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2016 DIGILAW 1598 (JHR)

Rajesh Singh @ Raju v. State of Jharkhand

2016-11-24

S.N.PATHAK

body2016
ORDER : Heard the parties. 2. This Cr.M.P. has been flied with prayer to quash/set aside the order taking cognizance dated 20.11.2015. passed by District arid Additional Sessions Judge-II, Chatra as also the entire criminal proceeding in connection with N.D.P.S. No. 43/2015 arising out of Chatra P.S. Case No. 115/2015. 3. The facts in brief is that on 4.4.2015, the Superintendent of Police, Chatra received information that Cannabis was kept in the house of Rajesh Singh (petitioner). Thereafter, on the direction of Superintendent of Police Chatra, the informant Balishwar Singh, Sub-Inspector of Police along with B.D.O. and armed force reached house of Rajesh Singh at around 13:00 hrs. On seeing police party the petitioner fled away. On search in presence of B.D.O. and two independent witnesses, 15.5. Kg. of Ganja kept in 4 different-bags was seized from the entry door of the house and seizure list was prepared. The family members of the petitioner could not produce documents of Cannabis. 4. Learned counsel appearing for the petitioner submits that there is no material available oil record against the petitioner and the F.I.R. itself appears to be unbelievable. As per FIR the search and seizure was made in presence of family members of the petitioner but no signature has been obtained on the seizure list, which itself is fatal. Even not a single villager has been brought on, record to be seizure witness rather person of different village namely Hafuwa have been made seizure witness which shakes the credibility of search and seizure. The due procedure of search and seizure under the Act has not been complied. The ingredients of Sections 17 and 18 of NDPS Act are not applicable as the same relates to possession, sell, purchase, transportation etc. of opium and there is no allegation related to opium. Since the mandatory provision of search and seizure have not been complied with and as such prosecution under Sections 20 and 22 of the NDPS Act is not sustainable in the eye of law. The charge-sheet has been submitted without obtaining examination report of alleged article from the Forensic Science Laboratory. It is further contended that the petitioner lives in Ranchi for his livelihood and was not present in his village on the date of occurrence. 5. The charge-sheet has been submitted without obtaining examination report of alleged article from the Forensic Science Laboratory. It is further contended that the petitioner lives in Ranchi for his livelihood and was not present in his village on the date of occurrence. 5. On the other hand learned counsel appearing for the State has opposed the prayer and submitted that grounds taken for quashing of the impugned order as also entire F.I.R. are not tenable. It is pointed out that after submission of charge-sheet and considering materials available on record the learned Court below has already taken cognizance of the offence against the accused/petitioner. 6. I have gone through the rival submission of the parties as well as documents available on record. No ground of malicious prosecution or vengeance has been brought on record nor the petitioner has been able to discard prima facie materials against him. The Apex Court in the case of Arnanullah v. State of Bihar 2016 (3) East Cr C 51 (SC) : (2016) 6 SCC (Cri) 551 in paragraph-25 has held as under : "25. A careful reading of the material' placed on record reveals that the learned GJM took cognizance of the offences alleged against the accused persons after a perusal of the case diary, charge-sheet and other material placed before the Court. The cognizance was taken, as a prima facie case was made out against the accused persons. It is well settled that at the stage of taking cognizance, the Court should not get into the merits of the case made out by the police, in the charge-sheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the Court's duty is limited to extent of finding out whether from the material placed before it, the offence alleged therein against the accused is made out or not with a view to proceed to further with the case. 26. The proposition of law relating to Section 482, Cr PC has been elaborately dealt with by this Court in Bhajan Lal case. The relevant paras 102 and 103 of which read thus : "102. 26. The proposition of law relating to Section 482, Cr PC has been elaborately dealt with by this Court in Bhajan Lal case. The relevant paras 102 and 103 of which read thus : "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either prevent abuse of the process of any Court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontrovened allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of, the provisions of the Code or 'the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with, an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases: that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 7. In the circumstances and discussions made above, I do not find any merit in this Cr.M.P. and accordingly, same stands dismissed. The trial Court is at liberty to proceed further in accordance with law. Petitioner is also at liberty to raise all such points at the appropriate time. Petition dismissed.