Sankar Sarkar vs State Of West Bengal

Madhumati Mitra, J

This is an application under Section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner Sankar Sarkar praying for quashing of the proceedings of N.D.P.S. Case No. 20 of 2018 arising out of Bhaktinagar Police Station Case No. 418 of 2018 dated 15th June, 2018 under Sections 22 (c)/23 (c)/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 pending before the learned Special Judge, N.D.P.S. Act, Jalpaiguri.

The case of the petitioner in brief is that the petitioner is the proprietor of Advance Health Care having its office at 47, G.T. Road, Bally (Nimtala), Howrah.

On 15.06.2018 a suo moto First Information Report was lodged withBhaktinagar Police Station by Officer‐in‐Charge alleging that on 15.06.2018 at about 16.25 hours, a secret information was received to the effect that contraband medicines had been stored in the godown namely, Inland World Logistic Private Limited situated at Sevoke Road, Siliguri. On the basis of the said secret information, police personnel conducted raid in the said godown and seized 70 cartons containing of 8400 bottles of Relaxcof Cough Syrup kept inside of said 70 cartons.

After completion of investigation, charge‐sheet was submitted before the learned Special Judge for commission of alleged offences punishable under Sections 22 (c)/23 (c)/25 of the Narcotic Drugs and Psychotropic Substances Act against four accused persons including present petitioner namely, Sankar Sarkar.

In the charge‐sheet, the present petitioner has been projected as accused No. 4. The learned Special Judge on 11.12.2018 issued Warrant of Arrest against the petitioner.

From the charge‐sheet, it transpired that accused Rajib Kumar Das @ Raju had bought the seized cough syrup from Advance Health Care (Private Lmited) in the name of Sabita Medico but his trade licence was invalid and also he had sold his godown premises to the accused Sankar Sarkar (the present petitioner/proprietor of Advance Health Care Private Limited). It was alleged that the petitioner had knowledge about the invalid licence of said Rajib Kumar Das @ Raju and there is specific allegation against the present petitioner that he had supplied medicines illegally to said Rajib Kumar Das @ Raju with knowledge that he had no valid licence.

The petitioner has come forward before this Court under the provision of Section 482 of the Code of Criminal Procedure praying for quashing of the criminal proceedings against him under the different provisions of Narcotic Drugs and Psychotropic Substances Act, pending before the learned Special Judge, Jalpaiguri.

It is the specific contention of the petitioner that he is no way connected with commission of the alleged offence and he has been falsely implicated in the alleged crime. The petitioner has claimed himself to be a distributor of various medicine companies and he has specifically claimed that he had purchased the medicines in question from Biogenetic Drugs Private Limited, a company within the meaning of Companies Act, 2013 having its office at District - Solan, Himachal Pradesh. It is the specific contention of the petitioner that he has been falsely implicated in the instant case knowing fully well by the Investigating Agency that he is a bona fide distributor having valid licence to deal with the medicine mentioned in the FIR and charge‐sheet.

The Learned Advocate appearing for the petitioner in support of his contention has placed his reliance on several decisions. The decisions cited by the Learned Advocate for the petitioner are as under:‐

1) Powder Metallurgy and New Materials (ARCI) & Ors Vs. Nimra Cerglass Technics Pvt. Ltd. & Anr. Reported in 2016 SAR (Criminal)1.

2) State of Maharashtra through CBI Vs. Vikram Anantrai Doshi & Ors. Reported in 2015 SAR (Criminal) 43.

3) Monoj Kumar Sharma & Ors. Vs. State of Chhatishgarh & Anr. Reported in 2016 SAR (Criminal) 1029.

4) Rakhi Mishra Vs. State of Bihar & Ors. Reported in 2017 SAR (Criminal) 1045.

5) Union of India & Another Vs. Sanjeev v. Deshpande reported in 2014 CRI.L.J.4329.

6) Mohan Lal Vs. State of Rajasthan reported in 2015 SAR (Criminal) 770.

7) Hussain & Anr. Vs. Union of India reported in CRM No.10595 of 2014.

At the time of perusal of the materials placed on record, it appears that the present petitioner filed one Writ Petition being No. 11685 (W) of 2018 against the State of West Bengal and others and the said writ petition was disposed of on 25th September, 2018 by the learned Single Judge of this Court. From the copy of the judgment passed in connection with the said writ petition, it appears that the petitioner in that writ petition had prayed for the following relief:

(a) A writ and /or order or orders and/or direction or directions in the nature of certiorari commanding the respondents and each of them to transmit and certify the records of the case before this Hon'ble Court so that conscionable justice may be done by quashing the entire criminal proceeding being Bhaktinagar Police Station case no. 418 of 2018 dated 15.06.2018 under Sections 22(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 forthwith;

After giving opportunity of being heard to all the parties and after full‐ fledged hearing, the learned Single Judge has been pleased to refuse the prayer for quashing of the criminal proceedings as prayed for by the present petitioner.

