Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 1237 (BOM)

David Johnson v. State of Goa

2018-05-04

N.M.JAMDAR, PRITHVIRAJ K.CHAVAN

body2018
JUDGMENT : PRITHVIRAJ K. CHAVAN, J. 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for petitioner and the respondents. 2. Learned Public Prosecutor waives notice on behalf of the respondents. 3. By this petition, the petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure, 1973 (“Code” for short) seeking quashing of an FIR No. 11/2017 registered with the Anti Narcotic Cell Police Station, Goa. 4. Brief facts, necessary for disposal of the petition can be summarised thus:- The petitioner is a British National who is currently lodged in Judicial Custody at Colvale Central Jail, Goa. The respondent No. 2 who is a Police Sub-Inspector of Anti Narcotic Cell Police Station, Panaji, pursuant to an information received on 21-3-2017, conducted a raid between 12.10 hours to 18.00 hours at house No. 608/2, St. Anthony Praisa Waddo, Anjuna Bardez Goa and arrested the accused Mohammad Yusuf s/o Bashir resident of St. Anthony Praisa Waddo, Anjuna Bardez Goa for illegal possession of 75 gms of Methamphetamine and 10 LSD cubes weighing 40 grams alongwith the petitioner, resident of Anjuna Bardez Goa for being in illegal possession of the 17 gms of MDMA and 32 ecstasy tablets weighing 13 gms all approximately worth Rs. 5,86,000/- along with other articles. 5. A crime bearing No. 9/2017 under sections 22(c) and 29 of NDPS Act came to be registered with Anti Narcotic Cell Police Station. The petitioner alongwith other accused was arrested and remanded to Police Custody. 6. While the petitioner was in the police custody on 23-3-2017, it is contended that pursuant to an information given by the petitioner himself regarding concealment of some more narcotic drugs at the rented house which is owned by one Mr. Victor D’Souza at Gavwadi, Anjuna, Bardez Goa, the respondent No. 2 conducted another raid by obtaining necessary permissions from his superiors and found the petitioner in illegal possession of 20 gms of MDMA, 40 gms of DMT, 30 gms of LSD liquid, a passport of United Kingdom of Great Britan and Northern Ireland bearing No. 111922853 issued in the name of the petitioner along with cash of Rs. 3,000/- and 45 pounds. 7. All the contrabands found in possession of the petitioner were duly attached under the panchanama which was marked Exh.I, Exh.II, Exh.III and Exh.IV. 3,000/- and 45 pounds. 7. All the contrabands found in possession of the petitioner were duly attached under the panchanama which was marked Exh.I, Exh.II, Exh.III and Exh.IV. 8. The impugned FIR, therefore, came to be registered by the respondent No. 2 against the petitioner on 24-3-2017 bearing No. 11/2017 for the offence punishable under section 22(c) of the NDPS Act, 1985. 9. The narcotic substances were sent for chemical analysis to the Central Forensic Science Laboratory, Hyderabad on 20-7-2017. After investigation, the respondent No. 2 laid a charge-sheet in the Court of Sessions Judge Panaji on 16-9-2017. The respondent No. 2 has also filed a charge-sheet in connection with the first FIR bearing No. 9/2017 in the same Court. 10. Being aggrieved with the registration of two FIRs and consequently filling of two charge-sheets by the respondent No. 2, which according to the petitioner is nothing but a continuation of the investigation carried out in the FIR No. 9/2012, present petition has been filed. 11. We have heard Mr. Narendra Jain, learned Counsel for the Petitioner and Mr. S. R. Rivankar, learned Public Prosecutor for the respondents. With the assistance of the learned Counsel for the Petitioner, we have gone through the impugned FIR as well as FIR (in Crime No. 9/2017) and charge-sheets filed against the petitioner by the respondent No. 2. 12. It is argued by the learned Counsel for the petitioner that pursuant to the registration of FIR No. 9/2017, investigation has been carried out and during the same investigation the impugned FIR came to be registered against the petitioner which is nothing but an extension of facts of the first FIR and, therefore, subsequent FIR No. 11/2017 needs to be quashed and set aside. It is contended that the first informant in the crime No. 9/2017 is also the Investigating Officer in both the FIRs’ which indicate mala-fides on the part of the Investigating Agency in getting the impugned FIR registered for the same alleged offence. The learned Counsel, therefore, contends that it is nothing but unnecessary multiplication of the proceedings, thereby burdening not only the Investigating Agency but also the Court, since the impugned FIR and the Charge-sheet is a part and parcel of the first FIR, the impugned FIR is required to be quashed. 13. The learned Counsel, therefore, contends that it is nothing but unnecessary multiplication of the proceedings, thereby burdening not only the Investigating Agency but also the Court, since the impugned FIR and the Charge-sheet is a part and parcel of the first FIR, the impugned FIR is required to be quashed. 13. The learned Counsel has therefore, pressed into service judgments of the Hon’ble Supreme Court in following cases:- (i) Babubhai and Others vs. State of Gujarat and Others, 2010 Mh. LJ Online (Cri.) (SC) 37 : (2010) 12 SCC 254 . (ii) Naresh Kakkar vs. State, 1994 SCC Online Del 554. 14. On the other hand, the learned Public Prosecutor submits that the subsequent offence being a distinct one, the registration of the second FIR is justified. He drew our attention to section 22 of the NDPS Act by stating that if any one found either manufacturing, possessing, selling, purchasing, transporting, importing inter-State, exporting inter-State or using any psychotropic substance in contravention of the Act, can be punished. As such, it is the contention of Mr. Rivankar, that since different contrabands were found in the possession of the petitioner, at different point of time, the impugned FIR and the charge- sheet is legally justified. It is also the contention of Mr. Rivankar that it was a different occurrence altogether giving rise to one more cognizable offence and it was not committed in the course of same transaction. 