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2018 DIGILAW 643 (GUJ)

KISHORBHAI KALESTO NAYAK v. STATE OF GUJARAT

2018-04-24

A.J.DESAI

body2018
JUDGMENT AND ORDER : A.J. Desai, J. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), one of the accused persons, namely, Kishorbhai Kalesto Nayak has prayed to quash and set aside FIR bearing II C.R. No.54 of 2016 registered with Pardi Police Station of Dist. Valsad on 17.4.2016 for the offences punishable under Sections 20 (c), 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), along with the Charge-sheet filed therein and case registered as Criminal Case No.4 of 2016 pending before the learned Sessions Judge, Valsad, mainly on the ground that the petitioner cannot be tried twice for the same offence as barred under Article 20 (2) of the Constitution of India. 2. Pursuant to the notice issued by this Court, the respondents have appeared through learned Public Prosecutor Mr. Mitesh Amin and have opposed grant of relief as prayed for. 3. The brief facts arise from the record are as under :- 3.1 That one D. G. Rabari, Police Sub-Inspector of B Division Police Station, Bharuch lodged an FIR being C.R. No. II-31 of 2016 on 16.4.2016 for the offences punishable under Sections 8 (c), 20 (B) and 29 of the NDPS Act against six accused persons including the present petitioner alleging that the complainant having prior secret information that one Tempo having particular Registration Number is being used for transportation of huge quantity of Ganja and the same is stationed at the residence of one of the accused, namely, Imtiyaz. Hence, after following the procedure provided under the NDPS Act, he raided the place of Imtiyaz. It was found that along with Imtiyaz, two other persons, namely, Mahesh Dahyabhai Bhati and Kanabhai Tulsibhai Solanki were present. It was also found that contraband, namely, Ganja in huge quantity was lying in one of the rooms of the house of Imtiyaz. Raid was carried out in the presence of Panchas and it was found that in all, 303.345 Kgs. Of Ganja worth Rs.24,26,760/- was seized and samples were collected and were sent for FSL. It was also found that contraband, namely, Ganja in huge quantity was lying in one of the rooms of the house of Imtiyaz. Raid was carried out in the presence of Panchas and it was found that in all, 303.345 Kgs. Of Ganja worth Rs.24,26,760/- was seized and samples were collected and were sent for FSL. 3.2 On inquiry, all the three accused informed the Investigating Agency that the contraband were supplied by one Munir Shafik Mansuri, permanent resident of Valsad and the present petitioner who is permanent resident of Orissa, from a farm near the farm of Munir situated in Valsad District. It was disclosed by them that they had purchased the Ganja from both these persons. Thereafter, other procedures were carried out by the concerned Investigating Agency in connection with the said offence registered at B Division Police Station of Bharuch. Having received information that the Ganja was purchased by Imtiyaz from Munir and the present petitioner, namely, Kishorbhai who had kept the Ganja for selling purpose, the concerned Police Officer of Valsad District was informed. One Mr. B. J. Sarvaiya, Senior Police SubInspector of Pardi Police Station at around 23.55 Hours on 16.4.2016 raided the place near Valsad wherein Munir and Kishorbhai (petitioner herein) were found present and from the said place, huge quantity of Ganja weighing 498.240 Kgs. worth Rs.49,82,400/- was found and accordingly, the impugned FIR came to be lodged against Munir, Kishorbhai (petitioner herein) and other accused whose names have been referred in the FIR. The petitioner was arrested on the spot and is behind the bars since then. 3.4 Having charge-sheeted for these two offences and separate trials would take place, the present petition has been filed on the ground that the discovery of Ganja from Valsad from the possession of the petitioner at Valsad does not constitute a separate offence and it is in continuation of the registration of the first offence and, therefore, the same is required to be quashed and set aside. 4. Ms. 4. Ms. Kruti M. Shah, learned advocate appearing for the petitioner would submit that the first FIR which is registered at B Division Police Station of Bharuch, the petitioner is made an accused on the ground of statement of co-accused wherein they have stated that the goods were supplied by the other accused including the present petitioner and, therefore, when the place belonged to Munir and the petitioner was raided by different Police Stations, if any contraband is found, it would be a part of the investigation of the offence registered at B Division Police Station, Bharuch and whatever the contraband is discovered, it would be a discovery panchnama under Section 27 of the Indian Evidence Act. She would further submit that the petitioner has been charged for abatement of the offence registered with B Division Police Station, Bharuch i.e. supplying the contraband to other accused. However, if any substance is found during investigation, there is no need to lodge a separate FIR for which legality of the same has been questioned in this application. 5. She would further submit that protection has been granted to a citizen under Article 20 (2) of the Constitution of India that a person cannot be prosecuted or punished for the same offence more than once. She would submit that with regard to the allegations made in the first FIR registered with B Division Police Station, Bharuch, the petitioner is already being tried and, therefore, any material collected during the investigation of the same, cannot be treated as if the person has committed another offence. In support of her submissions, she has relied upon a decision of the Hon'ble Supreme Court in the case of T. T. Antony v. State of Kerala and others, (2001) 6 SCC 181 and also in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation and another, (2013) AIR(Supreme Court) 3794, as well as unreported decision of the coordinate Bench (Coram :- Hon'ble Mr. Justice Anant S. Dave) dated 21.6.2017 delivered in Criminal Misc. Application No.6623 of 2013 with Criminal Misc. Application No.5035 of 2013. She, therefore, would submit that the petition may be allowed and the FIR which is subsequently registered as II C.R. No.54 of 2016 with Pardi Police Station of Dist. Valsad be quashed and set aside qua the applicant. 