Shashikanth Cherla vs State Of Telangana

Telangana High Court

Shashikanth Cherla vs State Of Telangana on 9 February, 2024

     THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI


             CRIMINAL PETITION NO.11743 OF 2023

                              ORDER

In this Criminal Petition filed under Section 482 of the Code of Criminal Procedure, the petitioner is accused No.5 and is seeking quashing of the proceedings against him in SC.NDPS No.36 of 2020 on the file of the I Additional Metropolitan Sessions Judge, Nampally, Hyderabad.

2. Brief facts leading to registration of the subject case against the petitioner herein are that the police, on credible information that two persons are trying to sell prohibited narcotic drugs in front of Ohris Hotel, Road No.12, Banjara Hills, Hyderabad, intercepted the said persons and seized certain materials, i.e., narcotic drugs from them and arrested them. In the meantime, another person by name Abhinav Mahender, who is accused No.3 came to the spot in a car and he was also intercepted and arrested. All the three are arrayed as accused Nos.1 to 3. Accused No.3 had given a confessional statement that accused Nos.4 and 5 used to search internet for drugs by using Tor browser and used to purchase MDMA drug and sell the same to accused No.1 and Crl.P.No.11743 of 2023 2 other needy customers on higher rates. On the basis of the said information, accused No.4 was arrested and all the accused, i.e., accused Nos.1 to 4 were produced before the Court. Accused No.5 was shown as absconding. However, on 13.11.2017, the petitioner, i.e., accused No.5 was arrested and one I-phone 5 which was allegedly used by the petitioner for commission of the alleged offence was also seized from him and accordingly, the charge sheet has been filed.

3. Learned counsel for the petitioner submitted that the petitioner has been implicated in the case only on the basis of the alleged confessional statement of accused No.3. He submitted that though the phone of the petitioner has been seized, the same was not sent to FSL report on the phone and that there is no basis, whatsoever, mentioned in the charge sheet for confirming that the petitioner is involved in the said offence. He therefore sought quashing of the proceedings against the petitioner. In support of his contention that only on the basis of the confession of a co-accused, the criminal case against the petitioner is not maintainable, he placed reliance upon the following decisions of the Hon'ble Supreme Court:

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(1) Parveen @ Sonu Vs. The State of Haryana 1 (2) Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence 2 (3) Balwinder Singh (Binda) Vs. The Narcotics Control Bureau 3 Further he also placed reliance upon the following other judgments in support of his contention that even in NDPS cases, FIR and charge sheet can be quashed.

(i) Vinod Kumar Kila Vs. CBI 4 (High Court of Delhi)

(ii) D.M.Vishnu Sai Vs. The State of Telangana 5 (Telangana High Court)

(iii) Jogiram Vs. The State of Madhya Pradesh Station House Officer through Police Station Suwasara District Mandsaur (Madhya Pradesh) 6.

(iv) Tajinder Singh alias Montu Vs. State of Punjab 7 (Punjab-

Haryana High Court) 1 Criminal Appeal No.1571 of 2021 dt.07.12.2021 2 Criminal Appeal No.949 of 2018 dt.31.07.2018 3 Crl. Appeal No.1136 of 2014 a/w Crl. Appeal No.1933 of 2014 dt.22.09.2023 4 Crl.M.C.No.2942 of 2016, Crl.M.A.No.12639 of 2016 dt.08.08.2022 5 Criminal Petition No.11351 of 2023 dt.17.11.2023 6 Misc. Criminal Case No.45785 of 2023 dt.13.10.2023 7 Criminal Misc.No.42734-M of 2000 dt.26.05.2011 Crl.P.No.11743 of 2023 4

(v) Kamta Prasad @ K.P.Jaiswal Vs. The State of Madhya Pradesh through the Police Station Maihar District Satna (MP) 8

(vi) Vishnu Kumar Shukla and another Vs. The State of Uttar Pradesh and another 9 (Supreme Court)

(vii) Sanjeev Chandra Agarwal and another Vs. Union of India 10 (Supreme Court)

(viii) Tofan Singh Vs. State of Tamil Nadu 11

(ix) Central Bureau of Investigation Vs. Aryan Singh etc. 12

(x) Surja Ram Vs. State of Rajasthan 13 (Rajasthan High Court -

Jodhpur)

4. Learned Assistant Public Prosecutor, however, strongly opposed the said contention and submitted that accused No.3 in his confessional statement had clearly stated that the petitioner was involved in searching internet and sourcing MDMA drug through internet and selling the same for a higher price to the customers and therefore, a case is made out against the petitioner and it should not be quashed. 8 Criminal Revision No.1803 of 2022 dt.26.09.2022 9 Criminal Appeal No.3618 of 2023 dt.28.11.2023 10 Criminal Appeal No(s).1273/2021 @ Diary No.24622/2017 dt.25.10.2021 11 (2021) 4 SCC 1 12 2023 LiveLaw (SC) 292 13 Criminal Misc (Pet.) No.315/2016 dt.13.09.2017 Crl.P.No.11743 of 2023 5

5. Having regard to the rival contentions and the material on record, this Court finds that the provisions of Section 482 of the Code of Criminal Procedure are applicable where there is abuse of process of law and there is no evidence whatsoever against the accused. In this case, the petitioner was not found in possession of the prohibited drug nor was he found to be involved in sourcing of the drug with any cogent material. From a reading of the FIR and the charge sheet and the confessional statement of accused No.3, it is noticed that it is only the statement of accused No.3 which is the basis for suspecting the petitioner, i.e., accused No.3 and registering the case against him. Though the confessional statement of accused No.3 may form the basis for arraying the petitioner as accused No.5 in the FIR, the police ought to have conducted proper enquiry for determining the role of the petitioner before filing of the charge sheet. The charge sheet does not refer to any other evidence, leave alone the FSL report with regard to the mobile phone of the petitioner which has been seized from the petitioner on the date of his arrest for coming to the conclusion that the alleged offence has been committed by him.

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6. In the decisions relied upon by the learned counsel for the petitioner in the cases of Parveen @ Sonu Vs. The State of Haryana (1 supra), Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence (2 supra) and Balwinder Singh (Binda) Vs. The Narcotics Control Bureau (3 supra), the Hon'ble Supreme Court has held that the confessional statement of co-accused alone cannot form the basis for punishing the accused. The accused in those judgments had preferred appeals against the convictions after trial and the decisions of the Hon'ble Apex Court were rendered in such appellate proceedings. However, in the other cases relied upon by the learned counsel for the petitioner (4 to 13 supra), the respective High Courts and the Hon'ble Supreme Court have considered the material on record to quash the criminal proceedings at the stage of FIR and charge sheet.

7. In view of the same and respectfully following the judgment of the Hon'ble Supreme Court in the case of Parveen @ Sonu Vs. The State of Haryana (1 supra), this Court is inclined to quash the FIR and the charge sheet in SC.NDPS No.36 of 2020 on the file of the I Crl.P.No.11743 of 2023 7 Additional Metropolitan Sessions Judge, Nampally, Hyderabad against the petitioner herein/accused No.5 only.

8. This Criminal Petition is accordingly allowed.

9. Pending miscellaneous petitions, if any, in this Criminal Petition shall stand closed.

___________________________ JUSTICE T. MADHAVI DEVI Date: 09.02.2024 Svv