Karnataka High Court
Sri. Dinesh Shah vs State Of Karnataka on 1 December, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.884 OF 2015
BETWEEN:
1 . SRI. DINESH SHAH
S/O KANTILAL
AGED ABOUT 59 YEARS
R/AT NO. C/9, AMARPALI
APARTMENT, SHAHIBAG
AHMEDABAD
GUJARAT-380001
2 . SRI SUNPAL
S/O LABSINGHKAR
AGED ABOUT 52 YEARS
R/AT NARAYANANAGAR SOCIETY
NARODA, AHMEDABAD
GUJARAT-380001
3 . SRI PATEL NEERAVKUMAR
S/O VINODBHAI
AGED ABOUT 30 YEARS
R/AT GUJARIA
MISSION DISTRICT
GUJARAT-387001
4 . SRI AJAYBHAI KANTIBHAI PATEL
S/O KANTIBHAI PATEL
AGED ABOUT 36 YEARS
R/AT NO. 4, RAJVEE TOWER
GURUKULA ROAD
AHMEDABAD
GUJARAT-380001
2
5 . SRI VISHNU M PATIL
S/O MANILALA PATEL
AGED ABOUT 57 YEARS
R/AT UDAYPURA, KHEDA TALUK
KHEDA DISTRICT
GUJARAT-387001
6 . SRI PATIL VINODBHAT
S/O PRABALLADBHAI
AGED ABOUT 41 YEARS
R/AT RADEJA TALUK
GANDHINAGAR DISTRICT
GUJARAT-387001
7 . SMT.JAYANTHI @ JAYANTHI ROY L RATHOD
S/O LUCKYBHAI
AGED ABOUT 51 YEARS
R/AT NO. 14, BAKTHIRAJ
SOCIETY, 200 FEET ROAD,
NICOLE AHMEDABAD
GUJARAT-380024
8 . SRI JADEJA VIJAY SINHA
S/O KANUSINHA
AGED ABOUT 26 YEARS
R/AT NO. 1001, CHOUWADAVAS
DABALA, VIJIPURA TALUK
MISSION DISTRICT
GUJARAT-387001
9 . SRI CHANDRAKANTH
S/O PATAOLIA
AGED ABOUT 50 YEARS
R/AT KARNAVATHI APARTMENT
BAPUNAGAR
AHMEDABAD
GUJARAT-380007
10 . SRI PATIL YOGESH KUMAR
S/O RAMANBHAI
AGED ABOUT 32 YEARS
R/AT NAVEEN K-15
BALYOVAR, VIJIPURA TALUK
MISSION DISTRICT, GUJARAT-387001
3
11 . SRI MAKKAVAN VIKRAM SINGH
S/O VIKARAM SINGH
AGED ABOUT 34 YEARS
R/AT BLOCK NO. 45/1
SECTOR 15, GANDHINAGAR
GUJARAT-382010
12 . SRI BAROT AJAYKUMAR
S/O BACHUCHI
AGED ABOUT 44 YEARS
R/AT NO. 10, HARSHA PARK
SOCIETY, MISSION,
MISSION DISTRICT,
GUJARAT-387001
13 . SRI PATILKANUBHAI
S/O PRABHALLADBHAI
AGED ABOUT 54 YEARS
R/AT NO. 36-K, LAGANAJ-2
MISSION TALUK & DISTRICT
GUJARAT-387001
14 . SRI RAJANIKANTH P PATIL
S/O PATIL
AGED ABOUT 49 YEARS
R/AT BHOPAL, AHMEDABAD
GUJARAT-380007
15 . SRI VASANTH BHAI D PATIL
S/O DOORUBHAI
AGED ABOUT 53 YEARS
R/AT NO. 27, NARAYANA BANGLOW ROAD,
HIGHWAY GOTLODIA
AHMEDABAD, GUJARAT-380007
16 . SRI PATIL BIPINKUMAR
S/O RAMADAS
AGED ABOUT 32 YEARS
R/AT NO.18, DEEPALINAGAR
SOCIETY, NEAR YASHODANAGAR
NAGALAPURA
MISSION, AHMEDABAD
GUJARAT-380007
4
17 . SRI PATEL ARAVINDBHAI
S/O RAMACHOORBHAI
AGED ABOUT 38 YEARS
R/A NO.108, CHAMPANAGAR,
NUGAAR-2, MISSION DISTRICT,
GUJARAT-387001.
