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2022 DIGILAW 156 (TS)

S. Surya Prakash v. State of Telangana

2022-03-08

K.LAKSHMAN

body2022
ORDER : This Writ Petition is filed seeking to declare the action of respondent Nos.3 and 4 in taking into custody and detaining the petitioners without warrant, conducting search in the premises of “Prakash Book Stationery” (herein after called ‘the shop’) owned by the 1st petitioner, without due authorization from any Court and registering a case in Cr.No.57 of 2021 against the petitioners herein/accused for the offences under Sections 276 and 336 of IPC, on fabricated complaint as illegal and consequently to quash the proceedings in the above said crime against the petitioners. The petitioners herein are accused in the above said crime 2. Heard Sri T.Bala Mohan Reddy, learned counsel for the petitioners and Sri S.Ram Mohan, leaned Asst. Govt. Pleader for Home and perused the record. 3. The allegations against the petitioners herein are that they are selling ‘Kores Eraz-ex whitener liquid’ 15ml bottles to the children below 18 years at their shop and the same is illegal and endanger to the human life. In the writ affidavit, there is specific allegation that on 29.01.2021, some personnel from Task Force (West zone) visited the premises of the petitioners and enquired about whitener. At that time, the 1st petitioner was not there in the shop and therefore, the personnel intimated the employees to call the 1st petitioner to the shop. After that, when the 1st petitioner came to the shop, they enquired about the whitener including storage and sale etc. They have also behaved rudely and abused the 2nd petitioner. They have seized the shop on 29.01.2021 itself. They have also took the 1st petitioner into custody at 4.45 P.M. to 5.00P.M. on his arrival. Both the petitioners were taken to the DCP Task Force office at Secunderabad. When their Advocate reached Task Force Office, he was prevented from entering into the premises and not permitted him to meet either the officials or the petitioners. 4. In the writ affidavit, there are specific allegations against Rajesh, Sub Inspector of Police, and Gattumallu, Circle Inspector of Police, the Task Force officials and in charge of the case against the petitioners herein. It is further alleged that the petitioners were permitted to leave the premises of DCP Task Force Office, at 8.30 P.M. directing to report the next day. i.e. on 30.01.2021 at 10.30 A.M. The Police have again illegally detained the petitioners herein. It is further alleged that the petitioners were permitted to leave the premises of DCP Task Force Office, at 8.30 P.M. directing to report the next day. i.e. on 30.01.2021 at 10.30 A.M. The Police have again illegally detained the petitioners herein. There are specific allegations in paragraph Nos.4 and 5 of the writ affidavit. The petitioners herein have also filed photographs in proof of the same. They have also filed affidavit of Sri P.Srinivas Advocate, in proof of the same. 5. In view of the said serious allegations and also considering the nature of allegations made against the petitioners herein in the complaint dated 31.01.2021, and also considering the fact that there were no proceedings issued by the officials prohibiting either manufacture or sale of whitener, this Court vide order dated 11.02.2021 directed the 2nd respondent to cause enquiry into the specific allegations made by the petitioners in the writ affidavit and submit report along with the counter. The 2nd respondent was further directed to file counter specifically adverting to various contentions and grounds raised by the petitioners. 6. In compliance of the said order, the report dated 01.06.2021 of the Joint Commissioner, the Police HFAC, DCP (West Zone), Hyderabad was filed. Thereafter, the 2nd respondent herein-the Commissioner of Police, filed counter, affidavit and also additional counter affidavit, wherein it is mentioned that it has been complained to the Director General of Police, Hyderabad stating that there is rampant misuse of whitener in many parts of West Zone particularly in Asifnagar. It is also available in South Zone and East Zone. Therefore, the respondent No.2, vide memo dated 28.01.2021, directed respective officers to launch special drive in the next 15 days and ensure that maximum seizure of whitener is done in their area. The Special Branch SOC and Task Force will also launch special drive after identifying the bulk dealers and progress made in that regard should be mentioned in the teleconference. 