Madhya Pradesh High Court
Sunil Parashar vs State Of M.P on 26 March, 2015
1 Mcrc.5882.2013
Sunil Parashar Vs. State of M.P.
26.03.2015
Shri L.S. Chouhan, counsel for the applicant.
Shri Prabal Singh Solanki, Government Advocate, for the
respondent/State.
Heard on admission.
Applicant has challenged the registration of Crime
No.55/2013 registered at Police Station Padav, District Gwalior
(M.P.) and prayed for quashing of the charge-sheet filed in
consequence of registration of that case.
Facts of the case, in short, are that on 08.02.2013 a case of
offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1955 (hereinafter referred to as "the Special Act") was registered against the applicant that he had nine grams smack with him.
Learned counsel for the applicant has submitted that the matter suffers with some irregularities and illegalities. In seizure memo as well as memo relating to weighing of the contraband substance, weight of prohibited article was not mentioned. That column was blank. The FIR was lodged at 02:30 pm whereas the alleged seizure was done at 01:15 pm on 08.02.2013. It is also submitted that sub-inspector has investigated the matter who was not competent to do such investigation and seizure in the Special Act. It is also submitted that the police officer who seized the alleged article himself has investigated the case.
After considering the submissions made by the learned counsel for the parties, it appears that in few documents the total quantity of smack could not be mentioned but in such documents it was mentioned that out of the total seized quantity two grams of smack was taken separately as a sample so that it can be sent 2 Mcrc.5882.2013 Sunil Parashar Vs. State of M.P. to the concerned laboratory, hence, it may be a clerical error and therefore, it cannot be said that a false case has been made against the applicant. Due to this clerical error, the crime registered against the applicant cannot be quashed. Similarly, when the entire procedure of seizure etc could have been completed thereafter the investigating officer who did the preliminary investigation should have come to the police station and thereafter the case could be registered. Hence, if seizure was done at 01:15 pm and thereafter case was registered at 02:30 pm then no illegality has been done by the investigation officer. Learned counsel for the applicant has placed reliance upon the judgment passed by the Apex Court in the case of "State of West Bengal [The] & Ors. Vs. Babu Chakraborty"
2004-05 [Suppl.] Cr.L.R. [SC] 281, judgment passed by the Apex Court in the case of "Satish Mehra Vs. State of N.C.T. Of Delhi & Anr." 2013(1) Crimes 59 (SC) and also on the judgment passed by the Single Bench of this Court in the case of "Sunil Vs. State of M.P." 2014(1) M.P.H.T. 82. However, these judgments are passed by the Apex Court as well as the Single Bench of this Court while considering the appeal after conviction. Such points cannot be considered at the stage where trial is pending. By such lapses, registration of crime or pending charge-sheet cannot be quashed. Applicant has no advantage of aforesaid judgments for the petition under Section 482 of Cr.P.C.
Learned counsel for the applicant has also raised an objection that sub-inspector was not entitled to investigate the matter. He was not competent to do so. In this context, the judgment of Single Bench of Rajasthan High Court in the case of Nathiya and another Vs. State of Rajasthan" 1992 Cri.L.J.
3 Mcrc.5882.2013 Sunil Parashar Vs. State of M.P. 2342 has been referred. Similarly, the reliance is placed upon the judgment passed by the Apex Court in the case of "Roy V.D. Vs. State of Kerala" 2001 Cr.L.R. [SC] 54 and also on the judgment passed by the Supreme Court in the case of "State of Punjab Vs. Balbir Singh" AIR 1994 SC 1872.
Out of these cases, the case of State of Punjab (Supra) and Nathiya (supra) are the judgments passed prior to the amendment in the Special Act. In the case of Roy V.D. (supra) the charge-sheet was filed by the Excise Inspector. In the present case, charge-sheet has not been filed by the Excise Sub- Inspector and therefore that judgment is not applicable in the present case due to factual difference.
Learned counsel for the applicant could not show any notification that sub-inspector of police was not competent to register such a crime or not competent to investigate the matter. It would be appropriate that the concerned sub-inspector be asked in the cross-examination whether he was competent to do so or not. According to Section 42 of the Special Act, the State Government could empower by general or special order to any officer to power of entry, search, seizure or arrest without warrant. According to the language of this Section any officer above the rank of constable could be empowered and therefore at this stage it cannot be said that concerned sub-inspector was not empowered to investigate the matter.
Inherent powers of this Court under Section 482 of the Cr.P.C. can be invoked if prima facie no offence is made out against the applicant. Such situation arises when trial court is not competent to peruse the documents filed by the accused and if such documents are to be considered then a petition under 4 Mcrc.5882.2013 Sunil Parashar Vs. State of M.P. Section 482 of the Cr.P.C. is to be filed. Otherwise assessment of prosecution evidence is a duty of trial court and to frame the charge accordingly. In the present case, charges are framed and the applicant did not challenge the order relating to the framing of the charges. Hence, now applicant is estopped to raise such objections before this Court under Section 482 of Cr.P.C. whereas such objections are nothing but an evaluation of the evidence collected by the prosecution.
In the light of the aforesaid discussion, it would be premature to say that charge-sheet filed against the applicant was not maintainable or it may be quashed. Hence, it is directed to the applicant to contest the matter and raise all such points before the trial court during trial. This is not the case in which inherent powers of this Court under Section 482 of Cr.P.C. may be invoked, Consequently, application filed by the applicant, namely, Sunil Parashar under Section 482 of Cr.P.C. is hereby dismissed at motion stage.
A copy of this order be sent to the trial court for information.
(N.K. Gupta) Judge pd