18 . SRI PANCHEL JAYENDRA BHAI
S/O NAATUBHAI
AGED ABOUT 40 YEARS
R/AT NO. EF-6, KRUPA
RESIDENCY, MOTERA
GUJARAT-380005
19 . SRI PANDAI DHARMENDRABHAI
S/O RAMESH CHANDRA
AGED ABOUT 48 YEARS
R/AT GOPALNAGAR
BAPUNAGAR, AHMEDABAD
GUJARAT-380007
20 . SRI PATEL POONAMBHAI
S/O RAMANBHAI
AGED ABOUT 33 YEARS
R/AT LONGNACH, MISSION
GUJARAT-380007
21 . SRI ANUBHAI PATEL
S/O BABULAL
AGED ABOUT 38 YEARS
R/AT LODRA, MONS TALUK
GANDHINAGAR DISTRICT
GUJARAT-382010
22 . SRI PATEL BHARATH KUMAR
S/O PRABHUDAS
AGED ABOUT 51 YEARS
R/AT NO. 36, NEW MARUTHI
SOCIETY, MOTERA
AHMEDABAD
GUJARAT-380007
23 . SRI KARTHIK
S/O HARIRAM
5
AGED ABOUT 48 YEARS
R/AT NO. J/19, KALPATARU
APARTMENT, NEAR GANESH VIDYALAYA,
NAVAVADEJ
AHMEDABAD
GUJARAT-380007
24 . SRI GHANASHYAM PATEL
S/O SHANKAR DAS
AGED ABOUT 50 YEARS
R/AT NO. 9/99, GEETANJALI
APARTMENT, SOLAR ROAD
NARAYANAPURA
AHMEDABAD
GUJARAT-380007
25 . SRI DHANIK MALLESH
S/O CHIMANLAL
AGED ABOUT 56 YEARS
R/AT NO. 15A, PRAGATHI
PARK SOCIETY, MANINAGAR
AHMEDABAD
GUJARAT-380007
26 . SRI HARAPALA SINHA
S/O RAM SINHA
AGED ABOUT 40 YEARS
R/AT TILWAI, VIJIPURA TALUK
MISSION DISTRICT
GUJARAT-387001
27 . SRI SHARMA RAKESH KUMAR
S/O RAKESH KUMAR
AGED ABOUT 52 YEARS
R/AT LONGNACH, MISSION
DISTRICT GUJARAT-387001
28 . SRI AJITH KUMAR
S/O SHANTHILAL
AGED ABOUT 38 YEARS
R/AT NO. 52, BARAMAANI
SOCIETY, SAANAND TALUK
AHAMEDABAD
GUJARAT-380007
6
29 . SRI PATEL VINOD
S/O CURZONBHAI
AGED ABOUT 35 YEARS
R/AT NO.2, BAHUDI PARK
DIVISION-2, MANINAGAR EAST
AHMEDABAD
GUJARAT-380007
30 . SRI GAMUNATH
S/O RAMANATH
AGEDA BOUT 35 YEARS
R/AT PANCHALASHA CHOTA
DUNGARPURA TALUK & DISTRICT
RAJASTHAN-314001
31 . SRI VINOD BHAI
S/O KALUBHAI
AGED ABOUT 34 YEARS
R/AT BHARAWATHVASSA
NAVAWADEJ
AHMEDABAD
GUJARAT-380007
32 . SRI RANAJITH SINGHCHOWDA
S/O JELU SINGHA
AGED ABOUT 32 YEARS
R/AT NO. 27, SIDDIVINAYAKA
BUNGLOW, PITAPURA
GANDHINAGAR GUJARAT-382010
33 . SRI RAMANLAL
S/O GELAJI CHOWHAN
AGED ABOUT 48 YEARS
R/AT NO. 534, MOTERA
AHMEDABAD
GUJARAT-380007
34 . SRI RAJESH K PATEL
S/O KANTILAL,
AGED ABOUT 53 YEARS,
R/AT NO. 01,NAVADEEPA APARTMENT,
SUBHASHA CIRCLE,
MEMNAGAR,
AHMEDABAD, GUJARAJ-380052
7
35 . SRI VALLABH
S/O NANJI,
AGED ABOUT 50 YEARS,
R/AT NO. 123, BARAMMIYA
KATAM, NARANIYA,
DOGAPURA TALUK & DISTRICT
