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Telangana High Court · body

2025 DIGILAW 1101 (TS)

Mohd. Abdul Ayaz v. State of Telangana

2025-09-25

ANIL KUMAR JUKANTI

body2025
ORDER: ANIL KUMAR JUKANTI, J. This Criminal Petition is filed under Section 5 28 of the Bharatiya Nagarik Suraksha Sanhita (for short ‘ BNS S ’) by petitioners/accused Nos.13 and 14 to quash the proceedings against them in FIR No.217 of 2025 on the file of Moinabad Police Station, Cyberabad Commissionerate. The offences alleged against petitioners are under Sections 143 (3), 144(2), 223, 292 r/w 49 of BNS , Sections 3 , 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘PIT Act’), Section 8 (c) r/w 20(b)(ii)(A), 25, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short ‘NDPS Act’) and Section 3 4(a) TELANGANA EXCISE ACT , 1968. 2. Heard Mr. S.Venugopal, learned counsel for petitioners and Mr. E.Ganesh, learned Assistant Public Prosecutor for the respondent – State. Perused the material on record. 3. Complaint is by Sub-Inspector (SI) of Police, on receiving credible information at 01:30 AM that a Mujra party was involving use of ganja and hukah was taking place at Holiday Home Farmhouse in the outskirts of Yathbarpalli Village, search proceedings were taken after obtaining permission from ACP Chevella. Complaint is lodged by the SI of Police to the Inspector of Police, Moinabad. 21 material objects were seized during the search, including Ganja, 62 grams and certain other materials i.e., liquor bottles, etc. In all 18 individuals were named. Petitioners are arrayed as accused Nos.13 and 14. On a perusal of the record, it is observed that the entire operation of search, seizure and arrest, were undertaken by the Sub Inspector of Police and FIR came to be registered on 09.04.2025 under Sections 143 (3), 144(2), 223, 292 r/w 49 of BNS , Sections 3 , 4 and 5 of PIT Act, Section 8 (c) r/w 20(b)(ii)(A), 25, 29 of NDPS Act and Section 3 4(a) TELANGANA EXCISE ACT . The contents of the FIR reflected the contents of the complaint and commission of offences. 4. It is submitted by learned counsel for petitioners/accused Nos.13 and 14 submitted that accused Nos.13 and 14 along with others were produced before Principal Junior Civil Judge-cum-XI Additional Judicial Magistrate of First Class by the Police personnel on 10.04.2025 at 00:30 hours in Crime No.217 of 2025. 4. It is submitted by learned counsel for petitioners/accused Nos.13 and 14 submitted that accused Nos.13 and 14 along with others were produced before Principal Junior Civil Judge-cum-XI Additional Judicial Magistrate of First Class by the Police personnel on 10.04.2025 at 00:30 hours in Crime No.217 of 2025. Learned Judge after recording the entire facts and upon entries made in the general diary and the remand report case diary has held that the arrest of accused persons is not in accordance with law, the remand was rejected and the accused persons were released immediately. 5. Heard learned counsels, perused the record and considered the submissions. 6. Section 13 of the PIT Act, is as follows: “ 13. Special police officer and advisory body.— (1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government, for dealing with offences under this Act in that area. (2) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally: Provided that no such power shall be conferred on,— (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer. (3) For the efficient discharge of his functions in relation to offences under this Act,— (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. (4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, a point such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.” 7. As per Section 13 of the PIT Act, officer not below the rank of Inspector of Police has to give effect to the provisions of PIT Act. 8. In the present case, the SI of Police has undertaken the acts of entering the place after seeking permission from ACP Chevella, searched the farm house on 09.04.2025, seized the objects on the basis of search warrant from ACP and on the whole made a list of 18 individuals with their details including names, addresses, phone numbers and occupations on the ground that they were playing loud music and they found 11 men with 5 semi-naked women dancing in a vulgar manner. It is also observed from the complaint that Police personnel searched and confirmed that they had no illegal items. SI of Police searched the bed room and found certain dried green leaves wrapped in newsprint emitting a strong odor described as Ganja. Police on questioning the women, disclosed that they were being paid Rs.2,000/- per night. Basing on these facts, FIR came to be registered under various Sections. 9. Section 50 of the NDPS is as follows: “ 50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 10. As per Section 50 of the NDPS Act, a gazetted officer should be present or it is in the presence of gazette officer, seizure should be effected and the same has not been followed. 