Allahabad High Court
Munish Dhiman vs State Of U.P. 2 Others on 10 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:62983 Court No. - 91 Case :- APPLICATION U/S 482 No. - 9406 of 2024 Applicant :- Munish Dhiman Opposite Party :- State of U.P. and others Counsel for Applicant :- Aditi Srivastava, Kandarp Srivastava Counsel for Opposite Party :- G.A. Hon'ble Prashant Kumar,J.
1. Heard Sri Kandarp Srivastava, learned counsel for the applicant, Sri S.D. Pandey, learned A.G.A. for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing impugned summoning order dated 01.03.2024 under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Crime No.09 of 2023 (CBN vs. Dheeraj Chaudhary and others) Police Station-P & I Cell, New Delhi, District-Gautam Budh Nagar.
3. As per prosecution case, on 30.11.2023 a public information was received by the Central Bureau of Narcotics (in short 'CBN'), P & I Cell, New Delhi Unit that a package containing psychotropic substances was to be delivered to a medical shop. A team was constituted and on the same day i.e. 30.11.2023 at about 7.45 P.M. the officers of CBN, New Delhi had recovered Spasmo Proxyvon Plos (Tramado) 15984 capsules, a psychotropic substance under NDPS Act, 1985 in a Alto car possessed by one Dheeraj, co-accused from Cheery County Society, near Ek Murti Chowk, Greater Noida. It is alleged that Tramadol, being a scheduled substance is banned under the NDPS Act and accordingly, the package was seized vide Panchnama dated 30.11.2023 and on the basis of seizure, instant case was registered.
4. Learned counsel for the applicant submits that the applicant is not named in the FIR. The name of applicant surfaced in the confessional statement of co-accused Azad Saifi. Applicant is the owner of M/s Arogyam Medical Store, and it was alleged that the recovered psychotropic substance was the item of his shop. He submits that confessional statements of co-accused persons are totally false and fabricated and no reliance could be placed on it. Applicant was on bed rest and was not coming to his medical store and co-accused Azad Saifi, who is employee of his medical store, in order to get financial benefits was selling the Spasmo Proxyvon Plus (Tramadol) capsules from his shop without his knowledge and permission, hence, the applicant has nothing to do with it. He further submits that the applicant has never committed any offence as alleged against him. Further submission is that no offence against the applicant is disclosed and the court below has utterly failed to consider that no prima facie case is made out against the applicant. He also pointed out certain documents in support of his contention.
5. Per contra, learned A.G.A. vehemently opposes the application and contends that disputed questions of fact are involved in the present matter and this Court is not supposed to look into the same in an application under Section 482 Cr.P.C. and it can only be adjudicated during the course of trial. It is further submitted that the Court below has rightly summoned the applicant and no interference is required by this Court in the impugned order as well as the on going proceedings.
6. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant(s). All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court.
7. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) 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.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
9. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
10. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 10.4.2024 Manish Himwan