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2025 DIGILAW 337 (TS)

Challapally Bhargav Sai v. State of Telangana

2025-04-16

ANIL KUMAR JUKANTI

body2025
ORDER : 1. This Criminal Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (for short ‘ BNSS ’) by petitioner/accused No.4 to quash the proceedings against him in SC.No.72 of 2024 on the file of I Additional District Judge Magistrate at LB Nagar. 2. Heard Sri M. Srinivasa Rao, learned counsel for petitioner and Sri Surepalli Prashanth, learned Assistant Public Prosecutor for the respondent-State. Perused the material on record. 3. On the basis of complaint, FIR was registered bearing No.1261 of 2023, dated 30.12.2023 under Sections 8(c) read with 20 (b) (ii) (B) and 27 of N.D.P.S. Act, 1985 r/w 34 of IPC. 4. Respondent is the complainant. Charge sheet is filed in the Court of Metropolitan Sessions Judge, Cyberabad at L.B. Nagar, dated 08.04.2024. Petitioner in the present Criminal Petition is accused No.4. 5. Gist of the complaint is that accused Nos.1 to 4 are students and it is alleged they are in the habit of consumption of Ganja. That accused Nos.1 to 3 went to Lambasingi on 23.12.2023, while returning, they purchased Ganja at Sileru, for consumption. For the purchase of Ganja at Sileru, they needed money and asked accused No.4 to sell the laptop of accused No.2 and forward the amount of Rs.10,000/-. It is alleged that 2 Kgs of Ganja was purchased, kept at accused No.2’s room and accused Nos.1 to 3 consumed Ganja. 6. That on 29.12.2023, accused Nos.1 and 2 were at accused No.2’s room, later, accused Nos.3 and 4 came and consumed ganja and slept there. In the complaint, it is alleged that on 30.12.2023 at 05.00 A.M on receipt of credible information that some persons were selling ganja at P & T Colony, Dilsukhnagar, and on obtaining permission from Superior Officers by securing panchas reached the place. Police found four persons moving in suspicious manner and they tried to run away on seeing the police personnel. That at 6.00 A.M at St. Donalds School, Saroornagar Village and Mandal, Ranga Reddy District, police personnel apprehended accused Nos.1 to 4 and on search found polyethene packets containing ganja. A notice under Section 50 of NDPS Act was issued and Inspector came to the spot at 6.30 A.M. and at 6.45 A.M. conducted panchanama and recorded the confessional statement. That accused Nos.1 to 4 revealed that they purchased 1900 grams of ganja. A notice under Section 50 of NDPS Act was issued and Inspector came to the spot at 6.30 A.M. and at 6.45 A.M. conducted panchanama and recorded the confessional statement. That accused Nos.1 to 4 revealed that they purchased 1900 grams of ganja. Ganja packets weighing 1900 grams, three phones were seized, in the presence of panchas and a Gazetted Officer at 06.30 hours. 7. Charge sheet is filed, contents are as follows: “From the facts and evidence collected during the course of investigation it is revealed that the accused Al to A4 are students. Al to A4 all had habit of consuming ganja. Al to A4 used to consume Ganja which was bought by A1 to A3. On 23.12.2023 Al to A3 went to tour to Lambasingi on two bikes. While they are returning to Hyderabad in the mid they know that Ganja will be sold at Sileru & New Year also coming. Al said to A2 & that they will purchase Ganja at Sileru and consume in Hyderabad and also can sell to customers who needed. A1 called to A4 and informed that they want money and suggested to sell the Laptop of A2 and send them money for which A4 did the same and sent 10000 rs to them. Later Al to A3 purchased 2 kg of Ganja and came to Hyderabad and kept it at A2's Room. Later A1 to A3 consumed some ganja from that. On 29.12.2023 When Al and A2 were present at A2's room. A3 & A4 came there and all consumed some ganja and slept there. On 30.12.2023 Police team headed by LW-01 went to H.No.11-9/1, Beside St Donalds School, P&T Colony, Saroornagar Village & Mandal, Ranga Reddy District and found A1 to A4 and took them into custody. LW-01 Immediately informed the matter to Superior officers and served a notice U/s 50 of NDPS Act 1985 to them under acknowledgement and send a requisition to LW-06 to act as Gazetted officer and he came to the spot at 0630 hours. LW-01 recorded the confessional statement cum seizure panchanama of the apprehended persons A1 to A4. Wherein they revealed that got habituated to ganja through their friends. Further they revealed that Al to A3 decided to sell ganja which would fetch them huge money easily. LW-01 recorded the confessional statement cum seizure panchanama of the apprehended persons A1 to A4. Wherein they revealed that got habituated to ganja through their friends. Further they revealed that Al to A3 decided to sell ganja which would fetch them huge money easily. Later LW-01 seized one Contraband packet weighing 1900 grams and Oppo A78 Smart Phone from the possession of A1, LW-01 seized one Samsung M15 Smart Phone from the possession of A2, One Realme Smartphone from the possession of A3 and pasted panch chits signed by LW-09 & 10. In the presence of LW-06 under cover of confessional cum seizure panchanama.” 8. Perused the entire record. It is observed from record that on 29.12.2023 accused Nos.1 to 4 consumed ganja and slept in the room of accused No.2. That on 30.12.2023, accused Nos.1 to 4 were taken into custody and ganja weighing 1900 grams was seized while trying to sell ganja. A reading of the contents of the FIR discloses that accused Nos.1 to 4 were trying to sell ganja and that under suspicious circumstances, they were taken into custody. Though, it is stated in the charge sheet that accused Nos.1 to 4 were addicted to ganja and they consumed ganja on 29.12.2023, no record is placed before this Court, whether any test is conducted as required under Section 53 of Code of Criminal Procedure. 