15. The Hon’ble Supreme Court in the case of Babubhai (supra) held in paragraphs 17 to 20 thus:- 17. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under section 154, Criminal Procedure Code is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under section 169 or 170, Criminal Procedure Code, as the case may be, and forwarding of a police report under section 173, Criminal Procedure Code. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under section 162, Criminal Procedure Code. In such a case the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted. 18. The instant case is required to be examined in the light of the aforesaid settled legal propositions. If the two FIRs are read together, it becomes clear that the incident started in the morning as per both the FIRs. C.R. No. I-154/2008, lodged by Mr. M.N. Pandya, Sub Inspector of Police stated that he reached the place of occurrence after receiving the information from the police station and found that mob had already dispersed. The case of the prosecution is that when the police reached the place of occurrence of the first incident, the mob had already dispersed, could not be correct for the reason that some of the witnesses have stated that the clash was going on when the police arrived and police resorted to force to disperse the mob. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals. In the first incident as per the said FIR the place of occurrence had been village Dhedhal near the pond. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals. In the first incident as per the said FIR the place of occurrence had been village Dhedhal near the pond. In the pond, the damaged tractor, motor cycle and chhakda were found. Mr. M.N. Pandya called the extra police force and went inside the village. He found 2000-4000 persons and witnessed a free fight between them. The Koli Patels had surrounded some of the houses of the Bharwads. Some persons had been locked inside their houses and they had also put their houses at fire. The superior officers also came there. Police has used force todisperse the mob in the said incident and there were heavy casualties and there was loss of lives also. If we examine minutely the FIR in C.R. No. I-155/2008, the incident also occurred near the pond in the village Dhedhal. The damaged tractor, motor cycle and chhakda were there in the pond. One person Ajitbhai Prahladbhai was killed in the incident. Babubhai Popatbhai Koli Patel also got injured. While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in close proximity of time, therefore, they are two parts of the same transaction. More so, the death of Ajitbhai Prahladbhai has been mentioned in both the FIRs. From the report for deletion of section 302, Indian Penal Code, it is apparent that it is not the case of the Investigating Officer that the death of Ajitbhai Prahladbhai had not occurred during the course of the incident in connection with which C.R. No. I-154 of 2008 came to be registered. 19. It is also evident that houses of the Bharwads were inside the village in contiguous areas and the offence had spread over the entire area as is evident from the panchnama of the scene of offence drawn in C.R. No. I155 of 2008 as well as from the contents of the said FIR. Same situation regarding the place of occurrence appears from the panchnama of the scene of incident in C.R. No. I-154/2008. Panchnama of the scene of incident of C.R. No. I-154/2008 includes the scene of occurrence of C.R. No. I-155/2008 which makes it clear that both the FIRs pertain to the two crimes committed in the same transaction. Same situation regarding the place of occurrence appears from the panchnama of the scene of incident in C.R. No. I-154/2008. Panchnama of the scene of incident of C.R. No. I-154/2008 includes the scene of occurrence of C.R. No. I-155/2008 which makes it clear that both the FIRs pertain to the two crimes committed in the same transaction. The scene of offence panchnamas establish clearly that the incidents in both the cases could not be distinct and independent of each other. In fact, it is nobody’s case that incident relating to CR No. I-155/08 occurred at Dhedhal Chokdi (Cross-Roads). 20. In view of the above, we are of the considered opinion that the High Court reached the correct conclusion and second FIR C.R. I-155/2008 was liable to be quashed. Tainted Investigation. 16. A perusal of the complaint lodged by the respondent No. 2 on behalf of the State reveals that he registered the Crime No. 9/2017 under sections 22(c) and 29 of the NDPS, Act, 1985 with the Anti Narcotic Cell Police Station against the petitioner and one more accused who were found in possession of contraband drugs. It further reveals that during the custodial interrogation qua the petitioner on 23-3-2017 at 16.30 hours, he disclosed that he had concealed narcotic drugs in a locker of his cupboard in his rented house owned by one Shri Victor D’Souza at Gavwadi, Anjuna, Bardez, Goa and that he had concealed the key to the lock of the house and cupboard locker under the stone on the left side of his house. The information was reduced into writing and subsequently the respondent No. 2, after obtaining authorisation/permission from the DYSP Anti Narcotic Cell, conducted a raid in the presence of panchas and found the contraband as stated herein above. 