7. In compliance of the said directions, Panjagutta Police have launched special drive for identifying the bulk dealers of whitener and while patrolling in the limits of Panjagutta Police Station, on credible information, apprehended the petitioners on 31.01.2021 who are selling ‘Kores Eraz-ex whitener 15 ML liquid’ to the children below 18 years at their shop Nos.3 and 4, MCH Market, Ameerpet, Hyderabad which endangers human life. Accordingly ‘Korex Eraz-ex whitener liquid’ 15 ML bottles were seized from their possession in the presence of mediators and also drafted search proceedings under Section 165 of Cr.P.C. in the presence of panchas, as there was no time to obtain search warrant from the Court due to the reason that if delay occurs it may cause disappearance of the petitioners as well as material evidence. A case in Cr.No.57 of 2021 dated 31.01.2021 was registered against the petitioners on the report of the Police for the offences under Section 276 and 336 of IPC. Investigation was taken by the 4th respondent. 8. In the report, it is mentioned that the Enquiry Officer/Joint Commissioner of Police, HFAC, DCP (West Zone) Hyderabad had gone through the CD file in the FIR, which reveals that the Investigating Officer has conducted investigation in impartial and sincere manner and there is no foul play. Similar contentions were made in the counter affidavit and additional counter affidavit filed by the 2nd respondent. 9. Perusal of the said report, counter affidavit and additional counter affidavit of the respondent No.2 would reveal that the Enquiry Officer has not conducted an Enquiry in compliance of the order dated 11.02.2021 passed by this Court. There is no mention about the recording of statements of any witnesses collecting CCTV footages etc. the Enquiry Officer has conducted enquiry and submitted report as an eye wash formality. There is no consideration of allegations made by the petitioners in paragraph Nos. 4 and 5 of the writ affidavit and the order dated 11.02.2021 passed by this court. Therefore, the said enquiry report is only as an eye wash formality. 10. Coming to the allegations leveled against the petitioners herein in the complaint dated 31.01.2021, the petitioners are selling whitener liquid 50 ML bottles to the children below 18 years at their shop which endanger their human life. 11. In the report dated 01.06.2021, the counter affidavit and additional counter affidavit, it is mentioned that the respondents have searched the premises of the petitioners i.e. shop on 31.01.2021, seized Kores Eraz-ex 15 ML bottles from the possession of the petitioners. Thus, respondents have not followed the procedure for conducting search and also seizing the said whitener bottles. 12. 11. In the report dated 01.06.2021, the counter affidavit and additional counter affidavit, it is mentioned that the respondents have searched the premises of the petitioners i.e. shop on 31.01.2021, seized Kores Eraz-ex 15 ML bottles from the possession of the petitioners. Thus, respondents have not followed the procedure for conducting search and also seizing the said whitener bottles. 12. It is also relevant to note that in the report, counter affidavit and additional counter affidavit, there is no mention with regard to issuance of any prohibitory orders or instructions prohibiting either manufacture or sale of whitener. Therefore, it is not a prohibited item. The only allegation is that the petitioners are selling the said whitener to the children below 18 years. There is no material to show that the petitioners are selling the said whitener to the children below 18 years. The respondents-Police have searched the shop of the petitioners and seized the said material illegally without following due procedure laid down under law and trying to cover up the same. 13. It is relevant to note that on the basis of a newspaper publication in Andhra Jyothi Telugu Daily, dated 30.12.2006 showing that the children of old city of Hyderabad are getting addicted to whitener an ink-eraser, which is freely available in stationery shops and prone to severe health problems and the poor parents of these children are unable to meet the expenditure for rehabilitation of their wards, this Court has taken the same vide W.P.No.2027 of 2007 on file. The Division Bench of this Court issued notices to the Principal Secretary, Women Development and Child Welfare and Disable Welfare Department, Hyderabad including Kores (India) Limited, Worli, Mumbai which is the manufacturer of the whitener under the brand name of ‘Eroz-ex’. Considering several facts therein, this Court in the order dated 28.03.2008 held that there are several products that are hazardous to health from petrol to Nail Polish, which are being commonly used and it is not at all possible to prohibit the production or use of the products that are hazardous to health, if not properly used. The Court thought of suggesting to the appropriate authorities to issue instructions to the concerned not to sell the products to the persons below 18 years of age. Even that would be difficult as it is only a stationery product. The Court thought of suggesting to the appropriate authorities to issue instructions to the concerned not to sell the products to the persons below 18 years of age. Even that would be difficult as it is only a stationery product. Therefore, the Division Bench has directed the manufacturers to sell it by affixing a prominent label in Red letters indicating ‘danger’ on the container, so that it can have some impact on the easy availability and misuse of the product. 