Cr.M.P v. The State of Jharkhand

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the State : Mr. Nilesh Kumar, Advocate : Mr. Someshwar Roy, A.P.P. ----- ----- 10/19.12.2023 Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Someshwar Roy, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal proceedings including FIR and seizure in connection with Dhurwa P.S. Case No.19/16, corresponding to G.R. Case No.426/16 lodged for the offence punishable under Sections 18(C), 27(b)(ii) and 27(d) of the Drugs and Cosmetics Act, 1940, pending in the Court of the learned Judicial Magistrate at Ranchi.

3. Learned counsel for the petitioners submits that the case is arising under the Drugs and Cosmetics Act and FIR has been registered, which is not in requirement. He further submits that only complaint case can be maintained if the case is arising under the Drugs and Cosmetics Act.

4. Learned counsel for the State submits that there is no illegality in registering the FIR.

5. It appears that the point involved in this petition has also been considered by the Hon’ble Supreme Court in the case of Union of India v. Ashok Sharma and Others, reported in (2021) 12 SCC 674, wherein at paragraph No. 170 of the said judgment it has been held as under: 2 Cr.M.P. No. 792 of 2016 “170. Thus, we may cull out our conclusions/directions as follows: 170.1 In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the CrPC, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same. 170.2. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law. 170.3. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC. 170.4. IV. Having regard to the provisions of Section 22(1) (d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC. 170.5. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. 170.6. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment. 170.7. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers.”

6. Thus, in view of the above judgment of Hon'ble the Supreme Court, only complaint case can be maintained. 3 Cr.M.P. No. 792 of 2016

7. It is well settled that when the case is not made out and the High Court comes to a conclusion that to allow the proceeding to continue will amount to abuse of process of law, the High Court is competent to exercise power under Section 482 Cr.P.C. and also under Article-226 of the Constitution of India, at any stage. A reference may be made to the judgment passed by the Hon'ble Supreme Court in Anand Kumar Mohatta v. State (NCT of Delhi), reported in (2019) 11 SCC 706. Paragraph 16 of the said judgment is quoted herein below:- “16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.”

8. In view of the above facts, reasons and analysis, the entire criminal proceedings including FIR and seizure in connection with Dhurwa P.S. Case No.19/16, corresponding to G.R. Case No.426/16, pending in the Court of the learned Judicial Magistrate at Ranchi is, hereby, quashed.

9. Accordingly, this petition is allowed and disposed of.

10. Pending I.A., if any, is disposed of. Ajay/ (Sanjay Kumar Dwivedi, J.)