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2020 DIGILAW 291 (MP)

Kailash v. State Of M. P.

2020-02-25

VIRENDER SINGH

body2020
JUDGMENT 1. This petition is filed by petitioner Kailash in crime No.230/2019 registered at police Station Neemuch Cantt District Neemuch for the offence under Section 8/18 read with Section 29 of the NDPS Act, claiming that he has been impleaded in the array of accused on the basis of disclosure statement of co-accused Papparam from whose possession, the police have recovered 3 kg of illegal opium. 2. Fact of the case in brief are that on 8.4.2019, the police received a secret information from informant that co-accused Papparam is having in his possession 3 Kg of Opium and is sleeping in the public garden near showroom square and will soon go to Rajsthan. On the basis of said information, the police reached in the garden, accosted Papparam and inquired him about the bag he was carrying. Observing the due procedure, the bag was searched. 3 Kgs of illegal opium was found in the bag. The police seized the opium. On interrogation, Papparam disclosed that he had purchased the illegal opium from the petitioner. 3. It is submitted by the learned counsel for the petitioner that the petitioner is not concerned with the crime. No contraband was recovered from his possession. He was neither named in the information received by the police nor was found present on the spot at the time of the recovery from the coaccused. He had never sold any opium to Papparam. The police has foisted false case on him. 4. It is further submitted that disclosure/confessional statement of co-accused or the petitioner himself is not admissible in the evidence against the petitioner. There is no other evidence collected by the police to connect him with the alleged crime committed by someone else. Therefore, FIR registered and all proceedings taken pursuant thereto be dropped against him. 5. To bolster his contention, the learned counsel for the petitioner has referred Harichara Kurmi and Jogia Hajam reported in AIR 1964 SC 1184 , Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657 : 2005 SCC (Cri) 597 , State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari reported in (2013) 12 SCC 17 : 2013 SCC OnLine SC 230 (page 36), Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724 , Asar Mohammad and Ors. Vs. State of U.P. reported in AIR 2018 SC 5264 , Kusal Toppo Vs. State of Rajasthan reported in (2011) 11 SCC 724 , Asar Mohammad and Ors. Vs. State of U.P. reported in AIR 2018 SC 5264 , Kusal Toppo Vs. State of Jharkhand reported in 2018 SCC OnLine SC 1563 , Valiyaveetil Ashraf v. State, S.H.O. Kottakkal Police Station reported in 1992 SCC OnLine Ker 441 : 1994 Cri LJ 555 (page 561) and Pappu v. State of Madhya Pradesh reported in 2000 SCC OnLine MP 442 : 2001 Cri LJ 875 (Page 876) . 6. Further judgements of the MP High Court rendered in Anant Kumar Vs. State of MP reported in 1993 Cr.L.J. 1499 , Sharif Khan Vs. State of M.P. 1997(II) M.P.W.N page 254 N 173 , Raghu Thakur Vs. State of M.P. reported in 2012 (4) MPHT 116 , Suresh Upadhayay Vs. State of M.P . passed in MCRC 837/2014 dated 5th March 2014, Rajveer Singh Vs. State of M.P. reported in 2015 (1) MPHT 265 , Raju @ Rajesh Chawla Vs. State of M.P. order dated 06.10.2015 rendered in MCRC No. 3579/2015, Gajendra Singh Bhadoria Vs. State of M.P. reported in MANU/MP/0976/ 2016 , Faijal & others Vs. State of M.P. passed in MCRC 10904/ 2017 dated 19th February 2018, Dashrath Vs. State of M.P. passed in MCRC 5452/2017 dated 26 November 2018, Mohamad Wasim Mewati Vs. State of M.P. passed in MCRC 4425/2019 Dated 11th March 2019, have also been referred by the counsel for the petitioner. 7. The facts that the neither any illegal contraband was recovered from the petitioner nor was he present on the spot at the time of alleged recovery of the contraband have not been controverted by the prosecution. 8. But the objection of the learned Public Prosecutor is that during investigation the police have obtained call details of the mobile numbers 83493-46651, 62616-05423, 99260-10537, 75818-11684 of the petitioner and mobile number 74268-05329 of the co-accused Papparam, which shows that at the relevant point of time, the petitioner was in constant touch of the coaccused, which is prima facie sufficient to show his involvement in the crime. This evidence is not hit by the provisions of Section 25-27 of the Evidence Act and is admissible against the petitioner. This evidence has to be appreciated by the trial Court after giving the petitioner opportunity of hearing during the trial. This evidence is not hit by the provisions of Section 25-27 of the Evidence Act and is admissible against the petitioner. This evidence has to be appreciated by the trial Court after giving the petitioner opportunity of hearing during the trial. In the backdrop of presumption under Section 114 of the Evidence Act and under Section 35 and 54 of the NDPS Act available against the petitioner, at this primary stage, it cannot be said that there is not prima facie case exits against him. 9. The power under Section 482 is extraordinary in nature and it is settled proposition of law that this power has to be exercised sparingly and with great care and caution only to give effect to an order under the Code or to prevent abuse of process of the Court or to otherwise secure the ends of justice and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-use of power. While considering the petition under Section 482 of Cr.P.C., the Courts have to be strictly confined to the scope and ambit of the provision. In quashing the proceeding, the High Court has to see whether the allegations made in the complaint, if proved, make out a prima facie offence. In such situation only, the High Court should entertain the petition under Section 482, otherwise must relegate the applicant to face the trial. At this stage sifting or weighing of the evidence is neither permitted nor expected. 10. The Honble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (1992 AIR SCW 237 : AIR 1992 SC 604 ) has explained the circumstances under which such power could be and should be exercised. it was explained that such power could be exercised 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. It is observed in para 102 as under: "102. it was explained that such power could be exercised 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. It is observed in para 102 as under: "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 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 guidelines or rigid formula 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 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. (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. (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. (6) 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. (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." While exercising Scope for interference 11. The facts narrated by the learned public prosecutor have not been challenged by the petitioner. 12. After going through the entire record and keeping in view the facts mentioned above, particularly call details of the mobile numbers of the petitioner and of the co-accused, showing live touch of the petitioner with the co-accused at the time of commission of the crime by him, I find it more appropriate to let the trial Court examined the matter on merits. 13. Therefore, the petition is dismissed.