9. Provisions of Code of Criminal Procedure is applicable to warrants, arrests, searches and seizures. On a reading of Section 51 of the NDPS Act with Section 53 of Code of Criminal Procedure, it can be inferred that an officer can carry out or send for examination any person suspected to be under the influence of drugs (narcotic substance). No such procedure is followed to bring home the offence that accused No.4 consumed ganja, at the time of taking him into custody or later. 10. When a query was put whether the accused was sent to medical examination to ascertain the fact if he is under the influence of any Narcotic Substance Drug, it is stated by the learned Senior counsel that though accused Nos.1 to 4 were referred to area hospital at Vanasthalipuram for medical checkup, only fitness certificates and Covid test(s) were conducted. 11. Accused No.4 is charged with Section 27 of NDPS Act. 12. Section 27 of the NDPS act is as follows: “27. 11. Accused No.4 is charged with Section 27 of NDPS Act. 12. Section 27 of the NDPS act is as follows: “27. Punishment for consumption of any narcotic drug or psychotropic substance:- Whoever, consumes any narcotic drug or psychotropic substance shall be punishable: (a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; (b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.” 13. It is contended that, for an offence to be made out under Section 27 of the NDPS Act against petitioner/accused No.4, he should be tested positive, demonstrating/establishing that he is under the influence of ganja. That respondent-State is unable to establish/demonstrate, whether such a test was conducted. That accused No.4 cannot be said to be under the influence of any narcotic substance drug without such a test being conducted. It is also submitted that allegations revolve around the sale of ganja by all the accused. 14. If the contents of the complaint and contents of the FIR are taken on face value, it is apparent that FIR is registered on the ground that accused Nos.1 to 4 were trying to sell 1900 grams of ganja. It is not even the allegation of State that any amount of ganja was recovered from accused No.4. The entire incident is said to be over by 6.30 A.M., but panchanama is done at 06.45 A.M. discrepancy is noted. While registering cases against students under NDPS Act, it is the duty of the Officers of state to be cautious and careful, as the career of students is involved. 15. Learned counsel for respondent-State has relied upon paragraph Nos.28 and 30 of the judgment of Hon’ble High Court of Punjab and Haryana in Bupender Singh vs. State of Haryana , CRA-D No. 1218/2022 dated 12.07.2024 . “28. 15. Learned counsel for respondent-State has relied upon paragraph Nos.28 and 30 of the judgment of Hon’ble High Court of Punjab and Haryana in Bupender Singh vs. State of Haryana , CRA-D No. 1218/2022 dated 12.07.2024 . “28. The salient underpinning(s) of the above extracted provision, is the necessity of the accused being charged for an offence punishable under Section 27 of the NDPS Act. The further statutory requirement for enforcing the hereinabove statutory provision, is embedded in the factum, that such a person who faces a charge for an offence punishable under Section 27 of the NDPS Act or faces a charge vis-a-vis offences involving small quantity of narcotic drugs or psychotropic substances, thus is required to be volunteering to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognized by the Government or a local authority. Furthermore, in terms of the thereunder proviso, yet the said granted immunity from prosecution becomes amenable to become withdrawn if the addict does not undergo the complete treatment for de- addiction. Moreover, for determining whether as a matter of fact, the person concerned is a consumer, thus the drug detection kit, is required to be employed upon him. Therefore, there is an imperative requirement that before he volunteers to undergo treatment at the de- addiction centre concerned, the apposite satisfaction is but be drawn either by the Public Prosecutor concerned, thus through the voluntary employment of the drug detection kit upon him at the centre concerned, or satisfaction being drawn by the learned trial Judge concerned, thus through his making a direction, upon the nodal officer concerned, supervising the de-addiction centre concerned, to with the consent of the consumer, employ upon him the drug detection kit, so that therebys on his being declared to be a drug addict, thus resultantly a direction becoming passed for his undertaking the de-addiction treatment, on completion whereof statutory immunity for prosecuting a consumer/addict may become granted. Direction No.VIII 30. In addition, the mere preparation of the said standing operating procedure(s) is not sufficient to completely render workable the said provision, provision whereof but for the reasons (supra) is engrafted in the apposite statute with the insightful legislative wisdom hence for curtailing the demand side. Direction No.VIII 30. In addition, the mere preparation of the said standing operating procedure(s) is not sufficient to completely render workable the said provision, provision whereof but for the reasons (supra) is engrafted in the apposite