Allahabad High Court
Jitendra Kumar vs State Of U.P. And 3 Others on 22 August, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:135447-DB Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 13184 of 2024 Petitioner :- Jitendra Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Apurva Hajela Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Apurva Hajela, learned counsel for the petitioner and Sri Ghanshyam Kumar, learned A.G.A. for the State-respondents.
2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 14.06.2024 registered as Case Crime No.182 of 2024, under Sections- 8, 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 4 of the Prohibition of Electronic Cigarettes Act, 2019, Police Station - Sector 20, Noida Commissionerate of Gautam Budh Nagar and for a direction to the respondents not to arrest the petitioner in pursuance of the impugned first information report.
3. Challenging the impugned first information report submission of learned counsel for the petitioner is that the petitioner was neither arrested by the police on the alleged spot of incident nor any recovery whatsoever has been made from the petitioner and entire story is concocted. He further submits that in fact the co-accused Ravi Kumar was arrested on the spot along with other co-accused Shahnawaj. It is submitted that the allegation in the first information report is that the co-accused Shahnawaj and Ravi Kumar have taken name of the petitioner as owner of the psychotropic substance and electronic cigarettes, it is only on that basis, he has been falsely implicated in the present case. It is further submitted that in fact in the CCTV footage of the spot Ravi Kumar was not found to be present on the present spot. He next submits that the petitioner has no criminal history and entire evidence is in violation of the provisions of the N.D.P.S. Act as well as Section 25 of the Indian Evidence Ac. He has placed reliance on judgement of Hon'ble Apex Court in the case of Toofan Singh vs. The State of Tamilnadu, AIR 2020 SC 5592. In support of his submission, he has further placed reliance on the provisions of the Prohibition of Electronic Cigarettes (Production, Manufacturing, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 (hereinafter referred to as Cigarettes Act, 2019) and the Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulations of Trade and Commerce Production, Supply and Distribution) Act, 2003 (hereinafter referred to as Cigarettes Act, 2003). It is submitted that the provisions of Section 4 of the Cigarettes Act, 2003 are not applicable in the present case as it only prohibits smoking on a public place. He next submitted that even Section 4 of the Electronic Cigarettes Act, 2019 is not attracted as it provides on it, it only defines the offence whereas the punishment is provided under Section 7 of the aforesaid Act.
4. Per contra learned A.G.A. has opposed the submissions and submits that merely mentioning of the incorrect Act as their names are similar in nature, cannot be a ground for quashing the impugned first information report and the petitioner was specifically named in the first information report and two co-accused were arrested on the spot and all such arguments that are being raised are nothing but the defense of the petitioner.
5. We have considered the submissions and we find that simply because the incorrect Act has been mentioned in the present case by itself could not be a ground to quash the first information report whereas it has been mentioned at several places that in fact the Electronic Cigarettes were recovered and admittedly transportation of the e-cigarettes itself is not allowed. In so far as the judgement of Toofan Singh is concerned, we find that it was given in a criminal appeal finally reached before the Hon'ble Apex Court and cannot be a guiding factor for the purpose of quashing of the first information report where at this stage, the impact of Section 25 of the Indian Evidence Act by itself cannot be a ground to quash the first information report. At this stage, we find that even if the arrest of Ravi Kumar is being disputed, the spot arrest of Shahnawaj is not in dispute.
6. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report.
7. In view of the above, the writ petition is dismissed.
Order Date :- 22.8.2024 Jitendra