RAJASTHAN-314001
36 . SRI. RAJESH
S/O NATHU,
AGED ABOUT 33 YEARS,
R/AT NO.415, PATIDHARBASTI
PUNALI TALUK, DOUGLAPURA DISTRICT
RAJASTHAN-314001
37 . SRI DEVILAL PATEL
S/O HIRA,
AGED ABOUT 40 YEARS,
R/AT MALANA GADI TALUK,
BASWADA DISTRICT,
RAJASTHAN-327001
38 . SRI ALPASH PATEL
S/O MANGALDAS PATIL,
AGED ABOUT 43 YEARS,
R/AT NO. P14, ABHISHEK APARTMENT, WADE,
AHMEDABAD,
GUJARAT-380007
39 . SRI NATWAR
S/O KANAJI,
AGED ABOUT 37 YEARS,
R/AT PILLWAWAYI,
VIJAPURA TALUK,
GUJARAT-382810
40 . SRI. MONISHA
S/O RAMANIK LAL,
AGED ABOUT 49 YEARS,
R/AT AHMEDABAD,
GUJARAT-380007
41 . SRI KISHAN PANNARA
S/O KALPESH PANNARA,
8
AGED ABOUT 23 YEARS,
R/AT AHMEDABAD
GUJARAT-380007
42 . SRI PATEL AMRUTHLAL
S/O PURUSHOTHAM DAS,
AGED ABOUT 65 YEARS,
R/AT AHMEDABAD
GUJARAT-380007
43 . SRI RAJAPUT JAYADEEP SINGH
S/O MADARAJI,
AGED ABOUT 39 YEARS,
R/AT AHMEDABAD
GUJARAT-380007
44 . SRI PATEL JAYESHBHAI
S/O LAL BHAI,
AGED ABOUT 47 YEARS,
R/AT AHMEDABAD
GUJARAT-380007
45 . SRI PATEL LALJIBHAI
S/O KALIDAS,
AGED ABOUT 39 YEARS,
R/AT AHMEDABAD
GUJARAT-380007
46 . SRI NARENDRA SINGH
S/O RAMACHUDABHAI,
AGED ABOUT 52 YEARS,
R/AT AHMEDABAD,
GUJARAT-380007
47 . SRI GOVERDHANBHAI
S/O BHIMJIBHAI,
AGED ABOUT 56 YEARS,
R/AT AHMEDABAD,
GUJARAT-380007
48 . SRI MANSUKBHAI
S/O DEVOSIBHAI,
AGED ABOUT 43 YEARS,
R/AT ESHWARNAGAR,
9
AHEMADBAD,
GUJARAT-380007
49 . SRI POOJARAO SURABH
S/O JAYANTHILAL,
AGED ABOUT 38 YFEARS,
R/AT MORABHI
AHEMADBAD,
GUJARAT-380007
50 . SRI JITENDRA
S/O DINESHBHAI,
AGED ABOUT 28 YEARS,
R/AT AHEMADBAD,
GUJARAT-380007
51 . SRI DODIYA GHANASHYAMBHAI
S/O AMALA,
AGED ABOUT 45 YEARS,
R/AT PALADI, KANKHAJ
GUJARAT-380007
52 . SRI DODIYA RANJITH SINGH
S/O LALUBHAI,
AGED ABOUT 53 YEARS,
R/AT PALADI,KANKHAJ,
GUJARAT 380007
53 . SRI KALLESH PANNARA
S/O BABULAL,
AGED ABOUT 49 YEARS,
R/AT AHMADABAD
GUJARAT-380007
54 . SRI DEEPAK
S/O SOMA B. TAKKAR,
AGED ABOUT 47 YFEARS,
R/AT AHMEDABAD
GUJARAT 380007
55 . SRI VIHOLE VISHNUJI
S/O MAGANAJI
AGED ABOUT 43 YEARS,
R/AT PILLAWAI,
10
AHMEDABAD
GUJARAT-380024
56 . SRI PATIL DINESH KUMAR
S/O PACHCHABHI
AGED ABOUT 26 YEARS,
R/AT VIJAPURA,
AHMEDABAD
GUJARAT 380001
57 . SRI PATEL LAL
S/O KHODABHAI
AGED ABOUT 56 YEARS,
R/AT AHMEDABAD
GUJARAT 380001
58 . SRI PATEL GHANASHYAM
S/O RAGHAV G.