17. In view of the ratio laid down by the Supreme Court in case of Babubhai (supra) what is required to be found out as to whether both the FIRs’ relates to the same occurrence or are in regard to incidents which are two or more parts of the same transaction. If answer is affirmative, the second FIR is liable to be quashed. However, where the version in second FIR is different and they are in respect of two different incidents/crimes then the second FIR is permissible and investigation in both FIRs has to be conducted. If answer is affirmative, the second FIR is liable to be quashed. However, where the version in second FIR is different and they are in respect of two different incidents/crimes then the second FIR is permissible and investigation in both FIRs has to be conducted. It is clear from the complaint as well as from the record that during the custodial interrogation in Crime No. 9/2017 the petitioner is alleged to have disclosed the concealment of narcotic drugs in his rented house which is owned by one Victor D’Souza at Gavwadi, Anjuna, Bardez Goa which necessarily means that the subsequent offence is nothing but the occurrence giving rise to more than one cognizable offence committed in the course of same transaction and therefore, the subsequent FIR is liable to be quashed. 18. It is not the case of the prosecution that pursuant to an information from a third source or from some independent person it had conducted subsequent raid. Moreover, contrabands in both cases were found from the possession of the petitioner as per section 22 of the NDPS Act in the course of same transaction. It is neither the case of the prosecution that the petitioner was selling, purchasing, transporting, importing inter-State contrabands. As such, in view of the peculiar fact of this case the ratio in case of Babhubai (supra) will have to be made applicable. 19. After examining the facts and circumstances of the case giving rise to both the FIRs and after applying the test of sameness, it is clear that both the FIRs relating to the incidents which are two in numbers but arising out of same transaction. By no stretch of imagination it can be said to be an altogether distinct and different offence committed at different point of time as what transpired is that the petitioner was already in possession of another set of contraband at his rented house which he alleged to have disclosed during custodial interrogation within a day or two of his arrest. 20. It is pertinent to note that the respondent No. 2 himself is the first informant in FIR No. 9/2017 and is the Investigating Officer in both the FIRs. 21. 20. It is pertinent to note that the respondent No. 2 himself is the first informant in FIR No. 9/2017 and is the Investigating Officer in both the FIRs. 21. The recovery of contraband at the behest of the Petitioner consequent to his disclosure statement was effected by the respondent No. 2 and, therefore, it was a part of the same transaction and hence, the registration of impugned FIR was not legal which ought not to have been registered. The Hon’ble Apex Court in the case of T.T. Antony vs. State of Kerala and Others, 2001 Mh. LJ Online (Cri.) (SC) 6 : 2001 Cri. L.J. 3329 observed in paragraphs 18 and 19 as follows:- “18. An information given under sub-section (1) of section 154 of, Criminal Procedure Code is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 of, Criminal Procedure Code, as the case may be, and forwarding of a police report under section 173 of Criminal Procedure Code. It is quite possible and it happens not infrequently that more information than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 of Criminal Procedure Code. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by section 154 of Criminal Procedure Code. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by section 154 of Criminal Procedure Code. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of Criminal Procedure Code. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Criminal Procedure Code. Take a case where an FIR mentions cognizable offence under section 307 or 326, Indian Penal Code and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under section 302, Indian Penal Code need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under section 173(2) or 173(8) of Criminal Procedure Code, as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. 19. The scheme of the Criminal Procedure Code is that an officer in charge of a Police Station has to commence investigation as provided in section 156 or 157 of Criminal Procedure Code on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. 19. The scheme of the Criminal Procedure Code is that an officer in charge of a Police Station has to commence investigation as provided in section 156 or 157 of Criminal Procedure Code on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under section 169 or 170 of Criminal Procedure Code, as the case may be, and forward his report to the concerned Magistrate under section 173(2) of Criminal Procedure Code. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173, Criminal Procedure Code.” 22. Thus, it can be seen that the impugned FIR No. 11/2017 registered with the Anti Narcotic Cell Police Station Goa relates to an incident which is a part of the same transaction and, therefore, it needs to be quashed and set aside. 23. In view of the aforesaid settled principles of law as well as the ratio laid down by the Supreme Court in the case of Babubhai (supra), the impugned FIR No. 11/2017 is hereby quashed and set aside which is registered with the Anti Narcotic Cell Police Station, Panaji. However, it is made clear that in view of section 220(1) of the Code, the learned Special Judge is directed to club both the charge-sheets together and the petitioner is directed to face a single composite trial. Needless to say that we have not gone into the merits of the case. 24. Petition is partly allowed. FIR No. 11/2017 registered with Anti Narcotic Cell Police Station, Goa is quashed and set aside in the light of the above discussion. Petition partly allowed.