Mr. David Johnson vs State of Goa

Prithviraj K. Chavan,J

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for petitioner and the respondents.

Learned Public Prosecutor waives notice on behalf of the respondents.

By this petiton, the petitioner has invoked jurisidction of this Court under Article 226 of the Constitution of India read with Section 482 of Code of

Criminal Procedure, 1973 (“Code†for short) seeking quashing of an FIR No.11/2017 registered with the Anti Narcotic Cell Police Station,

Goa.

Brief facts, necessary for disposal of the petition can be summaried thus:-

The petitioner is a British National who is currently lodged in Judicial Custody at Colvale Central Jail, Goa. The respondent no.2 who is a Police Sub-

Inspector of Anti Narcotic Cell Police Station, Panaji, pursuant to an information received on 21.3.2017, conducted a raid between 12.10 hours to

18.00 hours at house no.608/2, St. Anthony Praisa Waddo, Anjuna Bardez Goa and arrested the accused Mohammad Yusuf s/o Bashir resident

of St. Anthony Praisa Waddo, Anjuna Bardez Goa for illegal possession of 75 gms of Methamphetamine and 10 LSD cubes weighing 40

grams alongwith the petitioner, resident of Anjuna Bardez Goa for being in illegal possession of the 17 gms of MDMA and 32 ecstasy tablets weighing

13 gms all approximately worth ₹5,86,000/- alongwith other articles.

A crime bearing No.9/2017 under Sections 22(c) and 29 of NDPS Act came to be registered with Anti Narcotic Cell Police Station. The

petitioner alongwith other accused was arrested and remanded to Police Custody.

While the petitioner was in the police custody on 23.3.2017, it is contended that pursuant to an information given by the petitioner himself

regarding concealment of some more narcotic drugs at the rented house which is owned by one Mr. Victor D'Souza at Gavwadi, Anjuna, Bardez

Goa, the respondent no.2 conducted another raid by obtaining necessary permissions from his superiors and found the petitioner in illegal possession of

20 gms of MDMA, 40 gms of DMT, 30 gms of LSD liquid, a passport of United Kingdom of Great Britan and Northern Ireland bearing

No.111922853 issued in the name of the petitioner alongwith cash of ₹3,000/- and 45 pounds.Â

All the contrabands found in possession of the petitioner were duly attached under the panchanama which was marked Exh. I, Exh. II, Exh. III and

Exh. IV.Â

The impugned FIR, therefore, came to be registered by the respondent no.2 against the petitioner on 24.3.2017 bearing no.11/2017 for the offence

punishable under Section 22(c) of the NDPS Act, 1985.

The narcotic substances were sent for chemical analysis to the Central Forensic Science Laboratory, Hyderabad on 20.7.2017. After

investigation, the respondent no.2 laid a chargesheet in the Court of Sessions Judge Panaji on 16.9.2017. The repsondent no.2 has also filed a

chargesheet in connection with the first FIR bearing No.9/2017 in the same Court.Â

Being aggrieved with the registration of two FIRs and consequently filling of two chargesheets by the respondent no.2, which according to the

petitioner is nothing but a continuation of the investigation carried out in the FIR No.9/2012, present petition has been filed.

We have heard Mr. Narendra Jain, learned Counsel for the Petitioner and Mr. S. R. Rivankar, learned Public Prosecutor for the respondents.Â

With the assistance of the learned Counsel for the Petitioner, we have gone through the impugned FIR as well as FIR (in crime no.9/2017) and the

chargesheets filed against the petitioner by the respondent no.2.

It is argued by the learned Counsel for the petitioner that pursuant to the registration of FIR No. 9/2017, investigation has been carried out and

during the same investigation the impugned FIR came to be registered against the petitioner which is nothing but an extension of facts of the first FIR

and, therefore, subsequent FIR No.11/2017 needs to be quashed and set aside. It is contended that the first informant in the crime no.9/2017 is also

the Investigating Officer in both the FIRs' which indicate malafides on the part of the Investigating Agency in getting the impugned FIR registered for

the same alleged offence. The learned Counsel, therefore, contends that it is nothing but unnecesary multiplication of the proceedings, thereby

burdening not only the Investigating Agency but also the Court, since the impugned FIR and the Chargesheet is a part and parcel of the first FIR, the

impugend FIR is required to be quashed.

