Amar Nath Gupta and Another vs State of U.P.

Poonam Srivastava, J.—Heard learned Counsel for the applicants and learned A.G.A. for the State.

This application u/s 482, Code of Criminal Procedure has been filed for quashing the entire proceeding in Special State v. Raj Bir and Amar Nath Gupta Crime Case No. 32 of 1998, pending in the Court of Special Judge, N.D.P.S. Act, Etawah. The applicants are accused in the case registered at Case Crime No. 176 of 1992 u/s 8/20, N.D.P.S. Act, Police Station Jaswant Nagar, Etawah. The first information report was registered on 20.6.1992 at 22.40 hours and the occurrence is alleged to have taken place on 20.6.1992 at 21:30 hours. The recovery shown from possession of the applicants is of "bhang". After completion of the investigation, police submitted final report No. 7 of 1993 but the learned Magistrate refused to accept the final report and took cognizance, non-bailable warrants were issued against the applicants vide order dated 14.5.1998, which is also under challenge. The applicants have submitted that after the first information report was lodged, the Sub-Inspector proceeded with the investigation after converting the case u/s 60 Excise Act. Subsequently, on the direction of the Circle Officer, offence was investigated under the provisions of N.D.P.S. Act as well as u/s 60 Excise Act. The applicants have annexed parcha of the case diary along with final report No. 7 of 1993 dated 18.4.1993 as Annexures-4 and 4A to the affidavit. The order dated 14.5.1998 has been quoted in paragraph No. 9 of the affidavit whereby non-bailable warrants were issued at the first instance.

Counsel for the applicants has argued that admitted position is only "bhang" was recovered from possession of the applicants, which is not covered under the N.D.P.S. Act. In the circumstances, entire proceeding stands vitiated in law and is liable to be quashed. Counter-affidavit has been filed by the State. It is admitted in paragraph No. 8 of the counter-affidavit that though the first information report was registered u/s 8/20, N.D.P.S. Act but the Court had remanded the accused to jail custody u/s 60, Excise Act. However, it is admitted that "bhang" which was recovered from possession of the applicants is not covered under the N.D.P.S. Act and the applicants are salesmen of the shop belonging to one Babu Ram and Rashmi Kumar, who have a valid licence for sale of "bhang". Counsel for the applicants has cited a decision of this Court in Samid v. State of U.P. 1995 ACR 73, this decision is in a criminal appeal decided by this Court, where it was held that "bhang" is not covered under the Narcotics and Psychotropic drugs. In the circumstances, possession of ''bhang'' does not constitute an offence within the meaning of provisions of Section 8/20 N.D.P.S. Act. In the said case, it was held that possession of "bhang" is not an offence in view of the admitted position, sentence of the accused u/s 8/20 N.D.P.S. Act was set aside. After going through the entire record and hearing the respective counsel, it is evident that assuming each and every words levelled by the prosecution, accepted to be correct, even then there is not even a remote chance of conviction of the applicants under the N.D.P.S. Act. Admitted position is that the applicants were salesmen in the shop owned by two persons, who were running the "bhang" shop on the basis of a valid licence.

The Apex Court has held in a catena of decisions that where the charge levelled against the applicants if accepted as it is, chances of conviction are absolutely bleak then the Court in exercise of inherent powers can quash the proceedings. In the case of R.P. Kapur Vs. The State of Punjab, , three categories were carved out. Second category is:

(II) Where the allegations in the first information report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises ; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not?

In the instant case, the allegations in the first information report is that the applicants were in possession of narcotics substance and the substance alleged by the prosecution is "bhang", which is admittedly not covered under the N.D.P.S. Act. In the circumstances, there is no chance of conviction of the applicants by the Special Judge N.D.P.S. Act, Etawah, for the offence alleged against them and in case proceedings are allowed to continue, it is nothing short of abuse of the process of the Court. Similar view has been envisaged in a number of other cases State of West Bengal and Others Vs. Swapan Kumar Guha and Others, and State of Haryana and Ors. v. Chaudhary Bhajan Lal (IIXXX) 1991 ACC 111 (SC). The Apex Court has considered all the cases decided earlier and carved out seven categories in the case of Chaudhary Bhajan Lal (supra). The very first category is:

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.

Thus, it is absolutely clear that the second category is identical to the one detailed in R. P. Kapoor''s case. The case at hand is admittedly covered under the categories carved out by the Apex Court detailed above. In the circumstances, it is apparent that the proceedings against the applicants, if allowed to continue will only amount to harassment to the applicants and an abuse of the process of the Court. In the circumstances, I come to the conclusion that there is no reason for continuation of the proceedings against the applicants. Thus, in view of what has been discussed above and with a view to meet the ends of justice the charge-sheet is quashed and the order dated 14.5.1998, issuing non-bailable warrants against the applicants is set aside. This application is accordingly, allowed.