Karnataka High Court
Mr. Harshith D vs State Of Karnataka on 28 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.25211 OF 2022 (GM - RES)
C/W
WRIT PETITION No.2743 OF 2023 (GM - RES)
IN WRIT PETITION No.25211 OF 2022
BETWEEN:
MR. HARSHITH D.,
S/O DEVARAJ
AGED ABOUT 24 YEARS
OCC: STUDENT OF BE FINAL YEAR
R/AT NO. 201, 5TH BLOCK
BESCOM OFFICE ROAD,
ASHWATHNAGAR
HBR TELECOM LAYOUT
BENGALURU 560 056.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE A/W
SRI KARIAPPA N.A.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
BENGALURU - 560 001.
2
2. SUPERINTENDENT OF POLICE
BANGALORE RURAL DISTRICT
BANGALORE
OFFICE NEAR CUNNINGHAM ROAD,
BENGALURU - 560 001.
3. THE INSPECTOR AND STATION HOUSE OFFICER
MADANAYAKANAHALLI POLICE STATION
NELAMANGALA TALUK
BENGALURU DISTRICT - 562 162.
4. MR.B.S. MANJUNATH
POLICE INSPECTOR
MADANAYAKANAHALLI POLICE STATION
BENGALURU DISTRICT - 562 162.
5. MR. RENUKA PRASAD
POLICE SUB-INSPECTOR
MADANAYAKANAHALLI POLICE STATION
NELAMANGALA TALUK
BENGALURU DISTRICT - 562 162
(ALL THE RESPONDENTS ARE
REPRESENTED BY
LEARNED GOVERNMENT ADVOCATE)
... RESPONDENTS
(BY SRI V.S.HEGDE, SPP-II A/W
SMT.YASHODHA, HCGP FOR THE RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR DTD 29.6.2022 REGISTERED
IN CRIME NO.316/2022 OF MADANAYAKANAHALLI POLICE
STATION, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT
AND ALSO ITS FURTHER PROCEEDINGS OF INVESTIGATION AS AN
ABUSE OF PROCESS OF LAW, WHICH IS REGISTERED FOR AN
OFFENCE U/S 20-B OF NDPS ACT, PENDING ON THE FILE OF
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HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE, AS PER
ANNEXURE-A FIR AND ANNEXURE-B ORDER SHEET AT PAGE 39 IN
SO FAR PETITIONER CONCERN.
IN WRIT PETITION No.2743 OF 2023
BETWEEN:
MR.KANJU MUSA
S/O OMAR SHARIF
AGED ABOUT 24 YEARS
STUDENT OF FINAL YEAR BBA
RESIDING AT HEGADENAGAR
2ND CROSS, KEMPEGOWDA LAYOUT
BENGALURU - 560 058
N/O OSAKA NILAYA
KASAMANA AREA POST OFFICE
TRIVANDRUM
KERALA - 695 002.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE A/W
SRI KARIAPPA N.A.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
BENGALURU - 560 001.
2. SUPERINTENDENT OF POLICE
BANGALORE RURAL DISTRICT
BANGALORE
OFFICE NEAR CUNNINGHAM ROAD,
4
BENGALURU - 560 001.
3. THE INSPECTOR AND STATION
HOUSE OFFICER
MADANAYAKANAHALLI POLICE STATION
NELAMANGALA TALUK
BENGALURU DISTRICT - 562 162.
4. POLICE INSPECTOR
MADANAYAKANAHALLI POLICE STATION
BENGALURU DISTRICT - 562 162.
5. POLICE SUB-INSPECTOR
MADANAYAKANAHALLI POLICE STATION
NELAMANGALA TALUK
BENGALURU DISTRICT - 562 162
(ALL THE RESPONDENTS ARE
REPRESENTED BY
LEARNED GOVERNMENT ADVOCATE
HIGH COURT OF KARNATAKA - 560 001)
... RESPONDENTS
(BY SRI V.S.HEGDE, SPP-II A/W
SMT.YASHODHA, HCGP FOR THE RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS SPL. CASE. NO.