AGED ABOUT 40 YEARS,
R/AT AADUVADU ,
AHMEDABAD
GUJARAT-380007
59 . SRI GAMEERA
S/O KURIYAPAATIDHAR
AGED ABOUT 44 YEARS,
R/AT CHOUPASAG,
BANSAWAR DISTRICT
RAJASTHAN 327001.
:PETITIONERS
(BY SRI AMAR CORREA, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY UPPARPET POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU 560001.
:RESPONDENT
(BY SMT. K.P. YASHODHA, HCGP)
11
THIS CRIMINAL REVISION PETITION IS FILED
U/S.397 READ WITH S.401 CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 20.01.2015 PASSED BY
LEARNED XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE
AND SPL. JUDGE FOR NDPS CASES, AT BENGALURU, IN
CRIME NO.236/2014 (NOW REGISTERED AS SPL.CC
NO.31/2015) TAKING COGNIZANCE AND DIRECTING TO
REGISTER A CASE AGAINST THE PETITIONERS AND
ISSUANCE OF SUMMONS TO PETITIONER NOS.1 TO 59
FOR THE OFFENCES PUNISHABLE UNDER SECTION 15-A
OF THE KARNATAKA EXCISE ACT, SECTIONS 79 AND 80
OF THE KARNATAKA POLICE ACT AND SECTION 20(b) OF
NDPS ACT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING ALONG WITH I.A.1/2015 THROUGH PHYSICAL
HEARING / VIDEO CONFERENCE THIS DAY, THE COURT
MADE THE FOLLOWING:-
ORDER
This petition is filed under S.397 Cr.P.C. seeking to set aside the order dated 20.01.2015 passed by the Court of XXXIII Addl. City Civil and Sessions Judge and Spl. Judge for NDPS Cases at Bangalore in Spl. CC No.31/2015 (Crime No.236/2014), taking cognizance and issuance of summons to the petitioners for the offences punishable under Section 15-A of the Karnataka Excise Act, 1965, Sections 79 and 80 of the Karnataka Police Act and Section 12 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
2. The impugned order reads as under:
" Perused the charge-sheet and the
documents produced by the Police Inspector,
C.C.B, F&M Squad, N.T. Pet, Bangalore. There is prima-facie case against the Accused Nos.1 to 62 with respect to the said offence P/U/Ss.79, 80 of K.P. Act; Section 15-A of K.E. Act and Section 20(B) of NDPS Act, to trial. Hence Cognizance of the said offences as mentioned in the charge-sheet is taken against the Accused Nos.1 to 62. Hence register the case against the Accused Nos.1 to 62 for the said offences mentioned in the charge sheet.
Issue summons to the Accused Nos.1 to 62 by 26-02-2015."
3. The case of the prosecution is that on 11.07.2014 at about 9.00 p.m. Sri K.S. Tanveer, Police Inspector of City Crime Branch received an information that 40 to 45 people from Gujarat and Rajastan were engaged in playing "three cards" a game of chance in the party hall on the fifth floor of "Chetan International Hotel", Gandhinagar, and on receiving this information, the Police Inspector along with his team raided the said hotel 13 between 10.30 and 11.00 p.m. and found 40 people playing a game of chance namely "three cards" and they were surrounded and were apprehended and 42 mobile phones, cash of `6,56,485/-, various coins and 34 packs of cards, two bottles of whiskey and 85 packets of jarda were seized.
