DATED:08/03/2022

ORDER

WP.No.2974 oI 2021

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ALLOWING THE W.P

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WITHOUT COSTS.

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S. Surya Prakash v. The State of Telangana and 4 others

Case brief

What is this about?

What did the court decide?

S. Surya Prakash v. The State of Telangana and 4 others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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