The learned Counsel has therefore, pressed into service judgments of the Hon'ble Supreme Court in following cases:-

i. Babubhai and others Versus State of Gujarat and ors, reported in (2010)12 SCC 254.

ii. Naresh Kakkar Vs. The State, 1994 SCC online Del 554.

On the other hand, the learned Public Prosecutor submits that the subsequent offence being a distinct one, the registration of the second FIR is

justified. He drew our attention to Section 22 of the NDPS Act by stating that if any one found either manufacturing, possessing, selling, purchasing,

transporting, importing inter-State, exporting inter-State or using any psychotropic substance in contravention of the Act, can be punished. As

such, it is the contention of Mr. Rivankar, that since different contrabands were found in the possession of the petitioner, at different point of time, the

impugned FIR and the chargesheet is legally justified. It is also the contention of Mr. Rivankar that it was a different occurrence altogether giving

rise to one more cognizable offence and it was not committed in the course of same transaction.

The Hon'ble Supreme Court in the case of Babubhai (supra) held in paragraphs 17 to 20 thus:-

Thus, in view of the above, the law on the subjectemerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is

the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion

and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be,

and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police

Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need

not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the

facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.

In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out

whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of

the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version

in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the

same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be

conducted.

The instant case is required to be examined inthe light of the aforesaid settled legal propositions. If the two FIRs are read together, it becomes

clear that the incident started in the morning as per both the FIRs. C.R. No.I154/2008, lodged by Mr. M.N. Pandya, Sub Inspector of Police stated

that he reached the place of occurrence after receiving the information from the police station and found that mob had already dispersed. The case of

the prosecution is that when the police reached the place of occurrence of the first incident, the mob had already dispersed, could not be correct for

the reason that some of the witnesses have stated that the clash was going on when the police arrived and police resorted to force to disperse the

mob. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals. In the first incident as per the said FIR the

place of occurrence had been village Dhedhal near the pond. In the pond, the damaged tractor, motor cycle and chhakda were found. Mr. M.N.

Pandya called the extra police force and went inside the village. He found 2000-4000 persons and witnessed a free fight between them. The Koli

Patels had surrounded some of the houses of the Bharwads. Some persons had been locked inside their houses and they had also put their houses at

fire. The superior officers also came there. Police has used force todisperse the mob in the said incident and there were heavy casualties and there

was loss of lives also. If we examine minutely the FIR in C.R. No.I-155/2008, the incident also occurred near the pond in the village Dhedhal. The

damaged tractor, motor cycle and chhakda were there in the pond. One person Ajitbhai Prahladbhai was killed in the incident. Babubhai Popatbhai

Koli Patel also got injured. While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in close proximity

of time, therefore, they are two parts of the same transaction. More so, the death of Ajitbhai Prahladbhai has been mentioned in both the FIRs. From

the report for deletion of Section 302 IPC, it is apparent that it is not the case of the Investigating Officer that the death of Ajitbhai Prahladbhai had

not occurred during the course of the incident in connection with which C.R. No.I-154 of 2008 came to be registered.

It is also evident that houses of the Bharwads were inside the village in contiguous areas and the offence had spread over the entire area as is

evident from the panchnama of the scene of offence drawn in C.R. No.I-155 of 2008 as well as from the contents of the said FIR. Same situation

regarding the place of occurrence appears from the panchnama of the scene of incident in C.R. No. I-154/2008. Panchnama of the scene of incident

of C.R. No.I-154/2008 includes the scene of occurrence of C.R. No.I155/2008 which makes it clear that both the FIRs pertain to the two crimes

committed in the same transaction. The scene of offence panchnamas establish clearly that the incidents in both the cases could not be distinct and

independent of each other. In fact, it is nobody's case that incident relating to CR No.I-155/08 occurred at Dhedhal Chokdi (Cross-Roads).

In view of the above, we are of the consideredopinion that the High Court reached the correct conclusion and second FIR C.R. I-155/2008 was

liable to be quashed.

Tainted Investigation.

