The High Court
Case Details
1 Cr.M.P. No. 2378 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2378 of 2023 1. M/s N. Sons Surgical Co. through its proprietor Swapan Ghosh, aged about 60 years, son of Narendranath Ghosh having its office at Patila Chandra, PO Paschim Madhyampur, P.S. Basirhat, North 24 Parganas, West Bengal-743429 2. Swapan Ghosh, aged about 60 years, son of Narendranath Ghosh, resident of Patilachandra, Patilachandra, Paschim Madhyampur, P.O. Paschim Madhyampur, PS. Basirhat, North 24 Parganas, West Bengal-743429 3. Sanat Kumar Ghosh @ Sanat Ghosh, aged about 56 years, son of Narendranath Ghosh, Resident of Patilachandra, Patilachandra, P.O.- Paschim Madhyampur, P.S.-Basirhat, North 24 Parganas, West Bengal-743429. .......Petitioners Versus 1. The State of Jharkhand 2. Sujit Kumar, Drugs Inspector, Hazaribagh, Sadar Hospital, P.O. + P.S + District- Hazaribagh-825301 ........... Opposite Parties For the Petitioners For the State : Mr. Siddharth Ranjan, Adv. : Mr. P.D.Agrawal, Spl.PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Legal Reasoning
Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 01.04.2013 in connection with G (Drug) Case no. 01 of 2011 passed by learned JMFC, Hazaribagh, by which, even though the execution report of the Bailable Warrant of Arrest was not returned; without any rhyme or reason, the learned magistrate issued the Non-Bailable Warrant of Arrest against the petitioners as also the order dated 30.05.2018 by which 2 Cr.M.P. No. 2378 of 2023 learned Chief Judicial Magistrate, Hazaribagh, ordered issue of the proclamation under Section 82 of the Code of Criminal Procedure against the Petitioners, and the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh, by which, attachment orders of the property of the petitioners have been passed in connection with Drug & Cosmetics Case No. 01/2011 involving the offences punishable under Sections 27(b) and Section 27(d) of Drugs & Cosmetics Act, pending in the court of learned Additional Sessions Judge-II, Ramgarh. 3. The brief facts of the case is that the petitioners are accused of the said case allegedly having committed offences punishable under Sections 27(b) and Section 27(d) of Drugs & Cosmetics Act and cognizance was taken against them vide order dated 03.01.2011 and summons were issued. But without service of summons, Bailable Warrant of Arrest was issued and without Execution Report of the Bailable Warrant of Arrest vide order dated 01.04.2013, the Non-Bailable Warrant of Arrest has been issued and without Execution Report of the Non-Bailable Warrant of Arrest vide order dated 30.05.2018, the proclamation under Section 82 of Cr.P.C has been issued and vide order dated 11.07.2022, attachment order of the property of the petitioner under Section 83 of Cr.P.C, has been issued.
Legal Reasoning
4. It is submitted by learned counsel for the petitioners by drawing attention of the Court to the supplementary affidavit dated 06.10.2023 that the attachment order under Section 83 of Cr.P.C, has not been carried out by the concerned authority and no property of the petitioners has been attached as yet. It is further submitted that the learned Judicial Magistrate, Hazaribag without any material in the record to suggest that the petitioners are evading their arrest, has causally and in a mechanical manner issued the Non-Bailable Warrant of Arrest, hence, the order dated 01.04.2013 is not sustainable in law. It is further submitted that the proclamation under Section 82 of Cr.P.C, has been issued by order dated 30.05.2018, without following the due process of law and without recording satisfaction that the petitioners are absconding 3 Cr.M.P. No. 2378 of 2023 or concealing to avoid their arrest, which is a sine qua non for issuing proclamation under section 82 of Cr.P.C and without any information available in the record, the proclamation under Section 82 of Cr.P.C was ever made, passed the order for attachment of the property of the petitioners under Section 83 of Cr.P.C without mentioning the details of the property to be attached hence, it is submitted that the order dated 30.05.2018 by which the proclamation under section 82 Cr.P.C was made and the order dated 11.07.2022, by which, the attachment order under Section 83 of Cr.P.C, has been passed, being not in accordance with law, be quashed and set aside. 5. Learned Spl.P.P. appearing for the State vehemently opposes the prayer for quashing the order dated 01.04.2013 passed by learned JMFC, Hazaribagh, order dated 30.05.2018 passed by learned Chief Judicial Magistrate, Hazaribagh and the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh and submits that the very fact that learned JMFC, Hazaribagh, so far as the order dated 01.04.2013, Chief Judicial Magistrate, Hazaribagh so far as the order dated 30.05.2018 and learned Additional Sessions Judge II, Ramgarh so far as the order dated 11.07.2022, have passed the respective orders which itself shows that there were materials available in the record for the concerned Judicial Officers to be satisfied that there is justification for issuance of Non-Bailable Warrant of Arrest, proclamation order and the attachment order, respectively hence, it is submitted that this criminal miscellaneous petition being without any merit, be dismissed. