JUDGMENT L.N. Mittal, J. (Oral):- ASI Kailash Chander and HC Lovlin Kumar have filed the instant petition under Section 482 of the Code of Criminal Procedure, assailing order dated 25.11.2006 (Annexure P-1) of learned Sub Divisional Judicial Magistrate, Nakodar. 2. On the night between 29/30.04.2006, police party comprising of the petitioners and other police officials, while on patrol duty, received secret information that poppy husk was being transported in Tempo traveller vehicle bearing No. PB-01-4177. On the basis of this secret information, FIR No.52 dated 29.04.2006 was got registered in Police Station Nurmahal under the Narcotic Drugs and Psychotropic Substances Act, 1985. Thereafter, at about 12:15 A.M., the aforesaid vehicle was seen coming, but on being signalled by the police party to stop, the vehicle did not stop and rather was sped away. Police party chased the said vehicle. On instructions of petitioner no.1, petitioner no.2 fired three shots from his AK-47 rifle at the aforesaid offending vehicle resulting in death of Satnam Singh Satti (on being hit by one shot), who was travelling in the said vehicle being driven by his brother Palwinder Singh. Four bags of poppy husk were found in the said vehicle. On Magisterial inquiry, vide Inquiry Report (Annexure P-2), Sub Divisional Judicial Magistrate, Nakodar concluded that petitioner no.1, as Supervisory Officer, was guilty of not performing his duty in a proper manner on account of not issuing clear orders to open firing in the air and petitioner no. 2 is guilty of gross negligence in performing his duties for which he is guilty of culpable homicide not amounting to murder. It was also observed that the incident occurred with intent to perform official duty in order to apprehend the persons involved in smuggling of poppy husk and not with an intention to kill any particular person intentionally. On the basis of this Inquiry Report, FIR (Annexure P-3) was registered. After investigation, the police submitted cancellation report (Annexure P-4). 3. Respondent no.2 – Jagdish Kaur, who is mother of deceased Satnam Singh, made statement before Sub Divisional Judicial Magistrate, Nakodar that she had no objection against the cancellation report. However, the learned Magistrate, vide impugned order (Annexure P-1) refused to accept the cancellation report and took cognizance of the case against the petitioners for offence under Section 304 read with Section 34 of the Indian Penal Code. Feeling dissatisfied, the instant petition has been filed. 4. However, the learned Magistrate, vide impugned order (Annexure P-1) refused to accept the cancellation report and took cognizance of the case against the petitioners for offence under Section 304 read with Section 34 of the Indian Penal Code. Feeling dissatisfied, the instant petition has been filed. 4. Learned counsel for respondent no.2 states that respondent no.2 has no objection to the acceptance of the instant petition. 5. Learned counsel for the petitioners referred to observations in Inquiry Report (Annexure P-2) that the road was having potholes and therefore, hand of petitioner no.2 was shaken while he was trying to fire at the tyre of the offending vehicle and due to shaking of hand, the shot hit the deceased. 6. So far as petitioner no.1 is concerned, he may be guilty of lack of proper supervision, but he has not prima facie committed any criminal offence because he allegedly instructed petitioner no.2 to either fire in the air or fire at the tyre of the offending vehicle. Accordingly, there is prima facie no material for proceeding against petitioner no.1 for any offence. 7. As regards petitioner no.2, learned counsel for the petitioners referred to Sections 76, 79 and 80 of the Indian Penal Code. It is contended that petitioner no.2 was also performing lawful duty, but while performing the duty, the shot fired by him, aimed at the tyre of the offending vehicle, unfortunately, hit the deceased because hand of petitioner no.2 was shaken due to potholes in the road. In this context, attention of the Court has also been drawn to observation in the concluding part of the Inquiry Report that the incident occurred with intent to perform official duty in order to apprehend the persons involved in smuggling of poppy husk and not with an intention to kill any particular person intentionally. Besides it, respondent no.2 has made a statement that she has no objection to the acceptance of the cancellation report or to the acceptance of the instant petition. Besides it, respondent no.2 has made a statement that she has no objection to the acceptance of the cancellation report or to the acceptance of the instant petition. In addition to it, perusal of the cancellation report (Annexure P-4) reveals that Jagdish Kaur – respondent no.2 (mother of the deceased), Darshan Singh (father of the deceased) and Palwinder Singh (brother of the deceased as well as material witness of the occurrence) furnished their affidavits during investigation of the FIR (Annexure P-3) that Satnam Singh was smuggling the poppy husk without bringing it to the notice of Palwinder Singh and when the police party signalled the vehicle to stop, Palwinder Singh sped away the same at the asking of his brother Satnam Singh (since deceased). In view of these affidavits, prosecution of petitioner no.2 would also be an exercise in futility. On the contrary, prima facie petitioner no.2 is entitled to the benefit of Sections 76, 79 and 80 of the Indian Penal Code. 8. In view of the aforesaid, the instant petition is allowed and impugned order dated 25.11.2006 (Annexure P-1) of learned Sub Divisional Judicial Magistrate, Nakodar is set aside and cancellation report (Annexure P-4), submitted by the police in FIR No.259 dated 31.07.2006 (Annexure P- 3) of Police Station Nakodar, is accepted. It is, however, expressly made clear that nothing observed herein above shall have any bearing on the disciplinary action, if any, against the petitioners. ————————————