6/2023 PENDING ON THE FILE OF HON'BLE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES,
BANGALORE RURAL DISTRICT, BANGALORE, FOR OFFENCE UNDER
SECTION 22(B) OF NDPS ACT, WHICH IS ARISING OUT OF CRIME
NO.316/2022 OF MADANAYAKANAHALLI POLICE STATION
BANGALORE RURAL DISTRICT, BANGALORE, AS PER ANNEXURE -A
FIR, ANNEXURE - B CHARGESHEET AND ANNEXURE-D ORDER OF
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COGNIZANCE DATED 03/01/2023 AND ITS PROCEEDINGS AS AN
ABUSE OF PROCESS OF LAW AS FAR ONLY PETITIONER CONCERN.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners in both these petitions are accused in Crime No.316 of 2022 registered for offences punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short). The petitioner in Writ Petition No.25211 of 2022 is accused No.4 and the petitioner in Writ Petition No.2743 of 2023 is accused No.1.
2. Heard Mr. Hashmath Pasha, learned senior counsel appearing for the petitioner in both the petitions and Sri V.S. Hegde, learned Special Public Prosecutor-II appearing for the respondents.
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3. Brief facts in Writ Petition No.25211 of 2022 are as follows:
The petitioner in the subject petition claims to be a student studying in the final year Bachelor of Engineering degree at Vijaya Vittala Institute of Technology, Hennur. On 29-06-2022 at about 12.30 p.m. the petitioner was said to be in the house preparing for his examination. About five policemen in regular civil dress entered the house of the petitioner, took the petitioner into custody informing him that they are from Madanayakanahalli Police Station, Nelamangala and they have to search the entire house to find incriminating material. What was the material and what was the allegation was not divulged. The entire house was searched but no material was found. It is then the Police told the father of the petitioner that they are taking the petitioner for enquiry. The averment in the petition is that the Police took the petitioner in an Innova car and the father was asked to follow them and one constable of the CCB was with the father in his car. The narration is that on the way two more suspects by name Kunju Moosa and Arjun were taken into the car and driven to a hotel. From the hotel the petitioner and other two were driven towards 7 Madanayakanahalli Police Station but did not go into the Police Station. All the three were detained in a go-down till 01-07-2022 and later were brought to the Police Station at 7.00 p.m. on 01-07-
2022 and were shown as arrested in a Narcotic Drugs and Psychotropic Substances ('NDPS') case planting 10 grams of MDMA and produced before the Court on 02-07-2022 at 8.30 p.m. and after obtaining an order of remand were housed in the Central Prison, Bangalore.
4. It is the averment in the petition that when the petitioner was taken into custody on 29-06-2022 no contraband substance was found in his possession or in the house that they searched. Notwithstanding the aforesaid circumstance, a crime comes to be registered against the petitioner in Crime No.316 of 2022 for offences punishable under Section 22(b) of the Act. The crime comes to be registered on the basis of a report of the Police Inspector - respondent No.4. These form the facts in the subject writ petition.
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5. Facts in brief in Writ Petition No.2743 of 2023 are as follows:
The petitioner is a student of Bachelor of Business Administration course at Reva University. On 28-06-2022 at about 1.00 p.m five to six policemen entered the house of the petitioner, forcibly taken him in the car and detained him along with the other petitioner. Rest of the facts are identical to what is narrated in the companion petition - W.P.No.25211 of 2022.
6. Both the petitioners in these petitions were alleged of offences punishable under Section 22(b) of the Act. The Police after investigation filed a charge sheet in the matter. Filing of the charge sheet is what drives the petitioners to this Court in the subject petitions.
7. The learned senior counsel representing the petitioners would contend that the Police have brutally behaved with the petitioners notwithstanding the fact that no contraband substance was even found or recovered when the houses of both the 9 petitioners were searched and both the petitioners were apprehended. The contraband substance is planted by keeping these petitioners in a go-down illegally detaining them for three days before they could be shown as accused and arrested in Crime No.316 of 2022. He would contend that samples that were planted with the petitioners were sent to Forensic Science Laboratory and the FSL test is clearly negative to what was alleged to be in possession of the petitioners. He would contend that the petitioners who are students, without any rhyme or reason, have been dragged into these proceedings. With the FSL report, the petitions should be allowed and liberty should be reserved in the petitioners to file cases for malicious prosecution against the respondents/Police, as there are several allegations of violation of human rights and the direction issued by the Apex Court from time to time in several cases.
