Telangana High Court
Sai Vishwajeet Shaw, vs The State Of Telangana, on 24 November, 2023
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
CRIMINAL PETITION NO.5562 OF 2023
ORDER
This petition is filed seeking quashing of the charge sheet in C.C.No.3037 of 2022 on the file of the IV Additional Metropolitan Magistrate-cum-IV Additional Junior Civil Judge, Ranga Reddy District at L.B.Nagar as against the petitioner/Accused No.3.
2. Brief facts are that respondent No.2 had complained that on 12.05.2021 at about 18.15 hours, the complainant along with patrol mobile-II staff was performing patrolling duty at Kothapet area and during the said process, they received credible information that two persons were selling Remdesivir Covid-19 emergency injections/medicines for higher price, i.e., each injection for an amount of Rs.20,000/- to the needy patients at Fruit Market, Kothapet, Chaitanyapuri and the same was informed to their superior officers and that the complainant secured two mediators and along with his staff rushed to the spot and caught accused 2 and 3 red-handedly with five Remdesivir injections and on enquiry, the accused revealed their names Crl.P.No.5562 of 2023 2 and on the instructions of accused 1 and 4, they were selling the above injections for an amount of Rs.20,000/- each to needy customers. Pursuant to the confession made by the accused, five Remdesivir and three mobile phones, i.e., three Remdesivir injections, I-Phone and One Plus phone from accused No.2 and two Remdesivir injections and one Vivo mobile phone from accused No.3 were seized. Thereafter, a crime under Sections 420, 188 read with Section 34 of IPC and Section 51B of the Disaster Management Act, 2005 was registered. It is submitted that thereafter, the official respondent filed charge sheet on 29.03.2022 reaffirming the above position. Seeking quashing of the same, the present Criminal Petition is filed by Accused No.3.
3. Learned counsel for the petitioner submitted that the petitioner/Accused No.3 was working as an Accountant in a Pharmaceutical Company and was found holding two vials of Remdesivir which act was not prohibited by any of the authorities and the complaint was also not given by a public servant under Section 195(1) of Cr.P.C. and therefore, the allegation of the offence under Section 188 of IPC is not sustainable. In support of the said contention, Crl.P.No.5562 of 2023 3 he placed reliance upon the judgment of this Court in the case of Pupala Srinadh Srinath Vs. The State of Telangana and another 1 and also the case of the Madurai Bench of Madras High Court in the case of Jeevanandham and others Vs. State rep. by Inspector of Police, Velayuthampalayam Police Station, Karur District 2.
4. Further, in respect of applicability of Section 51B of the Disaster Management Act, 2005 to this case, the learned counsel for the petitioner submitted that the said provisions are not attracted to the case on hand as there were no prohibitory orders issued by any of the authorities, leave alone the State or the Central Governments. In support of this contention, he placed reliance upon the judgment of the Chhattisgarh High Court in the case of Dr. Santosh Kumar Patel Vs. State of Chhattisgarh and others 3.
5. As regards the provisions of Section 420 of IPC, the learned counsel for the petitioner submitted that the respondents have not brought on record any evidence to show that the petitioner intended to 1 Criminal Petition Nos.11371, 11374 and 11377 of 2022 dt.27.12.2022 2 Crl.O.P.No.1356 of 2018 and batch dt.20.09.2018 3 W.P.(Cr.)No.332 of 2020 dt.14.12.2020 Crl.P.No.5562 of 2023 4 sell the said injections or that the petitioner had entered into any agreement with any party at the price mentioned in the FIR. It is submitted that merely because the petitioner was possessing two vials of Remdesivir, if at all, it can only be presumed that the petitioner intended to sell the injections and having a mere intention or an attempt to sell, itself does not attract an offence under Section 420 of IPC. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case of N. Raghavender Vs. State of Andhra Pradesh, CBI 4 in support of this contention.
6. The learned counsel for the petitioner/Accused No.3 therefore sought quashing of the charge sheet against the petitioner.
7. Sri S.Ganesh, learned Assistant Public Prosecutor vehemently opposed the said contentions and submitted that the petitioner was caught red-handed with the vials of Remdesivir and he intended to sell them at a higher price to make money and therefore, the provisions of Section 420 of IPC were clearly attracted to the case on hand. He also 4 2021 SCC OnLine SC 1232 Crl.P.No.5562 of 2023 5 supported the registration of case under Section 188 read with Section 34 of IPC.
8. Having regard to the rival contentions and the material on record, this Court finds that the issue of maintainability of the charge sheet under Section 188 of IPC is clearly covered by the judgment of this Court in the case of Pupala Srinadh Srinath Vs. The State of Telangana and another (1 supra) and also the case of the Madras High Court of Madurai Bench in the case of Jeevanandham and others Vs. State rep. by Inspector of Police, Velayuthampalayam Police Station, Karur District (2 supra), wherein it was held as follows:
"The offence under Section 188 of IPC can only be prosecuted on the basis of a complaint which is filed by a public servant into the Court. Section 195 of Cr.P.C. prohibits taking cognizance by a Court except on the complaint in writing by a public servant concerned."
9. In this case, the complaint was not given by a public servant. In view of the same, the charge under Section 188 of IPC is liable to be quashed as against the petitioner herein.
10. Even as regards the charge under Section 420 IPC, this Court finds that there is nothing on record to show that the petitioner had Crl.P.No.5562 of 2023 6 intended to sell the said injections at a higher price and there is no identification of any of the parties who intended to buy the said products. As there is also no evidence that the petitioner has intended to enter into any agreement with any party for sale of the product, this Court is satisfied that no case is made out for attracting the provisions of Section 420 of IPC to the case on hand. The Hon'ble Supreme Court in the case of N. Raghavender Vs. State of Andhra Pradesh, CBI (4 supra) has clearly held that the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. In this case, the said ingredients are not present. In view of the same, the charge under Section 420 of IPC is also quashed as against the petitioner herein.
11. As there is no prohibitory order issued by any of the authorities of the State or Union Governments prohibiting possessing of Remdesivir injections at the relevant point of time, the charge under Section 51B of the Disaster Management Act, 2005 is not attracted and the same is quashed as against the petitioner herein.
Crl.P.No.5562 of 20237
12. The Criminal Petition is accordingly allowed and the charge sheet in C.C.No.3037 of 2022 on the file of IV Additional Metropolitan Magistrate-cum-IV Additional Junior Civil Judge, Ranga Reddy District at L.B.Nagar is quashed as against the petitioner herein/Accused No.3.
13. Pending miscellaneous petitions, if any, in this Criminal Petition shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 24.11.2023 Svv