Uttarakhand High Court
Dinesh Chandra vs State Of Uttarakhand on 6 January, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
8IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 1000 of
2021
Dinesh Chandra ...... Petitioner
Vs.
State of Uttarakhand ..... Respondents
Mr. Tapan Singh, Advocate for the petitioner.
Mr. Pratiroop Pandey, D.A.G. for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Challenge in this petition is made to the chargesheet dated 15.09.2020 and cognizance order dated 18.09.2020 passed in Criminal Case No. 3128 of 2020, State Vs. Dinesh Chandra and others, by the court of Judicial Magistrate/First Additional Civil Judge (Jr. Div.), Roorkee, District Haridwar. (for short "the case") as well as the entire proceedings of the Sessions Trial No. 76 of 2021, State Vs. Dinesh Chandra and others, under sections 419, 420, 274, 275, 276 IPC and sections 17/27, 18 (a) (vi)/27, 18(c)/27 and 28 of the Drugs and Cosmetics Act, 1940 and section 63 of Copyright Act, 1957. ("the sessions trial") 2
2. Heard learned counsel for the parties and perused the record.
3. Facts, necessary to appreciate the controversy are as hereunder;
Respondent no. 2 Manendra Singh Rana (the informant) was a drug inspector at the relevant time. On 25.02.2020, he received an information with regard to manufacturing of spurious drugs. He raided a premises. There was a board on the building namely M/s Juniper Formulation Village Chudiawala, Mohanpur, Bhagwanpur, District Haridwar ("M/S Juniper Formulation"). A person present in the premises opened the lock. Inside the premises, the informant and other team members found manufacturing of the drugs. Mr. Vikas Kumar was present at the spot. He admitted that they do not have any license to manufacture drugs and according to him, the owner of the firms had been manufacturing drugs for the last many years. During the course of inspection, the informant noticed a staircase placed on a wall. When he climbed the stair, they saw some other rooms which were locked. Vikas Kumar was asked to open the locks, but, he would submit that the keys are with the owners of the firms. The owners of the firms did not respond to the phone calls made by the informant. The lock was broken and 3 when the informant and his team members entered into the room, they found huge quantity of drugs. The detail is written in the recovery memo. A partnership deed between petitioner and two other persons was also recovered by the informant, which revealed that the petitioner and two other persons were partners in M/s Juniper Formulation. The petitioner and the partners were contacted, but, they did not appear at the time of inspection. A search memo was prepared and FIR was lodged accordingly. It is this FIR, in which, after investigation, chargesheet no. 1 of 2020 was submitted by Police Station Bhagwanpur against the petitioner and others. Cognizance was taken on it and the case was committed for trial to the court of sessions. The proceedings are impugned in this petition.
4. Learned counsel for the petitioner would submit that nothing was recovered from the premises taken on rent by the petitioner. Recovery was made from the premises owned by Prathu Nath Tyagi, who had leased it out to a Javed. Learned counsel would submit that no offence is made out against the petitioner. Therefore, the proceedings deserves to be quashed. He would refer to the contents of the FIR as well as the site plans prepared by the investigating officer ("IO") and lease deeds allegedly executed in the 4 name of the petitioner as well as the lease deed executed between Prathu Kumar Tyagi and a Javed.
5. On the other hand, learned State Counsel would submit that the owner of the premises from where the spurious drugs were recovered, had told it to the IO that at the instance of the petitioner, he had rented out the premises to a Javed, but, rents for two months was paid by the petitioner and thereafter, the premises was raided. It is argued that, in fact, it is the petitioner, who was involved in the manufacture of the spurious drugs. The issues which have been raised, pertains to factual aspects of the matter, which cannot be gone into in these proceedings under section 482 of the Code of Criminal Procedure, 1973 (for short "the Code").
6. Learned State Counsel also referred to the statements of Vikas Kumar, Prathu Kumar Tyagi and others, recorded by the IO.
7. At this, learned counsel for the petitioner would submit that, in fact, Prathu Kumar Tyagi is not a witness in the chargesheet, therefore, his statement cannot be taken in support of the argument by learned State Counsel.
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8. Learned State Counsel would submit that during trial, Prathu Kumar Tyagi may be called as a witness because he has been examined during investigation.