4. Further case of the prosecution is that on enquiry, accused No.1 Sri Dinesh Shah is alleged to have disclosed that he had brought the accused persons from Ahmedabad for the purpose of gambling and had booked rooms at "Chetan International Hotel" and also in "Arafa Inn Hotel". Based on this information, the raiding team proceeded to Arafa Inn hotel where they found 19 other accused persons involved in gambling in room No.509. These accused persons were searched and 28 mobile phones, cash of Rs.8,80,000/- and 11 packs of cards and 25 packets of jarda and a bag containing a packet of ganja leaves were seized under a panchanama and all the accused were taken to the Police Station and a FIR was registered against them in Crime No.236/2014 under Section 15-A of the Karnataka Excise Act, 1965, Sections 14 79 and 80 of the Karnataka Police Act and Section 20(b) of the NDPS Act.
5. After investigation, charge-sheet came to be laid against all the accused persons for the above offences. By the impugned order, learned Special Judge took cognizance of the offences and issued summons to the petitioners.
6. Sri Amar Correa, learned counsel for the petitioners at the outset submitted that the impugned order suffers from error of law and facts in as much as the order taking cognizance is not a speaking order. It does not reflect application of mind to the facts of the case. A reading of the FIR and the charge-sheet indicates that the initial information received by the police related to a non cognizable offence. Under the said circumstance, without the authorisation of the Magistrate under S.155(2) of Cr.P.C., the Police Inspector or any other police officer could not have proceeded with the investigation; as a result, the very initiation of the case against the petitioners being illegal, subsequent submission of the charge-sheet 15 and the order of taking cognizance by the learned Magistrate are vitiated.
7. The next contention of the learned counsel is that as per the prosecution version, alleged offences had taken place in a "party hall" and "room No.509" which are not "public place" as defined under S.15-A of the Karnataka Excise Act. In support of his submission, learned counsel referred to the decisions of the Hon'ble Supreme Court reported in (2018) 9 SCC 709 (SK. RAJU ALIAS ABDUL HAQUE ALIAS JAGGA Vs. STATE OF WEST BENGAL) and (2008) 2 SCC 370 (DIRECTORATE OF REVENUE AND ANOTHER Vs. MOHAMMED NISAR HOLIA) and the decision of this Court in ERAPPA AND OTHRS Vs. STATE OF MYSORE, 1963 SCC Online Kar 62 and the decision of the Kerala High Court in RAJAN AND OTHERS Vs. STATE OF KERALA, 2016 SCC Online Ker 39380. Based on these decided cases, he argued that the essential ingredients of S.15-A of the Karnataka Excise Act having not been made out, learned Magistrate has committed an error in taking cognizance and issuing summons to the petitioners for the offence under Section 15-A of the Karnataka Excise Act.
16
8. In so far as the offence under the provisions of the NDPS Act is concerned, learned counsel would submit that there is no clear indication in the charge-sheet as to the person who was in possession of the alleged substance. According to the prosecution the ganja leaves were found in the bag of accused No.1 in room No.509 of "Arafa Inn Hotel". But the records indicate that accused No.1 was arrested in Chetan International Hotel. As per the FIR, all the accused persons were subjected to personal search in the respective hotels and the articles found in their possession were seized. Therefore, prima facie case is not made out to show that the alleged bag was in the possession of accused No.1, as a result, the ingredients of the offence under S.20(b) of the NDPS Act are not made out and therefore the issuance of summons to the petitioners to answer the charge under the NDPS Act is illegal and amounts to abuse of process of Court.
9. Dilating on the above point, learned counsel further submitted that the requirements of Section 42 of the NDPS Act were also not complied with while effecting the alleged seizure; no material has been produced along with the charge-sheet to show that the information was 17 conveyed to the superior Police Officers. That apart, the seizure was effected without registration of the FIR contrary to the law laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of LALITA KUMARI VS. GOVT. OF U.P. & OTHERS, ((2014) 2 SCC 1) and thus, the learned counsel prayed for setting aside the impugned order and to quash the entire proceedings.