The grounds taken by the present petitioner in present application for quashing of the criminal proceedings pending against him are similar to that of his grounds taken by him before the learned Single Judge in the writ petition filed by him. In Paragraphs 14, 15 and 16 of the said judgment, the Learned Single Judge has been pleased to observe as under:

"14. It does not seem to be a case where the Investigating agency has over‐zealously taken any hasty decision by misusing its position in registering the case and commencing the investigation or had proceeded carte blanche drawing no legal bounds. The gravamen of accusation also does not appear to be originating from any personal animosity or political vendetta.

Though the learned advocate appearing for the petitioner has argued the issues touching the merits of the case by referring to several documents and decisions but in my view, it is wholly unnecessary to enter into the factual arena. This Court in exercise of its discretionary jurisdiction cannot go into the veracity of the factual position and cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Such jurisdiction is required to be exercised sparingly, carefully and with caution and that too in the rarest of rare cases. Thus, quashment of the proceeding at this stage would not be appropriate. It is, however, made clear that this Court has not offered any observation on the merits of the case.

In the facts of the present case, neither any mala fide nor any inherent improbability is attributable to the action of the respondents and as such the guidelines as detailed in paragraph 105 of the judgment delivered in the case of Bhajan Lal (supra) have no manner of application. The judgment in the case of Ashok Kumar (Supra) was delivered in a fact situation where charges had been framed upon conclusion of investigation and as such the same is distinguishable on facts. "

This observations and findings of the learned Single Judge have not been challenged by the present petitioner before the appropriate Forum by way of preferring an appeal.

In the instant case, from the materials placed on record, it appears that the present petitioner prior to invoke the provision under Section 482 of the Code of Criminal Procedure had approached before the High Court for remedy as provided under Article 226 of the Constitution of India. The prayer of the petitioner for quashing of the criminal proceedings pending against him has been refused by the Learned Single Judge by passing a speaking order.

The power of the High Court to quash the criminal proceeding pending against the accused either Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure can be exercised only if the F.I.R. or complaint or the materials collected during course of investigation does not prima facie make out an offence.

In the instant case, charge‐sheet has already been submitted against the petitioner. Here the materials collected during investigation prima facie make out the alleged offences against the accused/petitioner.

In this connection, I would like to refer to a decision of State of Bihar Vs. Mohd. Khalique reported in (2002)1 SCC 652f:‐

"The extraordinary power under Article 226 of the Constitution of India or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice."

The power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases as observed by our Apex Court in several cases.

In the instant case, the petitioner had already taken the remedy available under Article 226 of the Constitution of India. Being failed to get favourable relief under Article 226 of the Constitution of India, he has again approached for similar relief by way of an application under Section 482 of the Code of Criminal Procedure.

Now the question comes whether the availability of alternative remedy by way an appeal, operates as a bar to entertain an application under Section 482 of the Code of Criminal Procedure. In this connection, it would not be out of place to mention another decision of Mohit @ Sonu and Another Vs. State of Uttar Pradesh and Another reported in (2013) 7 Supreme Court Cases 789. In paragraph 32 of the said judgment Hon'ble Apex Court has been pleased to observe as under:

"The intention of the legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis‐a‐vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C or Section 151 C.P.C cannot and should not be resorted to."

In the instant case, I have already observed that the present petitioner already approached before the High Court under Article 226 of the Constitution of India to obtain an order of quashing of the criminal proceeding pending against him and his said prayer was turned down by the High Court.

Moreover, the first information report, the charge‐sheet and the materials collected during investigation clearly indicate the existence of prima facie case for proceedings for alleged offences against the petitioner.

Moreover, quashing of prosecution by the High Court by appreciating evidence is not proper when the allegations made in the First Information Report and the materials referred to in the charge‐sheet prima facie make out alleged offences. The Court while considering the prayer for quashing should not assume the jurisdiction of the Trial Court and to consider the plea of innocence of the accused. While considering the prayer for quashing of the proceeding the High Court should not delve deep into the merit of the case or adjudicate upon a disputed question of fact.

The instant case, does not come within the parameters for quashing of the criminal proceeding as laid down by the Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others reported in AIR 1992 SC 604 and in other subsequent cases, regarding exercise of inherent power under Section 482 of the Code of Criminal Procedure. Moreover, from the materials placed on record, it cannot be said that the continuance of the criminal proceedings pending against 5the petitioner would amount to an abuse of the process of the Court.

In my opinion, it is not a fit case to exercise the discretion under Section 482 of the Code of Criminal Procedure.

In view of the above, the application under Section 482 of the Code of Criminal Procedure for quashing of the criminal proceedings pending against the petitioner is dismissed.

Hence, the same is devoid of merit and stands dismissed.

Copy of the Case Diary be handed over to the learned Public Prosecutor immediately.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.