A perusal of the complaint lodged by the respondent no.2 on behalf of the State reveals that he registered the crime no.9/2017 under Sections

22(c) and 29 of the NDPS, Act, 1985 with the Anti Narcotic Cell Police Station against the petitioner and one more accused who were found in

possession of contraband drugs. It further reveals that during the custodial interrogation qua the petitioner on 23.3.2017 at 16.30 hours, he disclosed

that he had concealed narcotic drugs in a locker of his cupboard in his rented house owned by one Shri Victor D'Souza at Gavwadi, Anjuna, Bardez,

Goa and that he had concealed the key to the lock of the house and cupboard locker under the stone on the left side of his house. The information

was reduced into writing and subsequently the respondent no.2, after obtaining authorisation/permission from the DYSP Anti Narcotic Cell, conducted

a raid in the presence of panchas and found the contraband as stated herein above.

In view of the ratio laid down by the Supreme Court in case of Babubhai (supra) what is required to be found out as to whether both the

FIRs'  relates to the same occurrence or are in regard to incidents which are two or more parts of the same transaction. If answer is

affirmative, the second FIR is liable to be quashed. However, where the version in second FIR is different and they are in respect of two different

incidents/crimes then the second FIR is permissible and investigation in both FIRs has to be conducted. It is clear from the complaint as well as from

the record that during the custodial interrogation in crime no.9/2017 the petitioner is alleged to have disclosed the concealment of narcotic drugs in his

rented house which is owned by one Victor D'Souza at Gavwadi, Anjuna, Bardez Goa which necessarily means that the subsequent offence is nothing

but the occurence giving rise to more than one cognizable offence committed in the course of same transaction and therefore, the subsequent FIR is

liable to be quashed.

It is not the case of the prosecution that pursuant to an information from a third source or from some independent person it had conducted

subsequent raid. Moreover, contrabands in both cases were found from the possession of the petitioner as per Section 22 of the NDPS Act in the

course of same transaction.  It is neither the case of the prosecution that the petitioner was selling, purchasing, transporting, importing interState

contrabands. As such, in view of the peculiar fact of this case the ratio in case of Babhubai (supra) will have to be made applicable.

After examining the facts and circumstances of the case giving rise to both the FIRs and after applying the test of sameness, it is clear that both

the FIRs relating to the incidents which are two in numbers but arising out of same transaction.

By no stretch of imagination it can be said to be an altogether distinct and different offence committed at different point of time as what transpired is

that the petitioner was already in possession of another set of contraband at his rented house which he alleged to have disclosed during custodial

interrogation within a day or two of his arrest.

It is pertinent to note that the respondent no.2 himselfis the first informant in FIR No.9/2017 and is the Investigating Officer in both the FIRs.

The recovery of contraband at the behest of the Petitioner consequent to his disclosure statement was effected by the respondent no.2 and,Â

therefore, it was a part of the same transaction and hence, the registration of impugned FIR was not legal which ought not to have been registered.Â

The Hon'ble Apex Court in the case of T. T. Antony Versus State of Kerala & ors. 2001 Cril. L. J. 3329Â observed in paragraphs 18 and 19 as

follows:-

“18.An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term

is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable

offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation

which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section

173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police

station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the

station house diary and this is implied in Section 154 of Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information

first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report F.I.R.

postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable

offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other

cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such

information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the

same cannot be in conformity with the scheme of the Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 326

I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302

I.P.C. need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us

consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is

killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H

- the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C., as the case may be. It is of course permissible for

the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected

to be the accused.

The scheme of the Cr. P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of

Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of

investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his

report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further

information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and

where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further

reports; this is the import of subsection (8) of Section 173 Cr.P.C.â€​

Thus, it can be seen that the impugned FIR no.11/2017 registered with the Anti Narcotic Cell Police Station Goa relates to an incident which is

a part of the same transaction and, therefore, it needs to be quashed and set aside.

In view of the aforesaid settled principles of law as well as the ratio laid down by the Supreme Court in the case of Babubhai (supra), the

impugned FIRÂ no.11/2017 is hereby quashed and set aside which is registered with the Anti Narcotic Cell Police Station, Panaji. However, it is

made clear that in view of Section 220(1) of the Code, the learned Special Judge is directed to club both the chargesheets together and the petitioner is

directed to face a single composite trial. Needless to say that we have not gone into the merits of the case.

Petition is partly allowed. FIR No.11/2017 registered with Anti Narcotic Cell Police Station, Goa is quashed and set aside in the light of the

above discussion.