10. Repelling the above submissions, learned HCGP argued in support of the impugned action contending that the impugned order does not suffer from any error or infirmity as sought to be made out by the learned counsel for the petitioners. At the stage of taking cognizance, learned Magistrate is not required to analyse the evidence or to satisfy himself about the correctness or otherwise of the allegations made against the accused persons and therefore, there is no illegality in the impugned order. Further learned HCGP would submit that the decisions relied on by the learned counsel for the petitioners are rendered under S.43 of the NDPS Act, and therefore, the ratio laid down in those decisions cannot be applied to the expression "public place" as defined under S.15-A of the Karnataka Excise Act.
18
11. Meeting the arguments of the learned counsel for the petitioners regarding the alleged illegalities in the registration of the FIR learned HCGP placed reliance on the decision of this Court in Crl.P. 3073/2020 and connected matters, dated 01.10.2020 and submitted that there being no clear information to the police officer about the commission of cognizable offence, the police officer was justified in proceeding to the spot to ascertain the alleged commission of offence before registration of the FIR and therefore the course adopted by the police is in accordance with the law laid down by the Hon'ble Supreme Court in LALITA KUMARI case (supra) and thus prayed for dismissal of the petition.
12. Having considered the rival submissions and on perusal of the record, I find that the criminal proceedings initiated against the petitioners suffer from patent illegalities and blatant violation of the provisions of the Code and the provisions of the NDPS Act, right from the inception. First and foremost, it has to be noted that the specific case of the prosecution is that on receiving credible information that some 40 to 45 people from 19 Gujarat and Ahmedabad were involved in playing "three cards", a game of chance, the police inspector along with his team proceeded to Chetan International Hotel and apprehended 40 persons from the said hotel. This information undoubtedly related to a non cognizable offence. As per S.155 of the Cr.P.C., when an information is given to an Officer in charge of the Police Station relating to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of information in a book to be kept by such officer in such form as the State Government prescribes, and refer the informant to the Magistrate. This mandatory requirement is seen to have been flouted with impunity. There is nothing on record to show that the Police Inspector who conducted the raid, either recorded the substance of the information in a book kept for that purpose or referred the complainant to the Magistrate; instead he himself proceeded to the spot without the authorization of the Magistrate in blatant violation of Section 155 (2) of the Code.
20
13. Section 155 of the Code reads as under:
" S.155. Information as to non-
cognizable cases and investigation of such cases:
(1) When information is given to an officer-
in-charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-
cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. "
Even though the charge-sheet is laid against the petitioners, no material is available therein to show that any requisition was made to the Magistrate or any permission was obtained from the Magistrate authorizing the police officer to investigate into the alleged offences.
As a result, it has to be held that the investigation into the alleged offences under Ss.79 and 80 of the Police Act, S.15-A of the Karnataka Excise Act and submission of the 21 charge-sheet for the said offences and consequential summons issued to the petitioners being illegal and contrary to S.155(2) Cr.P.C. are liable to be quashed.
14. In similar fact situation, the Hon'ble Supreme Court in the case of KESHAV LAL THAKUR Vs. STATE OF BIHAR (1996) 11 SCC 551 has held that when the offence alleged against the accused is non-cognizable, the police could not have registered a case for such an offence under Section 154 of Cr.P.C. and consequently quashed the proceedings and the cognizance taken by the learned Magistrate upon the report submitted by the police.
15. The argument of the learned HCGP that the offence alleged against the petitioners included both cognizable and non-cognizable offence and therefore, authorization of the Magistrate was not necessary for the purpose of investigation is a self-defeating argument and begging the question. If the information received by the police officer related to cognizable offences, no discretion was left with the police officer except to register the FIR before embarking upon investigation. The contention urged by the learned HCGP has been answered by the 22 Constitution Bench of the Hon'ble Supreme Court in LALITA KUMARI's case(supra). Para 83 and 97 of the said decision afford an answer to the above plea in the following words:
83) In terms of the language used in Section 154 of the Code, the police is duty bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The legislative intent is therefore quite clear, i.e. to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action.