11. A perusal of the provisions of NDPS Act and PIT Act, make it abundantly clear that under both the acts the requirement is that an officer of the rank of Inspector is the authorized to give to effect to the provisions of PIT Act and Section 50 of NDPS Act. In the present case, it is the SI of Police obtaining permission from the ACP Chevella, has donned the role of Inspector of Police and has performed the acts of search, seizure and even remanding petitioners/accused (in all 18 in number) before the concerned Magistrate. The Magistrate rejected the remand on the ground that arrest of the accused persons is not in accordance with law. Though, the Magistrate considered the Hon’ble Apex Court judgment in his remand rejection order, the aspect of jurisdiction was not gone into. The Magistrate rejected the remand on the ground that arrest of the accused persons is not in accordance with law. Though, the Magistrate considered the Hon’ble Apex Court judgment in his remand rejection order, the aspect of jurisdiction was not gone into. The order of the Magistrate is as follows: “Thus, the available material on record for this court to pass appropriate order at this stage is RCD, General Diary, Crime Detail Form, Confession cum Seizure panchanama and medical certificates of the accused persons. The LD. Advocate representing all the accused except A10 submits that the arrest was made on 08.04.2025 between 0830 PM to 0930 PM. He submits that the CCTV and DVR is not produced by the police, it is further submitted that there was DVR at the farm house also and even the same is not filed before the court. He contends that as per the RCD, the accused persons allegedly booked the farm house. However, the booking register or the DVR is not filed before the court. His contention is that he himself went on media and reported that the arrest was made on 08.04.2025. He seeks that an advocate commissioner be appointed to go PS and to verify the CCTV cameras as when he was there the same were functioning. He also submits that Sec. 143(3) BNS does not apply to all the accused persons and therefore the remand shall be turned. The Ld. Adv for A10 submits that the CCTV cameras as were ordered by the Hon’ble Prl. Junior Civil Judge, RJNR and they are not produced before the Court. The Ld. Adv has filed four photographs claiming that the multiple CCTV cameras are available at PS. He further contend that as per the Judgment of Hon'ble Supreme Court in Paramvir Singh Saini Vs. Baljit Singh and other, the responsibility is of the SHO that the cameras shall be functional. He also relied upon the order of Hon'ble High Court for the State of Punjab in CRM-M-46240-2022. He contends that an adverse inference shall drawn in favor of accused persons for violation of judicial orders by the I.O. The second contention of the Ld. Adv is that the accused persons were arrested and produced before Hon'ble Magistrate after expiry of 24 hours. He contends that an adverse inference shall drawn in favor of accused persons for violation of judicial orders by the I.O. The second contention of the Ld. Adv is that the accused persons were arrested and produced before Hon'ble Magistrate after expiry of 24 hours. In support of the same he has relied upon the order of Hon'ble High Court for the state of Telangana, in Crl.Revision Case No. 781/2024 and Cr.P.No. 13565/2024, he submits that as per the said Judgments the formal arrest has to be considered and the custody commences from the time of formal arrest. The Ld. Adv also refers to observation of Hon'ble High Court that the petitioner therein is released only due to the procedural flaw on part of the prosecuting agency. The third point the Ld. Adv has raised is that the grounds of arrest is not informed to accused and entire case diary is silent upon the same. He contends that the notice as stipulated U/Sec. 47 of BNSS is not duly complied and hence the arrest is not as per the procedure established by law as it does not comply with the mandatory requirement of the grounds of arrest to be informed to the accused. For determining the above contentions, it is important to refer to the available material at this stage as stated above. For determining the above contentions, it is important to refer to the available material at this stage as stated above. Upon perusal of the RCD, the timeline of the events is as under: Time and Date as per RCD Events Time and Date as per General Diary 09.04.2025 at 0130 AM Police received credible information 09.04.2025 at 0130 AM Intimation to Superior officer U/Sec. 42(2) NDPS Act and made GD Entry and Written Report 09.04.2025 at 0140 AM (PC3563 went to Chevella to accord permission for search warrant from ACP Chevella Search Warrant permission taken from ACP Chevella - 09.04.2025 at 0230 AM Informed to Clues Team to come to PS - 09.04.2025 at 0330 AM Clues Team and Panch witnesses reached Scene of offence 09.04.2025 at 0335 AM (started from PS to scene of offence) 09.04.2025 at 0530 AM Confession cum seizure panchanama was conducted at Holiday Home Farm House - 09.04.2025 at 1000 AM Confession cum Seizure Panchanama was completed 09.04.2025 at 1130 AM Complaint was lodged at PS 09.04.2025 at 1130 AM 10.04.2025 at 0030 AM The accused were produced before Hon’ble Magistrate Upon perusal of the above entries made in General diary (GD) and RCD it is seen that there is corresponding and coherent entries. The GD is a statutory register maintained at every PS in the ordinary course of official duty. The entry is made therein are presumed to have been recorded contemporaneously and in accordance with prescribed procedure. Further, the Ld. Advocates have submitted that the CCTV footage were not produced before this court despite the order. However, the requisition states that the buildings were under construction and CCTV footage were damaged. It is clear by the citation filed by the Ld. Adv that it is the duty of the SHO to ensure that all the cameras are functional. However, at this stage, the said document/electronic record is not produced before this court for consideration. At this stage of the proceedings, there is no dispute raised regarding the authenticity of the correctness of said entries made in General diary. Based on the material available before this court, and in light of the statutory document, it is not desirable to except the contention of the Ld. Adv for accused persons at this