6. On the other hand, Mr. Application No.6623 of 2013 with Criminal Misc. Application No.5035 of 2013. She, therefore, would submit that the petition may be allowed and the FIR which is subsequently registered as II C.R. No.54 of 2016 with Pardi Police Station of Dist. Valsad be quashed and set aside qua the applicant. 6. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent - State has vehemently opposed this petition and would submit that both the offences are distinct offences and cannot be treated as the same. He would submit that in the offence registered at B Division Police Station of Bharuch, the allegation levelled against the petitioner is of supplying the contraband i.e. Ganja to other accused, whereas in the offence registered at Pardi Police Station, Valsad, the petitioner was found with the psychotropic substance i.e. Ganja in huge quantity and, therefore, both the cases are not comparable. He would further submit that the Hon'ble Supreme Court by relying upon the decision in the case of T. T. Antony v. State of Kerala and others, has recently in the case of State of Jharkhand through SP, Central Bureau of Investigation v. Lalu Prasad Yadav @ Lalu Prasad, (2017) 8 SCC 1 , held that there is distinction between same offence and same kind of offence. He would submit that if the papers of investigation are perused, both the offences are distinct though the accused may be common. He would further submit that the facts might be overlapping, however that does not mean that the second offence can be treated as part of the investigation of the first offence. He, therefore, would submit that the present petition be dismissed. 7. I have heard learned advocates appearing for the respective parties. As stated herein above, secret information was received by the Police Sub-Inspector of B Division Police Station, Bharuch that some contraband has been transported in a vehicle which was to be delivered at the residence of Imtiyaz. Having recorded the details about the same and forwarded to the higher Officer, when the raid was carried out, said Imtiyaz was found along with two persons, namely, Mahesh Dahyabhai Bhati who was driving the vehicle and one Kanabhai Tulsibhai Solanki who was cleaner of the said vehicle. Till those persons were interrogated, the name of the petitioner was not disclosed. Till those persons were interrogated, the name of the petitioner was not disclosed. However, subsequently, it revealed that the contraband was supplied from a place near Valsad by Munir as well as the present petitioner, namely, Kishorbhai Kalesto Nayak. The first FIR was registered with B Division Police Station, Bharuch on 16.4.2016 at 14.33 hours wherein the present petitioner, Munir and other persons were made accused though they were not found on the spot along with the substance. Therefore, in the said offence, all the accused persons are charge-sheeted for the ofence punishable under Section 8 (c), 20 (B) and 29 of the NDPS Act for which the trial is going on. 8. When it was disclosed by Imtiyaz and other accused of offender of B Division Police Station, Bharuch that the contraband has been supplied by Munir as well as the present petitioner Kishorbhai Kalesto Nayak, they immediately informed the concerned Police Station having jurisdiction over the area wherefrom is alleged that the contraband was supplied, a raid was carried out on the same day at around 23.55 hours on 16.4.2016. When the raid was carried out, the petitioner as well as Munir were found on the spot dealing with the contraband articles and in possession of the huge quantity of contraband. Ultimately, chargesheet has been filed against the accused for the offences punishable under Sections 20 (c), 22 and 29 of the NDPS Act. The allegations against the petitioner in both the offences are different. In one case, it is alleged that he is the supplier. However, in the present offence, he has been found with the contraband having commercial quantity as defined under the NDPS Act. Hence, in my opinion, both the offences are distinct offences and, therefore, the submission made by Ms. Shah, learned advocate appearing for the petitioner that it is a same offence cannot be accepted. Discovery of contraband cannot be treated as discovery from first offence since in the first offence, the contraband which was alleged to have been sold by the petitioner was already found and seized by the Investigating Agency. 9. Shah, learned advocate appearing for the petitioner that it is a same offence cannot be accepted. Discovery of contraband cannot be treated as discovery from first offence since in the first offence, the contraband which was alleged to have been sold by the petitioner was already found and seized by the Investigating Agency. 9. In the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 , the Hon'ble Supreme Court while dealing with Article 20 of the Constitution of India, has observed that in two distinct offences, there may have some overlapping factors, but for the distinct offence, a person can be prosecuted and convicted and, therefore, there would be no bar under Article 20 (2) of the Constitution of India. In the present case, there may be some overlapping factors and facts but as stated, both the offences are distinct offences and hence, the prayers prayed for by the petitioner cannot be accepted. 10. The Hon'ble Supreme Court in the case of State of Jharkhand through SP, Central Bureau of Investigation v. Lalu Prasad Yadav @ Lalu Prasad has while deciding a case known as Fodder's Scam, held that though there may be similar type of accusations against the person, however when the offence has taken place at different places at different period, such person is required to be dealt with separately. 11. As far as the decision relied upon by Ms. Shah in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation and another is concerned, the prosecution had accepted that the second murder had taken place in furtherance of the first offence and in continuation of same conspiracy and, therefore, the facts of the said case are not applicable to the present case. 12. In view of the above facts and circumstances of the case and the ratio laid down by the Hon'ble Supreme Court in the above referred decisions, I am of the opinion that the present application is meritless and hence, the same is dismissed. Notice is hereby discharged.