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that Section 73 of the Cr.P.C, deals with the situations when the warrant may be directed to any person and envisages that learned Chief Judicial Magistrate or the learned Judicial Magistrate of First Class, may direct a warrant inter alia for any person who is an accused of non-bailable offence and who is evading his arrest. 4 Cr.M.P. No. 2378 of 2023 7. Now coming to the facts of the case; undisputedly after cognizance, the summon was issued to the petitioners but the summon was never served upon them and without service of summons, the Warrant of Arrest was issued and the same was never executed but even then learned Magistrate, Hazaribag vide order dated 01.04.2013, has issued the Non-Bailable Warrant of Arrest even though there was no material in the record that the petitioners were evading their arrest, accordingly in the considered opinion of this Court, the order dated 01.04.2013, passed by learned JMFC, Hazaribag, is not sustainable in law and the same is liable to be quashed and set aside. Accordingly, the order dated 01.04.2013, passed by learned JMFC, Hazaribag in connection with Drug & Cosmetics Case No. 1/2011 for commission of alleged offences under Sections 27(b) and Section 27(d) of Drugs & Cosmetics Act, is quashed and set aside. 8. So far as the order dated 30.05.2018 passed by learned Chief Judicial Magistrate, Hazaribagh is concerned, by now it is a settled principle of law, that the court which issues the proclamation under Section 82 of Cr.P.C. must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of Cr.P.C. is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of Cr.P.C., it must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of Cr.P.C. is issued. As already indicated above since the learned Chief Judicial Magistrate, Hazaribagh has neither recorded its satisfaction that the petitioners are absconding or concealing themselves to evade their arrest nor fixed any time or place for appearance of the petitioners, this Court has no hesitation in holding that the learned Chief Judicial Magistrate, Hazaribagh has committed illegality by passing the order for issue of the said proclamation under Section 82 of Cr.P.C. without complying with the mandatory requirements of law. Hence, the said order dated 30.05.2018 passed by learned Chief Judicial Magistrate, 5 Cr.M.P. No. 2378 of 2023 Hazaribagh is not sustainable in law and the continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 30.05.2018 passed by learned Chief Judicial Magistrate, Hazaribagh be quashed and set aside. Accordingly, the order dated 30.05.2018 passed by learned Chief Judicial Magistrate, Hazaribagh, in connection with Drug & Cosmetics Case No. 1/2011 for alleged offences under Sections 27(b) and Section 27(d) of Drugs & Cosmetics Act is quashed and set aside. 9. So far as the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh is concerned, it is a settled principle of law that the court issuing proclamation under Section 83 of Cr.P.C. may for reasons to be recorded in writing at any time after the issue of proclamation, order for attachment of any property movable or immovable or both belonging to the proclaimed person. Now, in the absence of any material in the record to suggest that the proclamation under Section 82 of Cr.P.C. was in fact made in accordance with law, certainly the learned Additional Sessions Judge, II Ramgarh, committed illegality by passing the order of attachment of property of the petitioners without mentioning the description of the property to be attached and without recording any reason in writing about the need for passing such order of attachment. 10. Hence, under such circumstances, this Court has no hesitation in holding that the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh, in connection with Drug & Cosmetics Case No. 1/2011 is also not in accordance with law and amounts to a gross illegally and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh, in connection with Drug & Cosmetics Case No. 1/2011 be quashed and set aside. Accordingly, the order dated 11.07.2022 passed by learned Additional Sessions Judge, II Ramgarh, in connection with Drugs & Cosmetics Case No. 1/2011 is quashed and set aside 6 Cr.M.P. No. 2378 of 2023 11. It is submitted by the learned counsel for the petitioners that the petitioners undertake to surrender before learned Additional Sessions Judge II, Ramgarh-cum- Special Judge, Drugs and Cosmetics Act cases, within eight weeks from the date of this order. 12. In case, the petitioners fail to appear before learned Additional Sessions Judge II, Ramgarh-cum- Special Judge, Drugs and Cosmetics Act cases, within eight weeks, from the date of this order, learned Additional Sessions Judge II, Ramgarh, may pass fresh order in accordance with law.
Decision
13. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 7th December, 2023 Smita /AFR (Anil Kumar Choudhary, J.)