State v. Shahrun and Another) under sections
Case Details
Court No. - 80 Case :- APPLICATION U/S 482 No. - 15514 of 2021
Legal Reasoning
Applicant :- Shahrun And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anay Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Ajay Kumar Srivastava, learned counsel for applicants and learned A.G.A. for State. 2. Perused the record. 3. This application under section 482 Cr.P.C. has been filed challenging summoning order dated 27.2.2020, passed by Additional District and Sessions Judge, Court No.7, Saharanpur/Special Judge (NDPS Act) Saharanpur in Complaint Case No. 332 of 2020 (State Vs. Shahrun and Another) under sections 18 (c)/27(b)(ii) of Drug and Cosmetic Act, 1940, Police Station Gangalhedi, District Sahranpur as well as entire proceedings of above mentioned complaint case now pending in the Court of Additional District and Sessions Judge, Court No.7, Saharanpur/Special Judge (NDPS Act) Saharanpur. 4. Record shows that complainant/opposite party-2 Drug Inspector, Saharanpur, District Saharanpur filed complaint dated 27.2.2020 in the Court of Additional District and Sessions Judge, Court No.7, Saharanpur alleging therein that accused persons namely, applicant herein are guilty of committing an offence punishable under sections 18 (c)/27(b)(ii) of Drugs and Cosmetic Act, 1940. 5. After filing of aforesaid compliant, Additional District and Sessions Judge/ Special Judge (NDPS Act) vide order dated 27.2.2020 took cognizance upon same and simultaneously summoned the applicants. Feeling aggrieved by Summoning Order dated 27.2.2020, referred to above, as well as the entire proceedings of above mentioned complaint case, applicants have now approached this Court by means of present application under section 482 Cr.P.C. 6. Learned counsel for applicants contends that impugned summoning order passed by Court below is wholly illegal and without jurisdiction. Same is a totally non speaking order. It is thus submitted that applicants have been summoned in aforementioned complaint case by Court below without application of mind. It is next contended that the complaint filed by complainant/opposite party-2 against applicants is totally false and concocted. Applicants have not committed any offence. As such, present criminal proceedings are not only illegal but also malicious. Same are an abuse of process of Court and therefore liable to be quashed by this Court. 7. Per contra, the learned A.G.A. has opposed this application. Learened A.G.A. submits that since complaint has been filed by opposite party-2 who is a Drug Inspector, therefore, Court below was not required to examine the complaint and his witnesses in terms of section 200/202 Cr.P.C. Reference has been made to Section 200 (a) Cr.P.C. It is then contended that Court below has summoned the applicants after being prima facie satisfied. The Court while summoning an accused in complaint case is not required to pass a detailed and reasoned order. In support of above, he has placed reliance upon paragraph 37 of Apex Court judgement in Nupur Talwar Vs. Central Bureau of Investigation and Another, (2012) 11 SCC 465. For ready reference same is reproduced herein under: " 37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under : "(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." 8. Learned A.G.A. submits that whether the applicants are guilty of an offence under sections 18 (c)/27(b)(ii) of Drug and Cosmetic Act, 1940 or whether no offence under aforesaid sections is made out against applicants can be agitated by applicants before Court below itself at the time of framing of charge. 9. At this stage, this Court cannot decide the veracity of the allegations made in complaint simply on the basis of averments made in the affidavit filed in support of present application. On the cumulative strength of above, learned A.G.A. contends that applicants are not entitled to any indulgence granted by this Court. 10 When confronted with above, learned counsel for applicants could not overcome the same. 11. Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial of above mentioned complaint case itself. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283. 12. In view of above, application fails and is liable to be dismissed. 13. It is accordingly dismissed. Order Date :- 5.1.2022 Arshad