Himachal Pradesh High Court
No vs State Of Maharashtra And Others on 14 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
ON THE 14th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO.3167 OF 2021
Between:-
ARPITA, AGED 48 YEARS, WIFE OF MOHNISH
MOHAN, RESIDENT OF HOUSE NO. 230/2 WARD
NO.10, SHAKTI COLONY, DEVI NAGAR (115),
POANTA SAHIB, DISTRICT SIRMOUR, HIMACHAL
PRADESH. ...PETITIONER
(BY SH. PANKAJ BHARDWAJ, SH. P.P. CHAUHAN,
SH. MUNISH THAKUR AND SH. R.L. VERMA,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH THROUGH ITS
CHIEF SECRETARY, DEPARTMENT OF HOME
AFFAIRS, CIVIL SECRETARIAT, SHIMLA.
2. THE PRINCIPAL SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WELFARE, CIVIL
SECRETARIATE, SHIMLA.
3. THE DRUGS CONTROLLEER DEPARTMENT OF HEALTH
AND FAMILY WELFARE, SHIMLA.
4. THE DIRECTOR GENERAL OF POLICE, PUNJAB
POLICE HEADQUARTERS, SECTOR-9, CHANDIGARH.
5. DHRUV DAHIYA S/O PARENTAGE NOT KNOWN
PRESENTLY SENIOR SUPERINTENDENT OF POLICE,
DISTRICT AMRITSAR RURAL.
::: Downloaded on - 31/01/2022 23:04:08 :::CIS
6. LOVERPREET SINGH S/O PARENTAGE NOT KNOWN
PRESENTLY STATION HOUSE OFFICER, P.S.
MATTEWAL, DISTRICT AMRITSAR RURAL.
.
7. GURVINDER SINGH S/O PARENTAGE NOT KNOWN
PRESENTLY SUB-INSPECTOR, P.S. MATTEWAL,
DISTRICT AMRITSAR RURAL.
8. SUKHDEEP SINGH, S/O PARENTAGE NOT KNOWN
PRESENTLY DRUG INSPECTOR, DEPARTMENT OF OF
HEALTH AND FAMILY WELFARE, TEHSIL AND
DISTRICT AMRITSAR.
9. AMARPAL MALLI, S/O PARENTAGE NOT KNOWN
PRESENTLY DRUG INSPECTOR, DEPARTMENT OF
HEALTH AND FAMILY WELFARE, TEHSIL AND
DISTRICT AMRITSAR.
(BY SH.ASHOK SHARMA, ADVOCATE GENERAL WITH SH.
RAJINDER DOGRA, SR. ADDL. A.G., SH. VINOD THAKUR, SH.
SHIV PAL MANHANS, MR. HEMANSHU MISRA, ADDITIONAL
ADVOCATES GENERAL AND SH. BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL FOR R-1 to 4.
RESPONDENTS NO. 5 TO 9 STAND DELETED VIDE COURT
ORDER DATED 05.07.2021)
Reserved on : 03.09.2021
Decided on : 14.09.2021
_________________________________________________________________
This petition coming on for hearing this day Hon'ble
Mr. Justice Satyen Vaidya, passed the following: -
ORDER
By way of instant petition, petitioner has prayed for the following reliefs:-
(i) Issue a Writ in the nature of Mandamus directing the official respondents to protect the life and liberty the petitioner, her family and safety of their property, which is under direct attack and threat of the Punjab ::: Downloaded on - 31/01/2022 23:04:08 :::CIS Police, who have illegally detained her husband, seized the factory and have taken away medicine worth lacs without any authority of law;
.
(ii) For the issuance of appropriate directions to the respondents to immediate release husband of the petitioner who is in illegal detention of the Punjab Police;
(iii) For the issuance of appropriate directions to the respondents to ensure that the accounts books of the factory are not destroyed by Punjab Police to build up a false case against her husband and for directing immediate unlocking of the factory and release of manufactured drugs illegally seized by the Punjab r Police;
(iv) For issuance of appropriate directions to the respondents to stay further proceedings against the petitioner and her daughter till the pendency of the present petition.
