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2020 DIGILAW 295 (MP)

Abhishek Chaurasiya v. State Of M. P.

2020-02-25

VIRENDER SINGH

body2020
JUDGMENT 1. This petition is filed by Abhishek Chaurasiya in crime No.153/2017 registered at Police Station GRP District Ujjain for the offence under Section 8/20, 29, 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity here-in-after referred to as the NDPS Act), claiming that he has been impleaded in the array of the accused only on the basis of disclosure statement of co-accused Shoaib S/o Abdul Nazir from whose possession police has recovered 30 Kg of Cannabis 'Ganja'. 2. As per prosecution case on 21.08.2017, ASI Pramod Jamodkar of GRP, Ujjain received a credible information that Shoib is about to go from back side road of parcel office of railway towards the city to deliver cannabis (ganja) to some smuggler. Cannabis is kept in a white colour bag of fertilizer, which he is carrying. Observing the due process, the police caught Shoib and recovered 30 kg cannabis from his possession. On interrogation, he revealed that one Naresh had called him from Howrah that he is sending a parcel from Howrah to Ujjain. He asked him to deliver the parcel to the petitioner Abhishek. The petitioner was taken into custody. On interrogation, he also admitted the same fact. 3. It is submitted by the learned counsel for the petitioner that the petitioner is not concerned with the crime. Neither any contraband is recovered from his possession nor there is any other evidence to connect him with the alleged crime. He was neither named in the information received by the police nor was found present on the spot at the time of the recovery of contraband from the co-accused. He was not aware of any direction of co-accused Naresh, as claimed by the prosecution, that the contraband was meant to deliver to him. He has no nexus with Naresh or any other co-accused person. The police has foisted false case on him. 4. Parity with co-accused Ravindra whose charge has been quashed by this Court vide order dated 30.05.2019 passed in CRR No. 3370/2018 has been claimed by the petitioner. 5. It is further submitted that disclosure/confessional statement of co-accused or the petitioner himself is not admissible in the eyes of law. There is no other evidence collected by the police to connect him with the alleged crime committed by someone else. Therefore, the FIR registered and all proceedings taken pursuant thereto be dropped against him. 6. 5. It is further submitted that disclosure/confessional statement of co-accused or the petitioner himself is not admissible in the eyes of law. There is no other evidence collected by the police to connect him with the alleged crime committed by someone else. Therefore, the FIR registered and all proceedings taken pursuant thereto be dropped against him. 6. The learned counsel for the petitioner has referred Pullukari Kotaya Vs. Emperor AIR 1947 PC 67 , 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 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). 7. 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 No.4425/2019 Dated 11th March 2019, have also been referred by the counsel for the petitioner. 8. The facts that no contraband was recovered from the possession of the petitioner has not been controverted by the prosecution. 9. State of M.P. passed in MCRC 5452/2017 dated 26 November 2018, Mohamad Wasim Mewati Vs. State of M.P. passed in MCRC No.4425/2019 Dated 11th March 2019, have also been referred by the counsel for the petitioner. 8. The facts that no contraband was recovered from the possession of the petitioner has not been controverted by the prosecution. 9. But objection of the learned Public Prosecutor is that the petitioner is a convict. Earlier in SST 16/2006 (crime No. 546/2006 of PS Mahakal, Ujjain) he was convicted under Section 8/20(b) of the NDPS act and had been awarded 3 years RI. Besides, Crime No.887/04 u/s 294,506,323,427/34 of IPC, Cr. No. 546/06 u/s 8/20 NDPS Act, Cr. No. 05/06 u/s 341,294,506 IPC and Cr. No. 323,294,506 at PS Mahakal Ujjain and Crime No.556/16 u/s 8/20 NDPS Act PS Hiranagar, Ujjain have been registered against him. 10. It is further submitted that in the case a group of persons belonging to different parts of the country was involved in the crime. As per their modus operandi one person books the parcel from Howrah by railway parcel service for ujjain and other person used to collect it at Ujjain. On both the occasion with the fake identity. In the present case, main accused Shoaib was working in the parcel office of the railway as labour. He received delivery of consignment containing contraband by producing receipt of consignee Abhishek Chaurasiya, the petitioner. This receipt was given to him by the petitioner. The police is trying to seize this receipt, which will reveal the truth. 11. It is pointed out by the learned Public Prosecutor that the trial Court has framed the charge against the petitioner on 31.05.2018, but instead challenging the order of framing charge, he has filed the petition for quashing the FIR on 10.07.2019. 12. It is also averred that the trial has proceed further. The Trial Court has recorded statements of the witnesses, therefore, at the advance stage of the trial, it would not be proper to quash the proceedings. 13. In the last, the learned Public Prosecutor contended that there is no parity of the case of the petitioner with the case of the co-accused Ravindra Chaudhary as nothing incriminating was found against him but in the case of the present petitioner, the police is trying to search links to connect the petitioner with the crime. 13. In the last, the learned Public Prosecutor contended that there is no parity of the case of the petitioner with the case of the co-accused Ravindra Chaudhary as nothing incriminating was found against him but in the case of the present petitioner, the police is trying to search links to connect the petitioner with the crime. Quashing the proceeding will hamper the further investigation and also the case of the prosecution. Therefore, it is prayed, that the petition be dismissed. 14. I have heard the parties at length and have perused the copy of the charge-sheet and have also gone through the case diary, copy of which is available with the learned Public Prosecutor. 15. 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. 16. 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. 17. After going through the entire record, keeping in view the nature, complexity, gravity, modus operandi, manner and method of the crime, submissions made by the learned Public Prosecutor, particularly in respect of seizure of parcel delivery receipt and criminal record and previous conviction of the petitioner, in the considered opinion of this Court, this does appear appropriate to allow the petition at this stage. 18. Resultantly, the petition is dismissed.