8. On the other hand, the learned Special Public Prosecutor-II appearing for the respondents would vehemently refute the submissions with regard to every other aspect which forms the averment for malicious prosecution but would admit the fact that 10 FSL report is negative in favour of the petitioners. The report is that it was not MDMA that was found in possession of the petitioners, but would submit that it is a matter of trial for the petitioners to come out clean.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
10. The afore-narrated facts are not in dispute. The petitioner in Writ Petition No.2743 of 2023 is alleged to be in possession of 50 gms. of MDMA and the petitioner in Writ Petition No.25211 of 2022 is alleged to be in possession of 10 gms. of MDMA. If both these positions were correct, the petitioners would be tried for the offences punishable under Section 22(b) of the Act. The entire case of the prosecution depended upon the substance that was allegedly found in possession of the petitioners. The substance, according to the prosecution, was "MDMA". As required in law, the samples were sent for testing to the Forensic Science Laboratory of the Government. The opinion of the Forensic Science 11 expert, on analysis of the substance that was sent for its test, is as follows:
"Opinion
1. The sample found in Art.1 & 4 have responded negative for Methamphetamine and responded positive for 2 aminopyrdine.
2. The sample found in Art.2 has responded positive to Methamphetamine
3. The sample found in Art.3 & 5 have responded positive for cannabis (ganja).
4. Methamphetamine is a stimulant drug, Cannabis contains psychoactive constituents and 2-Aminopyridine used in the synthesis of other biological molecules."
(Emphasis added) Articles 1 and 4 were sent for testing. Article 1 was 50 gms. of alleged MDMA and Article 4 was 10 gms of alleged MDMA which were found with both the petitioners. It is these two samples that were tested by the Laboratory. Article 1 has responded negative to Methamphetamine which is a psychotropic substance, a component in MDMA. The sample at Article 2 which was also sent for testing has responded positive for Methamphetamine. Article 2 - MDMA was recovered from accused No.2 who is not before Court. Who are before the Court are accused Nos. 1 and 4. Items recovered from accused 1 and 4 are articles 1 and 4. In the FSL report in respect of 12 articles 1 and 4 both have turned out to be negative for what was alleged against the petitioners. Article-2 as observed supra has turned positive for Methamphetamine. Articles 3 and 5 have responded positive for cannabis (ganja). Therefore, what was seized from the petitioners was not MDMA and what was seized from others may have been what is alleged and opined.
11. In the teeth of the aforesaid report and only articles 1 and 4 being the subject matter of these cases as the petitioners are accused 1 and 4, permitting further proceedings would become an abuse of the process of law, since the petitioners are allegedly found to have substances which are not contraband. Therefore, further proceedings in Special Case No.6 of 2023 against the petitioners cannot be permitted to continue.
12. The learned senior counsel for the petitioners has made elaborate submissions and allegations against the Police with regard to illegal arrest, as the petitioners were detained from 28th and 29th June 2022 and were shown as taken into custody only on 01-07-2022. It is contended that it was a malicious prosecution 13 that was instituted against the petitioners by the respondents/Police and every one of the averment in the petitions are a matter of fact and are captured in CCTV at every place where the petitioners had been dragged throughout the City.
13. The submission though would merit acceptance, it is for the petitioners to avail of such remedy as is available in law. It is made clear that the Court has not pronounced upon the averments qua malicious prosecution or any of the averments that are in the petitions in this regard.
14. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petitions are allowed.
(ii) Proceedings in Special Case No.6 of 2023 arising out of FIR in Crime No.316 of 2022 of Madanayakanahalli Police Station insofar as it pertains to accused No.1 and 4, the petitioners herein, stand quashed. 14
(iii) It is made clear that the observations or findings in the case on hand are only with regard to consideration of the case of the petitioners under Section 482 of the CrPC and the same would not become applicable or binding upon further proceedings against any other accused.
Sd/-
JUDGE bkp CT:MJ