2. Petitioner is the wife of Mohnish Mohan who is one of the accused arrayed in FIR number 51(for short, "FIR 51") dated 18.5.2021 registered under Sections 22 & 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act"), at Police Station, Mattewal, District Amritsar (Rural), Punjab and is presently in judicial custody. She has approached this Court on the premise that Mohnish Mohan has been illegally arrested and she also apprehended her as well as her daughter's arrest.
3. As per the case of the petitioner, her husband runs a business in the name and style of Unique Formulations registered as ::: Downloaded on - 31/01/2022 23:04:08 :::CIS an "MSME" at Paonta Sahib District Sirmour, H.P. and has obtained licenses from competent authority under the Drugs and Cosmetics .
Act (for short, "D&C Act") and Rules framed thereunder (for short, "D&C Rules") to manufacture and sell the drugs.
4. The arrest of Mohnish Mohan has been alleged to be in violation of his fundamental rights. It is stated that the drugs recovered in aforesaid F.I.R. were sold by Unique Formulations to M/S Mansi Medicos, New Delhi against proper invoices. It is further contented by petitioner that after the receipt of consignment of medicines by the consignee, Unique Formulations or Mohnish Mohan were not responsible, if the drugs supplied by them had found their way out.
5. Petitioner has further alleged that the raid conducted by Punjab Police, in the premises of Unique Formulations, was absolutely illegal and unauthorized. Manufactured drugs worth more than Rupees fifty lakhs were alleged to have been seized illegally along with books of accounts including bills/ demand orders/supply orders etc. The conduct of the raiding party comprising of police officials and Drug Inspectors has been assailed as an act of sheer high handedness.
6. Accusation of false implication of Mohnish Mohan for malafide and extraneous motives have also been made. It is ::: Downloaded on - 31/01/2022 23:04:08 :::CIS alleged that police did not follow the mandatory provisions of Section 42 and 50 of NDPS Act while conducting raid and seizure in .
the premises of Unique Formulations.
7. On notice, the respondents have contested the allegations and claim of the petitioner. During the course of proceedings in the instant petition, status reports have been filed from time to time on behalf of responsible officers of respondents and thereby It has been brought to the notice of this Court as under:
7.1 F.I.R. 51 was registered on a secret information, which was found to be correct and huge quantity of approximately 50,000 (fifty thousand) tablets of Tramadol Hydrochloride Tablets IP Clocidol-100 SR were seized (for short, "seized drugs") from three persons, namely, Sameer Kumar, Suraj Kumar and Gurmukh Singh within the jurisdiction of PS Mattewal, Punjab.
7.2 The seized drugs were found to have been manufactured by Unique Formulations, Paonta Sahib, Himachal Pradesh vide batch No. UFT-042 and UFT-043 and sold to M/S Mansi Medicos, New Delhi. It was also found that seized drugs, in fact, were marketed through PB Pharmaceuticals, Raj Tower 3rd Floor, Hauz Khas, New Delhi.
7.3 On this lead, the factory premises of Unique Formulations was searched on 27.05.2021 by Punjab Police by associating officials ::: Downloaded on - 31/01/2022 23:04:08 :::CIS of Drug Departments of Punjab and Himachal Pradesh. It was noticed that the manufacturing process was being carried out .
without the supervision of technical staff as required. Mohnish Mohan who was present in the factory premises, disclosed his identity as the Manager and Incharge of factory. As per him, the drugs seized by police, during investigation of F.I.R. No.51 of 2021, were sold by him to Mansi Medicos, New Delhi, through Ranu Bhargav, but when the police made Mohnish Mohan to call Ranu Bhargav on mobile phone, said Ranu Bhargav denied having placed any order with Unique Formulations or having received the drugs in question. A huge stock of finished goods was found kept in different sections of the factory, which was in violation of the rules.
As per report of the Drug Inspector, Himachal Pradesh a huge quantity of more than nine lakh tablets was found stored in the factory premises of Unique Formulations in unauthorized manner.