Xxxxx xxxxx
97) The Code contemplates two kinds of FIRs: The duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this 23 information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:
97.1.(a) It is the first step to "access to justice" for a victim.
97.2.(b) It upholds the "Rule of Law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
97.3.(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
97.4.(d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR.
16. In the light of the above principles, the decision relied upon by the learned HCGP in Crl.P. No.3073/2020 and connected matters dated 01.10.2020 would not help the respondent to defend the otherwise unlawful procedure followed by the respondent. In the said case what has been held is that "if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does 24 not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action."
17. In the instant case, undeniably the information received by the police officer disclosed the commission of non-cognizable offences and therefore, the police officer could not have embarked upon investigation in view of the bar contained in S.155 Cr.P.C. and therefore, the proceedings initiated against the petitioners being violative of mandatory requirement laid down under S.155 and S.154 of Cr.P.C. are liable to be quashed on that ground alone.
18. Coming to the offence under Section 15-A of the Karnataka Excise Act is concerned, the Section reads as under:
"15-A. Consumption or allowing consumption of liquor in unlicensed public places.-
No person being the owner or in charge of the management or control of any public place shall 25 allow consumption of liquor or no person shall consume liquor in any public place unless consumption of liquor in such place is permitted under a licence granted by the Excise Commissioner or the Deputy Commissioner." As per this Section, in order to attract the ingredients of the above offence, the offence should have taken place in a "public place" and the accused should have indulged in the consumption of liquor. In the instant case, both these essential elements are lacking.
19. According to the prosecution, the accused were found playing "three cards" game in the "party hall" of "Chetan International Hotel" and "room No.509" of Arafa Inn hotel. The question whether a room in a hotel is a "public place" came up for consideration of the Hon'ble Supreme Court in the case of DIRECTORATE OF REVENUE (supra) and the Hon'ble Supreme Court answered the question holding that "hotel is a public place, a hotel room inside is not a public place". This decision no doubt is rendered under S.42 of the NDPS Act but what is relevant to be noted is that in the explanation appended to S.43 of the NDPS Act, the term "public place" is defined as any public conveyance, hotel, shop or other place intended for 26 use by, or accessible to, the public. In the Karnataka Excise Act, Explanation (1) of S.15-A defines "public place"
as under:
Explanation 1.- For the purposes of this section and section 32 "public place" means any public office or any place of public amusement or resort, recreation centre or on board, any passenger boat or vessel or any public passenger vehicle or a dining or refreshment room in a restaurant or hotel where different individuals or groups of persons consume food, but shall not include any private residential room or private residential house.
20. As could be seen from the above explanation, a hotel or a room where different individuals or group of persons consume food is defined as public place. In the instant case, the very case of the prosecution is that the alleged activities were carried on by accused persons in the party hall booked by the accused. There is nothing on record to show that any consumption of food was going on in the said party hall or in room No.509 at the time of alleged offences. The very fact that the party hall and room No.509 were booked by accused No.53, would 27 indicate that they were inaccessible to public and therefore, even going by the definition given in explanation
(i) to Section 15-A, it can be safely held that the alleged offence had not taken place in any "public place" as defined in Section 15-A of the Karnataka Excise Act. As a result, the ingredients of the offence under Section 15-A of the Karnataka Excise Act also are not attracted to the facts of the case.
