66 Case :- APPLICATION U/S 482 No. - 13411 of 2022 & Anr. v. Anoop @ Anupam Garg) under Section 21

Learned counsel for the applicant has argued that a first information report had been lodged by one S.I. Pravesh Kumar before P.S. Civil Lines, Muzaffarnagar being FIR No. 0676 on 12.12.2019 at 23:45 hours under Sections 21, 22, 25, 26 of N.D.P.S. Act and Sections 18A and 27 of Drugs and Cosmetics Act, 1940, relatable to the commission of offence on 12.12.2019 with an allegation that on the basis of secret information so gathered by the prosecution, a tip was extended that there is a possibility of catching hold of the accused, who are dealing with the contraband being specified under N.D.P.S. Act. Learned counsel for the applicant has argued that as per the version contained in the FIR at one of the crossings, the secret information was extended by the informer that from the direction of the Roadways one of the accused is coming and thereafter when the checking was being conducted by Surendra Rao and Rakesh Gautam, then a person came in an Activa and he was caught at 18:35 hours by the police by using force, wherein the person who was intercepted got identified as Sahil @ Shahbaz and consequent thereto search was conducted wherein in a carton drugs were found. Thereafter the Drug Inspector Muzaffarnagar and Drug Inspector, Shahjahanpur were also called and the Drug Inspector, Gautam Budh Nagar was also communicated the said fact, and thereafter the search team went into a room, wherein bill was shown and at that point of time, it has been alleged that the accused were arrested, however, the applicant herein ran away. Learned counsel for the applicant has further sought to argue that so far as the possession of 63.868 kg of Tramadol is concerned, the same cannot be of any help or assistance to the prosecution to lodge criminal proceeding against the applicant, particularly, when the applicant holds a license of druggist or stockist, which is Annexure-7 to the application. Learned counsel for the applicant has further argued that the applicant was at no point of time instrumental in commission of offence and he was not present at the place of occurrence. According to learned counsel for the applicant, as the applicant is 62 years of age, it is highly improbable that he could have ran away from the clutches of the inspecting team. Learned counsel for the applicant has lastly submitted that the applicant is innocent and further while relying upon paragraph no.11 has sought to contend that even from the Government Analyst Report, there was nothing found negative regarding the drug, which is being sought to be shown to be in possession of the applicant. In nutshell, argument is that he has been falsely implicated in the case in question. Learned counsel for the applicant has cited the following judgments: (a) Union of India and another vs. Sanjeev V. Deshpande, AIR 2014 SC 3625; (b) State of Punjab vs. Rakesh Kumar, 2019 CrLJ 982 (c) Vibhor Rana v. Union of India, 2022(2) ALJ 244: AIROnline 2021 ALL65034 By placing reliance upon the said judgments, Sri Akhilesh Chandra Shukla has sought to argue that none of the provisions contained under the NDPS Act as well as under the Drugs and Cosmetics Act do not apply in this case with relation to commission of offence. Countering the said submission, Sri Ojha, learned A.G.A, has argued that from the perusal of the FIR as well as the statement and the document available on record, it is explicitly clear that the cognizable offences are made out and whatever alibi the applicant is taking in order to show that he has not committed the offence is a defence, which obviously is available to him at the stage of trial and this Court at the present juncture and in the present proceeding cannot venture into factual enquiries. According to Sri Ojha, this Court may not exercise the jurisdiction under Section 482 CrPC at this stage, that will amount to preempting a trial, which is not permissible. Sri Ojha, the learned A.G.A, has placed reliance on the case of M/S Neeharika Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192. The Hon'ble Apex Court in the case of M/S Neeharika Infrastructure Pvt. Ltd. (supra) has clearly mandated that at a pre-trial stage, this Court in exercise of jurisdiction under Section 482 CrPC embark upon the factual enquiry with regard to the merits of the allegations, as they are subject matter of trial. The proposition of law laid down by the Hon'ble Apex Court in M/S Neeharika, Infrastructure Pvt. Ltd. (Supra) is as under:- "i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; iii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied." On a pointed query, being made to learned counsel for the applicant, as to whether there was any jurisdictional error committed by the court below, the learned counsel for the applicant could not point out any jurisdictional error committed by the court below, but only argued on factual score. Considering the submissions of the rival parties, this Court is of the opinion that this Court cannot venture around and make factual enquiry in this regard at a pre-trial stage, particularly, when applicant can take all the argument relatable as a defence in order to show that he has not committed the offence. So far as, the reliance and reference placed upon in the case of Sanjeev V. Deshpande (supra), Rakesh Kumar (supra) and Vibhor Rana (supra), is concerned, the same are thoroughly inapplicable in the case in hand, as the judgment in the case of Sanjeev V. Deshpande (supra) and Rakesh Kumar (supra) were the proceedings emanating in appeal and similarly, so far as the case of Vibhor Rana (supra) is concerned, the same deals with the issue relatable to the Phensedyl New Cough Linctus Syrup as to whether it comes within the domain of NDPS Act or not. The judgment so relied upon by the learned counsel for the applicant, in case according to the applicant, is applicable to the renders assistance to the contentions so sought to be raised by them, then obviously the same can be very well cited and considered at this stage of trial and not at this stage, when the trial is yet to begin. No other point either legal or factual has been urged by the learned counsel for the applicant. Resultantly, the present application under Section 482 CrPC is dismissed and consigned to record, leaving it open to the applicant to prefer an appropriate application seeking bail and this Court expects that the court below will examine the contentions of the applicant as stated in the bail application and decide the same with most expedition. Order Date :- 1.6.2022 N.S.Rathour SINGH RATHOUR Reason: Location: High Court of Judicature at Allahabad