Thus, violations of license as well as provisions of "D&C Act" and "D&C Rules" were found against Unique Formulations. Assistant Drug Controller-cum-Licensing Authority, Himachal Pradesh also visited the spot and issued stop production and show cause notice under the D&C Act.
::: Downloaded on - 31/01/2022 23:04:08 :::CIS7.4 The investigation team on the basis of available material arrayed Mohnish Mohan as accused in FIR No.51 and he was .
placed under arrest on 28.5.2021.
7.5 Further investigation revealed that PB Pharmaceutical was a non-existent entity. Neither there was any building by the name of Raj Tower nor was any business premises of PB Pharmaceuticals in existence in Hauz Khas, New Delhi.
7.6 During investigation, Police is stated to have recorded the statements of Mohnish Mohan under Section 67 of NDPS Act.
7.7 It has also been disclosed that after registration of FIR 51, approximately 30,61,000 intoxicating tablets/capsules were seized by the Narcotic Control Bureau, Delhi Zonal Unit which resulted in registration of a case vide CR No. XIII/227/DZU/2021 dated 2.06.2021.
The seizure included 92,000 Tramadol Hydrochloride Tablets 100 mg IP Clocidol, 1,23,800 Tramadol Tables (Batch No. UFT-33), 1,86,400 Tarmadol tables (Batch No. UFT-32) and 2,370 bottles of Codeine based syrup manufactured by Unique Formulations.
7.8 In addition another case vide F.I.R. No.119 dated 14.07.2021 under Section 22/61/85 of NDPS Act has been registered at Police Station Lalru, District SAS Mohali, Punjab against Ashok Kumar and Kala Ram. The drugs recovered in said case were also found to have been manufactured by Unique Formulations and ::: Downloaded on - 31/01/2022 23:04:08 :::CIS Mohnish Mohan has also been arrayed as an accused by Lalru Police. In addition, a case under NDPS Act has also been registered .
at Paonta Sahib Police Station against Mohnish Mohan vide FIR No. 66/2021 dated 30.5.2021.
8. We have heard the learned counsel for the petitioner and learned Senior Additional Advocate General for the respondents and have also gone through the records.
9. During the proceedings of the case, no material has been placed on record or even suggested on behalf of the petitioner which may lend credence to her alleged apprehension of being arrested along with her daughter in FIR 51. Similarly, nothing has been brought on record to show that the petitioner had ever been threatened of any illegal violations against the properties belonging to the petitioner or her family.
10. The entire stress of the submissions made for petitioner was on the alleged illegal detention of Mohnish Mohan. It has been emphasized that Mohnish Mohan sold the manufactured drugs to authorized distributor i.e. Mansi Medicos in lawful manner, therefore, no offence was committed by him much less any office under the NDPS Act.
11. During the course of hearing of the case, learned counsel for the petitioner on asking of the Court produced two ::: Downloaded on - 31/01/2022 23:04:08 :::CIS empty packing boxes of Tarmadol Prolonged Release Tablets IP Roldal-Tab and Tramadol Hydrochloride Tablets IP Clocidol-100 SR .
respectively. It has been clearly printed on the empty packing box of Tramadol Hydrochloride Tablets IP Clocidol-100 SR "marketed by PB Pharmaceuticals, Raj Tower 3rd Floor Hauzkhas, New Delhi-
110016". Whereas, the Investigating agency has found the address and entity of PB Pharmaceuticals to be fake.
12. On a query to learned counsel for the petitioner during the course of hearing, it has been represented that "PB Pharmaceuticals" was not marketing agent of Unique Formulations and it was introduced as an agent of Mansi Medicos by Ranu Bhargav while placing the order. According to petitioner PB Pharmaceutical is a marketer of M/S Mansi Medicos and not of Unique Formulations and thus no culpability can be fastened on Unique Formulations or Mohnish Mohan. Further contention of the petitioner is that label design is decided and approved by purchaser/distributor/wholesaler and in the present case, the same has been approved by Ranu Bhargav.