stage. The next contention is that the grounds of the arrest were not informed to accused persons. Based on the material available before this court, and in light of the statutory document, it is not desirable to except the contention of the Ld. Adv for accused persons at this stage. The next contention is that the grounds of the arrest were not informed to accused persons. The law mandates that the person arrested has a right to have a relative or a friend or any other person named by him to be informed of his arrest. The accused/Al states that his arrest information was given to Aman Ali Khan who as per I.O. is his relative. The accused/A3 states that his arrest information was given to Niloufar who is his friend. The accused/A5 states that his arrest information was given to Neha Hussain Khan who is his Friend. The accused/A6 states that his arrest information was given to Niloufar who is her sister. The accused/A7 states that his arrest information was given to Budumuri Chaithnya Kumari. The I.O. and the accused are unable to determine the relationship. The accused/A8 states that his arrest information was given to Mohammad Hasham who is the sister of A7 and has, not relationship with A8. The accused/A9 states that his arrest information was given to Mohammad Hasham Ali. The IO. and the accused are unable to determine or state the relationship, accused/A10 states that his arrest information was given to Mohammad Hasham Ali, and the I.O. and accused are unable to determine or state the relationship. The accused A11 states that his arrest information was given to Mohammad Hasham Ali. The IO. and the accused are unable to determine or state the relationship. The accused/A12 states that his arrest information was given to Gowlikar Ramesh who is his Brother. The accused/A13 states that his arrest information was given to Shaik Ameer who is his friend. The accused/A14 states that his arrest information was given to Gulam Mushtaq who is his friend. The accused/A15 States that his arrest information was given to Syed Ismail Ali. The I.O. and the accused are unable to determine or state the relationship. The accused/A16 states that his arrest information was given to Md. Hussain who is his brother. The accused/A17 states that his arrest information was given to Mohad Haneef who is his Brother. The above shows that there is no proper compliance of Sec.48 BNSS . The I.O. and the accused are unable to determine or state the relationship. The accused/A16 states that his arrest information was given to Md. Hussain who is his brother. The accused/A17 states that his arrest information was given to Mohad Haneef who is his Brother. The above shows that there is no proper compliance of Sec.48 BNSS . Upon perusal of the RCD it is seen that Sec. 47 and 48 BNSS notices were issued to the accused persons and their concerned family/friends. The core contention is with respect to the notice U/Sec. 47 BNSS . A Perusal of the notices issued to the accused persons show that only the crime number, the sections, date and time are mentioned in the notice. The notice is silent upon any grounds of arrest. In this regard, the judgment passed by the Hon'ble Supreme Court in Vihaan Kumar Vs. State of Haryana, 2025 INSC 162 becomes pertinent. As per the Judgment the word "communicate" (which is also referred Sec. 47 BNSS ) is a strong word. It means that sufficient knowledge of the basic facts constituting the "Grounds" should be imparted effectively and fully to the detenu in writing in a language in which he understands. The grounds of arrest and the intimation of arrest are two distinct independent requirements each submits a separate purpose. While intimation of arrest, pertains to informing a nominated person or relative of arrested individual about the facts and case of arrest, article 22(1) of The Constitution of India and Sec. 48 BNSS . In the present case, the notice U/Sec. 48 and 49 BNSS are similar in articulation. Furthermore, the entire RCD is also silent upon the reason why the arrest is made and the grounds on basis of which the arrest is made. The arrest memo is also silent upon the grounds of arrest. Further, the GD entry is also silent upon any such intimation given to the accused persons. The copy of such grounds are also not furnished. The RCD does not state that orally the grounds of such arrest are read over and explained to them. The above stated citation also concludes by stating that when the accused alleges non compliance of the requirement of article 22(1) the burden is always be on the I.O. to comply with such requirement. The RCD does not state that orally the grounds of such arrest are read over and explained to them. The above stated citation also concludes by stating that when the accused alleges non compliance of the requirement of article 22(1) the burden is always be on the I.O. to comply with such requirement. Thus, the requirement under article 22 (1) and Sec. 47 BNSs is not duly complied in its spirit.” 12. It is trite law that the findings in remand cannot have influence in a petition under Section 528 of BNSS or 482 of Cr.P.C. Quash petition has to be dealt on its own merits. The act of arrest, (as recorded by the Magistrate) is not in accordance with law, coupled with this Court’s view that SI of Police lacked jurisdiction under both the PIT Act and NDPS Act. 13. This Court is of the opinion that proceedings in Crime No.217 of 2025 on the file of Moinabad Police Station, Cyberabad Commissionerate, qua petitioners/accused Nos.13 and 14 are liable to be quashed and are accordingly quashed. 14. For the aforesaid reasons, this Criminal Petition is allowed. Miscellaneous applications pending, if any, shall stand closed.