9. This is a petition under section 482 of the Code. If offences are disclosed, generally, interference is not warranted. Meticulous examination of the evidence is not done at this stage. This jurisdiction is quite wide, but, much restricted by the guidelines as laid down by the Hon'ble Supreme Court. In the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court discussed the jurisdiction under Section 482 of the Code and observed as hereunder:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an 6 exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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. (2) 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.
(3) 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.
(4) 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.
(5) Where the allegations made in the FIR or complaint. are 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
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(7) Where a criminal proceeding is manifestly attended with mala fide 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."
10. Learned counsel for the petitioner's sole argument is with regard to the premises from where allegedly the spurious medicines were recovered. According to him, this premises belongs to Prathu Kumar Tyagi, who had rented it out to a Javed. Learned counsel has also referred to the principle of law, as laid down by Hon'ble Supreme Court in the case of Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 1 Supreme 55. He would refer to paragraph 14 the of it, which is as hereunder;
"14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant."8
11. This paragraph has been referred to by learned counsel for the petitioner to argue that, in fact, nothing was recovered from the possession of the petitioner.
12. Site plan has been filed by the petitioner himself, which as per FIR, reveals that there were two rooms adjacent to each other. In fact, one wall is common. The premises falling on the northern side, as per learned counsel for the petitioner, was taken on lease by the petitioner. But, the premises, which falls on the southern side, did not belong to the petitioner. Instead, it was taken on lease by a Javed from Prathu Kumar Tyagi. Prathu Kumar Tyagi, has categorically in his statement recorded under 161 of the Code, told it to the IO that at the instance of the petitioner, he had rented out one room to Javed, but, thereafter, for two months, the rent was paid by the petitioner.
13. It is true that Prathu Kumar Tyagi has not been named as a witness in the chargesheet. But, as argued on behalf of the State, this possibility cannot be denied that the prosecution may call Prathu Kumar Tyagi during trial.
14. During the raid, it is the case in the FIR that a partnership deed was recovered, which revealed 9 that the petitioner was a partner in M/s Juniper Formulation with two other partners. In fact, Manendra Singh Rana has been examined, during investigation. He has reiterated the prosecution case. According to him, Vikas Kumar had told at the time of inspection that the keys of the rooms, which were locked, was with the owners of the firm. The doors were opening in the premises admittedly taken on lease by the petitioner. Informant tells it to the IO that when the owners of the firms were telephonically contacted, they did not respond. From that room, spurious drugs were recovered. Vikas Kumar has also been examined by the IO. He would also tell that when the room adjacent to the accompanying room was raided, medicines were recovered. He admits that he had broken the lock. The chargesheet records that the medicines which were recovered, were spurious, as per the reports of analyst.
15. Whatever arguments have been raised on behalf of the petitioner, they definitely touches the factual aspect of the matter. It is admitted on behalf of the petitioner that Vikas Kumar was guarding the premises, which was taken on rent by the petitioner. But, what is being argued is that the adjacent premises did not belong to the petitioner. But, as stated, the adjacent premises were locked from the side of the 10 premises, which was taken on lease by the petitioner. Does it mean that the petitioner was operating from the adjacent premises? Prathu Kumar Tyagi is though not named in the chargesheet. Fact remains, he told it to IO that at the instance of the petitioner he had rented out the premises to a Javed. He also told it to IO that for two months' rent was given by the petitioner. This possibility can also not be ruled out that tomorrow during trial, prosecution may call Prathu Kumar Tyagi as a witness. Therefore, this Court cannot, at this stage, record any finding with regard to merits of the case. There are disputed questions of facts. Prima facie, case has been disclosed in the FIR and after investigation, the IO has submitted the chargesheet. The involvement of the petitioner has been found in the commission of the offences.
16. Accordingly, this Court is of the view that there is no reason to make any interference in the matter and the petition deserves to be dismissed.
17. The petition is dismissed.
18. At this stage, learned counsel for the petitioner would submit that petitioner may be given liberty to raise all these valid arguments at the time of framing of the charge. Need not to say, petitioner is at 11 liberty to take defences during trial, as are permissible under law.
(Ravindra Maithani, J.) 04.01.2022 Ujjwal