13. The explanation provided on behalf of the petitioner is not at all convincing for more than one reason. In case PB pharmaceutical was not the agent of Unique Formulations, why its name was printed on the packing box of the drugs manufactured ::: Downloaded on - 31/01/2022 23:04:08 :::CIS by it. It has also been revealed during the investigation, as brought to the notice of this Court, that at the time of the search conducted .
in the factory premises of Unique Formulations, number of empty boxes with PB Pharmaceutical's name printed on them as marketing agent were found. The petitioner has no explanation to account for existence of such packaging material in factory premises of Unique Formulations.
14. The drug r Tramadol is a Psychotropic substance mentioned at entry 110Y in the schedule appended to NDPS Act.
15. Section 8 of the NDPS Act prohibits certain operations which include prohibition to produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter State, export, inter State, import into India, export form India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of NDPS Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization.
16. Section 22 of NDPS Act makes manufacturing, possession, sale, purchase, transport, import inter-state, export inter-
state or use of any psychotropic substance in contravention of any ::: Downloaded on - 31/01/2022 23:04:08 :::CIS provision of NDPS Act or any rule or order made or condition of licence granted thereunder punishable with rigorous imprisonment .
for a term not less than ten years but which may extend to twenty years and also with fine not leas than rupees one lakh but which may extent to rupees two lakhs in the case the quantity is commercial.
17. Section 80 of the NDPS Act lays down that the provision of NDPS Act or the Rule made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 or the Rules made thereunder.
18. Rule 65A of NDPS Rules provides that no person shall sell, purchase, consume or use any psychotropic substance except in accordance with Drugs and Cosmetics Rules, 1945.
19. Rule 67 of NDPS Rules further provides that no consignment of psychotropic substance shall be transported, imported inter-State or exported inter-State unless such consignment is accompanied by a consignment note in Form 6 appended to these rules and in the manner as provided thereunder.
20. Condition number 2 of the licences to manufacture drugs held by Unique Formulations reads as under:
"2. The licence authorizes the sale by way of wholesale dealing and storage for sale by the licensee of the drug manufactured ::: Downloaded on - 31/01/2022 23:04:08 :::CIS under the licence subject to the conditions applicable to licence for sale."
.
21. An amendment has been carried out in the D&C Rules vide notification published in the Gazette of India on 11.02.2020.
One of the amendments made thereby is in Rule 2 of the Drugs and Cosmetics Rules. Existing clause (ea) has been re-lettered as clause (eb) and before clause (eb) as so re-lettered, following clause has been inserted, namely: -
'(ea) "Marketer" means a person who as an agent or in any other capacity adopts any drug manufactured by another manufacturer under an agreement for marketing of such drug by labeling or affixing his name on the label of the drug with a view for its sale and distributions'.
In the said rules, after rule 84-C, the following rules have been inserted, namely: -
"84D. Agreement for marketing: - No marketer shall adopt any drug manufactured by another manufacturer for marketing of such drug by labeling or affixing his name on the label of the drug with view for its sale and distribution without an agreement as referred to in clause (ea) of Rule 2.
84E. Responsibility of marketer of the drugs:- Any marketer who sells or distributes any drug shall be responsible for quality of that drug as well as other regulator compliances with the manufacturer under these rules."
Further in the said rules, in Rule 96, after sub-clause (xii) of clause (1), the following sub-clause has been inserted: -
::: Downloaded on - 31/01/2022 23:04:08 :::CIS"(xiii) The name of the marketer of the drug and its address, in case the drug is marketed by a marketer:
Provided that if the drug and is contained in an ampoule or .
a similar small container, it shall be enough if only the name of marketer is shown.".
The above noted amendments have been made effective from 1.3.2021.
22. The amended rules, as noticed above, explicitly provide that in case of manufactured product to be marketed through marketer there has to be a pre exiting agreement between the manufacture and marketer. The rules do not provide for the requirement of distributor/wholesaler in the said process.
23. Petitioner has placed reliance on certain documents vide which the drugs in question were allegedly supplied by Unique Formulations to M/S Mansi Medicos, Delhi in May 2021. It is thus clear that the transaction in question was made after above noticed amendments came into effect.