statute with the insightful legislative wisdom hence for curtailing the demand side. Therefore, directions are also required to be passed, upon the learned trial Judges concerned, within the territorial jurisdiction of this Court, to the extent that upon theirs becoming seized with a report under Section 173 Cr.P.C or the corresponding thereto provisions carried in Section 193 Bharatiya Nyaya Sanhita, 2023 to, before proceeding to draw a charge qua an offence punishable under Section 27 of the NDPS Act, to elicit from the accused concerned, his voluntariness to employ vis-a-vis him the drug detection kit. Subsequently, upon his being affirmatively declared to be a drug addict, thereupon, the learned trial Judge concerned, may proceed to after seeking the further apposite consent of the accused, send him for detoxification treatment at the de-addiction centre concerned. In sequel, the learned trial Judge concerned, on an application in that regard becoming preferred by the Public Prosecutor concerned, may proceed to grant immunity in terms of Section 64-A of the NDPS Act, thus for therebys, making the said provision fully awakened, but the making of an order qua the said withdrawal from prosecution, thus at the stage (supra), rather may be deferred until the drug addict is certified by the Rehabilitation Centre concerned, to have completed the detoxification treatment which he underwent at the centre concerned.” 16. Reliance placed by the Assistant Public Prosecutor on the judgment is not applicable in the facts of the case. In the present case, accused No.4/petitioner is charged under Section 27 of the NDPS Act. Ingredients of Section 27 of the NDPS Act are not made out. Primary grievance in the complaint is that accused Nos.1 to 4 were trying to sell drugs (ganja), it is not the case that, they were under the influence of ganja at the time when they were taken into custody. But, as per charge sheet, accused No.4 is found to have committed offence punishable under Section 27 of NDPS Act. Once the complaint speaks otherwise, it defies the logic of this Court, as to how Section 27 of the NDPS Act can be said to be made out against accused No.4. 17. But, as per charge sheet, accused No.4 is found to have committed offence punishable under Section 27 of NDPS Act. Once the complaint speaks otherwise, it defies the logic of this Court, as to how Section 27 of the NDPS Act can be said to be made out against accused No.4. 17. As extracted supra, to make out an offence under Section 27 of NDPS Act, consumption of narcotic drug or psychotropic substance is to be made out. It is settled law that to bring home the contents of Section 27 of NDPS Act against petitioner, the individual must be tested positive for any of the banned substance under NDPS Act. It is the responsibility of the State to establish that petitioner/accused is under the influence of any of the banned substance. In the absence of any documentary evidence/test, an adverse inference can be drawn. 18. In the present facts and circumstances of the case, it is not even averred that petitioner/accused No.4 was tested for such banned substance as required. 19. It defies the logic of this Court as to how respondent authorities concluded that Section 27 of NDPS Act is applicable to petitioner/accused No.4 when no test is conducted which is a basic requirement to bring home the offence. It is pertinent to take note that petitioner along with 3 others was taken into custody in the early hours of 6:30 a.m., and allegations against other accused are that they committed offence(s) punishable Sections 8(c) read with 20 (b) (ii) (B) and 27 of NDPS Act, 1985 r/w 34 of IPC. It is further more surprising that it is reflected in the charge sheet that all the accused have consumed the banned substance on the previous night. If the statement reflected in the charge sheet is to be taken as true, then Section 27 of NDPS Act will be made applicable to all the accused not just to petitioner/accused No.4. 20. NDPS Act, 1985 is a special enactment, any offence committed under the act, if proven, the person(s) is/are punishable with a harsh punishment. It is the duty of officers/authorities of state to see that the provisions of Act are made out against person(s) only when the alleged offence falls within the purview of the provisions of NDPS Act. 20. NDPS Act, 1985 is a special enactment, any offence committed under the act, if proven, the person(s) is/are punishable with a harsh punishment. It is the duty of officers/authorities of state to see that the provisions of Act are made out against person(s) only when the alleged offence falls within the purview of the provisions of NDPS Act. Any negligence on the authorities/officers of state in enforcing the provisions of the NDPS Act is fatal, especially when having youngsters/students such negligence would impact their entire career and psychological trauma would haunt for life. Needless to state, that the authorities/officers of state shall not indulge in such witch hunting. 21. For reasons aforesaid, this Court is of the considered opinion that Section 27 of NDPS Act is not made out against petitioner/accused No.4 and proceeding further would undoubtedly amount to abuse of process of Court/law. Proceedings against petitioner/accused No.4 in SC.No.72 of 2024 on the file of I Additional District Judge Magistrate at L.B. Nagar are liable to be quashed and are hereby quashed. 22. For aforesaid reasons, Criminal petition stands allowed. Miscellaneous applications pending, if any, shall stand closed.