14. Thus, there is no prohibition either to manufacture or sale of whitener. Without there being any prohibition of either manufacture or sale of whitener, the Commissioner of Police, Hyderabad cannot issue memo dated 28.08.2021 directing the officials to launch special drive for next 15 days to ensure that maximum seizure of whitener is done in their area. The said instructions are illegal. 15. The Police have to conduct search and seize the products by following the procedure laid down under the provisions of Cr.P.C. If the product contains any hazardous product, then they have to take action against the manufacturers and sellers in accordance with law. Instead of doing so, on the instructions of the Commissioner of Police, the respondents authorities have conducted special drive, searched the premises of the petitioner and seized the whitener bottles. The entire procedure followed by the respondents is arbitrary and illegal and also in violation of the procedure laid down under Cr.P.C. 16. As stated above, on the report submitted by the 5th respondent, dated 31.01.2021, the 3rd respondent had registered the above said Cr.No.57 of 2021 against the petitioners for the offences under Sections 276 and 336 of IPC. The record would reveal that the only allegation against the petitioners herein that they are selling whitener liquid 15 ml bottles, to the children below 18 years at their shop which is illegal and endanger to human life. 17. The record would reveal that the only allegation against the petitioners herein that they are selling whitener liquid 15 ml bottles, to the children below 18 years at their shop which is illegal and endanger to human life. 17. In view of the above allegation, it is relevant to extract Sections 276 and 336 of IPC which are as follows :- Section 276 :- Sale of drug as a different drug or preparation.— Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 336 :- Act endangering life or personal safety of others.— Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both. The whitener is neither a drug nor a product used in medical preparation and there is no allegation that the petitioners herein have used the whitener for medical preparation. Therefore, the contents of the complaint lacks ingredients of Sections 276 of IPC. In the complaint, dated 31.01.2021, there is no mention that the petitioners rashly or negligently acted to endanger human life or personal safety of others. Thus, the contents of the complaint dated 31.01.2021 lacks ingredients of Section 336 of IPC also. 18. As discussed supra, there is no prohibition of either manufacture or sale of whitener. Thus, the conduct of search and seizure of whitener bottles by the respondents from the premises of the petitioners is in utter violation of the procedure laid down under Cr.P.C. Surprisingly in the report dated 01.06.2021, counter affidavit and additional counter affidavit of the 2nd respondent, it is mentioned that as there was no time to obtain search warrant from the Court due to the reason that if delay occurs it may cause disappearance of the petitioners as well as material evidence. When there is no prohibition either to manufacture or sale of whitener, the question of non-availability of time to obtain search warrant from the Court and disappearance of the petitioners as well as the material evidence does not arise. Thus, action of issuing instructions, dated 28.08.2021 by the Commissioner of Police, Hyderabad, and the act of conducting search and seizure of the whitener bottles from the 1st petitioner’s premises by the respondents is in utter violation of the procedure laid down under Cr.P.C. 19. Perusal of the record would further reveal that the Investigating Officer has recorded the statements of the Police Constables as L.Ws.1 and 2, Sub Inspector of Police as L.W.3. He has not recorded statements of any independent witnesses. Thus, the entire action of respondents, more particularly respondent Nos.3 and 4 taking into custody and detaining the petitioners without warrants and conducting search in the premises of the petitioners’ shop is illegal and contrary to the procedure laid down under law. Though the petitioners have made specific allegations against Sri Rajesh Sub Inspector of Police, and Sri Gattumallu, Circle Inspector of Police, the petitioners have not made them as parties. 20. In view of the said discussion, this Writ Petition is allowed. The proceedings in Cr.No.57 of 2021 of Panjagutta Police Station, Hyderabad, against the petitioners herein/ accused are quashed. Further, the respondents are warned not to repeat such acts in future. Otherwise, the same would be viewed seriously. Miscellaneous Petitions, if any, pending, shall also stand closed.