24. The non-compliance of above noted provisions of law, is evident from the material on record. Unique formulations had no authority to sell the drugs except by way of wholesale but the drugs were found in bulk in the hands of unauthorized persons. Similarly, when there is no entity in the name of PB Pharmaceuticals, the requisite agreement between manufacturer and the marketer would not have existed.
::: Downloaded on - 31/01/2022 23:04:08 :::CIS25. The argument of the petitioner that PB Pharmaceutical, in fact, was the marketing agent of Ms Mansi Medicos does not hold .
good because it is the packaging box of the drugs manufactured by Unique Formulation that contained the printed name of PB Pharmaceutical as marketer. That being so, it is difficult to agree with the contention of the petitioner.
26. The petitioner alleges to have sold the drugs to Ms. Mansi Medicos, a licensed wholesaler/distributor and has tried to persuade this Court to believe that PB Pharmaceutical was the marketer of M/S Mansi Medicos. We have already expressed ourselves by making observations hereinabove that plea of the petitioner is not worth credence at this stage. There is sufficient material to show prima facie violation of the Drugs and Cosmetics Rules, by Unique Formulations and Mohnish Mohan, therefore, it cannot be said that the husband of the petitioner is entitled for a clean chit in the entire episode. Prima facie it cannot be said that implication of Mohnish Mohan in FIR 51 is without any justifiable reasons.
27. The umbrella of protection under the Drugs and Cosmetic Act and the rules framed thereunder, which the petitioner claims for her husband, vanishes, the moment the provisions contained under the said Act and Rules are not complied with or infringed or violated by the holder of the license. Merely holding a ::: Downloaded on - 31/01/2022 23:04:08 :::CIS license under the Drugs and Cosmetic Act and the Rules framed thereunder does not provide immunity from the rigors of the .
applicability of the NDPS Act and Rules framed thereunder.
28. In addition to above, it cannot remain unnoticed that case registered vide F.I.R. No. 51 dated 18.05.2021 at Police Station Mattewal, Amritsar (Rural) is not solitary instance where the drugs manufactured by Unique Formulations have been found in bulk in unauthorized and illegal possession of person, who have been booked under NDPS Act. Narcotic Control Bureau Delhi Zone, has also seized huge quantity of drugs manufactured by Unique Formulations and so has been done by officials of Police Station Lalru in Punjab vide FIR No.119 dated 14.07.2021. Another F.I.R. at Police Station Paonta Sahib under the NDPS Act vide No. 66 of 2021 dated 30.05.2021 is also pending investigation, in which also the petitioner is one of the accused.
29. In the case in hand the F.I.R. has been registered at Mattewal, District Amritsar (Rural) in Punjab, the scope of investigation would be in relation to the seizure of drugs recovered in pursuance thereto. The seized drugs were manufactured by Unique Formulations and Mohnish Mohan being owner of such concern has been arrayed as accused probably with the aid of Section 29 of the NDPS Act, which reads as under: -
::: Downloaded on - 31/01/2022 23:04:08 :::CIS"29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of .
such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which--
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
30. The petitioner has not sought any relief in the present petition with respect to the legality of F.I.R. 51 dated 18.05.2021 registered at Mattewal, District Amritsar Rural in Punjab. Once the legality of F.I.R. is not under challenge, the simpliciter prayer for release of her husband by petitioner cannot be maintained.
31. Merely because petitioner has alleged the detention of her husband to be illegal will not suffice. Mohnish Mohan is in judicial custody by virtue of remand orders passed by the Court of competent jurisdiction from time to time.
32. No material has been placed on record to suggest even remotely that the petitioner or her daughter have ever remained under any threat as alleged by them in the petition. Respondents in their status reports have not shown any inclination to array the ::: Downloaded on - 31/01/2022 23:04:08 :::CIS petitioner or her daughter as accused in the case. The apprehension, thus expressed by petitioner appears to be just a .
pretext to prepare cause of action for filing of the instant petition.