21. In so far as the charge under Section 20(b) of the NDPS Act is concerned, according to the prosecution, during the raid, they found a bag in room No.509 and on enquiry with accused No.1, he is stated to have admitted that the said bag belonged to him. According to the prosecution, the bag was searched by the ACP and he found 1.200 Kg of ganja leaves in a plastic bag and accordingly, it was seized under a panchanama and after returning to the Police Station, the FIR was registered against the petitioners for the above offences. This evidence even if it is accepted uncontroverted would not show that the alleged recovery was made from the possession of accused No.1. Reading of the charge-sheet indicates that accused No.1 is sought to be linked to the 28 alleged seizure based on his statement which is alleged to have been recorded prior to the registration of the case. This procedure apart from being violative of S.42 of the NDPS Act is also barred by Section 25 of the Evidence Act. Coming to the violation of Section 42 of the NDPS Act is concerned, as already stated above, the bag containing ganja leaves was found in room No.509. Admittedly it is not a "public place" as per the provisions of the Act. Therefore, compliance of S.42 was mandatory. S.42 of the NDPS Act reads as under:
"42. Power of entry, search, seizure and arrest without warrant or authorisation:
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or 29 controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or 30 psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under such section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
22. In SK. RAJU ALIAS ABDUL HAQUE ALIAS JAGGA's case (supra), the Hon'ble Supreme Court was pleased to observe as follows:
" 14. The cases relied on by the learned counsel for the appellant will also not apply in the context of the facts before us. In Mansuri ( (2000) 2 SCC
523), an autorickshaw driver was intercepted by police personnel. Four gunny bags of charas were recovered from the autorickshaw. The police officer who had prior information about transportation of some narcotic substance, had neither taken down the information before carrying out the seizure and 31 arrest, nor apprised his superior officer. He contended that the action taken by him was under
Section 43 and not Section 42. Rejecting the argument of the State, this Court held that compliance with Section 42 was required as the autorickshaw was a private vehicle and not a public conveyance as contemplated under Section 43. Similarly, in Jag Raj ((2016) 11 SCC 687), contraband was recovered from a jeep which was intercepted by police personnel on a public road after receiving prior information. The police officer who had received the information, admitted to not taking it down in writing, contending that Section 43 would be applicable. Rejecting the argument of the State, this Court held that the jeep which was intercepted, was not a public conveyance within the meaning of Section 43 and compliance with Section 42(1) was therefore mandatory. In Holia ( (2008) 2 SCC 370), Mandrax tablets were recovered from the hotel room of the respondent. The information was not reduced to writing by the officer who had first received the information. The State claimed that compliance with Section 42 was not required as the hotel was a public place. Rejecting the submission of the State, this Court held that while a hotel is a public place, a hotel room inside it is not a public place. This Court held thus: (SCC pp.377-78, para 14) " 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective 32 satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with ... It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefor coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy.
Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitled to maintain his privacy."
In view of the above provision, an empowered officer under Section 42(1) of the NDPS Act is obliged to reduce 33 to writing the information received by him, when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place. In the instant case, there is nothing in the entire charge-sheet to indicate that on getting information from accused No.1, either the complainant or the Police Inspector either took down the information in writing or conveyed the said information to his higher officer within 72 hours as mandated in S.42 of the NDPS Act. Non compliance of this mandatory requirement has totally vitiated the seizure.
23. That apart, there is no material whatsoever to show that accused No.1 was in possession of either the bag or the contraband substance. Except the so-called statement of accused No.1, no other independent material is available on record to connect accused No.1 to the alleged seizure. This statement is inadmissible in evidence. As a result no worthwhile material is available to show the complicity of the accused in the offence under Section 20(b) of NDPS Act.
24. Thus on consideration of all the above facts and circumstances I am of the view that the prosecution 34 launched against the petitioners is without any legal basis and contrary to the provisions of the Excise Act and NDPS Act and in the said circumstances, continuation of the prosecution against the petitioners would amount to abuse of process of Court. For the said reasons, the impugned action deserves to be quashed.
Accordingly, the petition is allowed. The prosecution initiated against the petitioners in Spl. CC No.31/2015 (Crime No.236/2014) on the file of learned XXXIII Addl. City Civil and Sessions Judge and Spl. Judge for NDPS Cases at Bangalore and the impugned order dated 20.01.2015 for the alleged offences under Section 15-A of the Karnataka Excise Act, 1965, Sections 79 and 80 of the Karnataka Police Act and Section 20(b) of the NDPS Act are quashed.
In view of the disposal of the main matter, I.A.1/2015 does not survive for consideration. Accordingly, it is dismissed.
Sd/-
JUDGE sac*