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2019 DIGILAW 121 (ORI)

Rukumani Behera v. State of Odisha

2019-02-13

A.K.MISHRA

body2019
JUDGMENT : A.K. Mishra, J. 1. Heard learned counsel for the petitioner and learned Addl. Standing Counsel. 2. Prayer has been made to quash the order dated 02.04.2018 passed by the learned Sessions Judge-cum-Special Judge, Cuttack in taking cognizance under Section 25 of NDPS Act in connection with 2(a) CC No. 08 of 2018 and issuing N.B.W. against the petitioner. 3. Case of the petitioner is that on 26.01.2018 near Khannagar at about 5.30 A.M. the Inspector of Excise along with other staff detained one Mero Maestro Scooter bearing Registration No. OD-02-AK-6847 and searched the rider Litu Behera @ Bhalu duly and recovered 40 grams of brown sugar. Present petitioner is the sister of Litu Behera and owner of the vehicle. After completion of investigation without any basis, the prosecution report has been filed implicating her under Section 25 of NDPS Act and the continuance of the proceeding would be an abuse of the proceeding. 4. Learned counsel for the petitioner submits that only because the petitioner is found to be the owner of the vehicle, she cannot be prosecuted unless her knowledge to use said vehicle for the purpose of committing offence is available and that being the omission in the investigating material, cognizance order in respect of the petitioner should be quashed. 5. Learned Addl. Standing Counsel repels the above contention stating that not only the petitioner was the owner of the vehicle conveyance from which the recovery of brown sugar was made but also material is sufficiently available to show that the petitioner had permitted her brother-accused to transport the brown sugar from Bhubaneswar to Cuttack. It is also submitted that the petitioner-accused having absconded, the Court was compelled to take coercive steps for which it cannot be said that the petitioner has bona fide contention against the investigating material. 6. From the conspectus of the above contention and materials on record, it is noteworthy that the order taking cognizance and to issue process against the accused Litu Behera @ Bhalu for commission of offence under Section 21(b) of the NDPS Act is not under challenge. 7. In this proceeding under section 482 Cr.P.C. 1973 the said cognizance order dated 2.4.2018 has been impugned. The order taking cognizance can be interfered with by exercising the inherent jurisdiction as per the principle prescribed by the Supreme Court in the case of State of Haryana and Others vs. Ch. 7. In this proceeding under section 482 Cr.P.C. 1973 the said cognizance order dated 2.4.2018 has been impugned. The order taking cognizance can be interfered with by exercising the inherent jurisdiction as per the principle prescribed by the Supreme Court in the case of State of Haryana and Others vs. Ch. Bhajan Lal and Others, 1992 Supp (1) SCC 335, wherein Hon'ble Apex Court has held as follows: "8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under section 482 of the Code of Criminal Procedure, 1973 the following categories of cases are given by way of illustration wherein such power could be exercised either to 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 guide-17 myriad kinds of cases wherein such power should be exercised: (a) 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. (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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. (c) where the uncontroverted 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. (d) 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. (e) 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. (e) 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. (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (g) 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." 8. There is no dispute that the present petitioner is the sister of co-accused Litu Behera @ Bhalu and the registered owner of the carrier i.e. Hero Maestro Scooter bearing Registration No. OD-02-AK-6847. It is also fact that the accused-petitioner had absconded throughout the investigation. Prima facie the ingredients of offence under Section 25 of the NDPS Act, 1985 are well made out and the tutelary intention of the petitioner to satisfy "knowingly permits" is a question of fact to be considered during trial. 9. Cognizance order having not suffered any infirmity as prescribed by the Hon'ble Supreme Court in aforesaid Bhajanlal case, any interference is uncalled for. 10. Hence, I am not inclined to exercise inherent jurisdiction under section 482 Cr.P.C. 1973 to quash the order dated 2.4.2018 taking cognizance under Section 25 of NDPS Act against the petitioner. 11. In view of the above, the Crl. MC stands dismissed.