The cause of action so pleaded by petitioner in respect of herself and her daughter has been found to be baseless and without any substance, therefore, no inference is called for in respect of the prayers made regarding petitioner and her daughter. As regards Mohnish Mohan, it has already been observed hereinabove that the material on record prima facie implicates him in offences under the provisions of NDPS Act
33. The intent of the petitioner in filing the instant petition is also not beyond shadow of doubt. Evidently, Mohnish Mohan has not made any effort to seek bail under the provision of 439 of Code of Criminal Procedure from the Court of competent jurisdiction, for the reasons that the rigors of Section 37 of NDPS Act would impede his effort. In case, Mohnish Mohan has not made any effort for his release on bail under Section 439 of Code of Criminal Procedure, invocation of extra ordinary jurisdiction of this Court only for the purpose his release can only be termed to be an abuse of process of the law.
34. As per stand of respondents, eighteen persons including Mohnish Mohan have been arrayed as accused in F.I.R. 51 dated ::: Downloaded on - 31/01/2022 23:04:08 :::CIS 18.05.2021 and most of them have been arrested. It is also contended by respondents that whole circle of drug dealers/drug .
peddlers has been exposed and the police has been successful in completing the circle of the drug peddlers.
35. Learned counsel for the petitioner has placed reliance upon judgment passed by Hon'ble Supreme Court Arnab Manoranjan Goswami vs. State of Maharashtra and others, (2020) SCC online SC 964. With due deference to the law laid down in the said judgment, the same is clearly distinguishable on facts in present case. In Arnab Manoranjan Goswami's case Hon'ble Supreme Court was dealing with the question of release of appellant therein as interim measure in a petition filed before Bombay High Court for quashing the F.I.R. in the said case. In the present case, there is no challenge to the F.I.R. as such. The judgment noticed hereinabove will otherwise not serve the cause of petitioner as the prima facie complicity of petitioner in the instant case has been found to exist for offences under Section 22 and 29 of NDPS Act. The quantity involved in the case is commercial for which very severe punishment, as noticed above, is prescribed. The rigors of Section 37 of NDPS Act also stare at the face of petitioner.
36. In the recent judgment passed by three Judges Bench of Supreme Court in Criminal Appeal No. 330 of 2021 titled as M/s ::: Downloaded on - 31/01/2022 23:04:08 :::CIS Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and other, it has been concluded as under:-
.
Conclusions:
23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or ::: Downloaded on - 31/01/2022 23:04:08 :::CIS genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial .
stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR.
Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
::: Downloaded on - 31/01/2022 23:04:08 :::CISxiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
.
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while ::: Downloaded on - 31/01/2022 23:04:08 :::CIS dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the .
opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
37. Learned Counsel for the petitioner has also placed on record a compendium of judgments passed in cases of Hema vs. State through Inspector of Police, Madras 2013 (10) SCC 192, Babubhai vs State of Gujrat & Others 2010 (12) SCC 254, Darbara Singh vs State of H.P. 2012 (10) SCC 476, Rafiq Ahmad @ Rafi vs State of U.P. 2011 (8) SCC 300, Vinubhai Haribhai Malviya Vs. State of Gujrat, Alchemist Ltd & another vs SBI & others and Nawal Kishore Sharma vs. Union of India 2014 (9) SCC 329.
Last two judgments noted above, are relatable to territorial jurisdiction of the High Court under Article 226 of the ::: Downloaded on - 31/01/2022 23:04:08 :::CIS Constitution of India. In the instant case, this Court has entertained the petition and the same is being decided on the merits. As regards .
the other judgments cited on behalf of petitioner, we are at pains to observe that none of them is relevant for issues involved in the present petition.
38. As far as the issues involved in the present case are concerned, reliance can be placed on judgments passed by Hon'ble Supreme Court in Union of India v. Sanjeev V. Deshpande 13 SSC 2014, in which Hon'ble Supreme Court in paras 25 and 26 has held as under: -
"25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.
26. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances."::: Downloaded on - 31/01/2022 23:04:08 :::CIS
39. In light of above discussion, we find no merit in the petition and the same is dismissed with no orders as to costs.
.
Pending miscellaneous applications, if any, are also disposed of accordingly.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge September 14, 2021 (ravinder) ::: Downloaded on - 31/01/2022 23:04:08 :::CIS