Karnataka High Court

Mr. Mohammed Irfan vs State Of Karnataka on 24 August, 2023

Bench: M.Nagaprasanna

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                                                               NC: 2023:KHC:30400
                                                           CRL.P No. 5904 of 2023




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 24TH DAY OF AUGUST, 2023

                                               BEFORE

                           THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                              CRIMINAL PETITION NO. 5904 OF 2023

                      BETWEEN:

                      1.   MR. MOHAMMED IRFAN (AS PER AADHAR CARD)
                           C/O MAYYADI, AGED ABOUT 37 YEARS,
                           R/AT 2-9-F-I-N MANZIL,
                           SCHOOL ROAD ATHRADI,
                           UDUPI-576107.

                      2.   SRI. PRAMOD (AS PER AADHAR CARD)
                           (MENTIONED AS PRAMOD POOJARY IN CHARGESHEET)
                           S/O SANJEEVA, AGED ABOUT 35 YEARS,
                           R/AT 1-136, MOODOLI, KARKADA POST,
                           SALIGRAMA, UDUPI-576225.
                                                                  ... PETITIONERS
                      (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)


VISHAL   AND:

NINGAPPA 1. STATE OF KARNATAKA,
            BY MANIPAL POLICE STATION,
PATTIHAL    R/BY STATE PUBLIC PROSECUTOR,
                           HIGH COURT BUILDINGS,
Digitally signed by
VISHAL NINGAPPA            BANGALORE-560001.
PATTIHAL
Date: 2023.08.30           (TRANSFERRED TO THE C.I.D NDC
11:22:58 +0530             DEPARTMENT MANGALORE-575001)

                      2.   SRI. P.M DIVAKAR,
                           POLICE INSPECTOR,
                           COASTAL SECURITY POLICE STATION,
                           MALPE, UDUPI-576103.
                                                                  ... RESPONDENTS
                      (BY SRI. ANOOPKUMAR, HCGP)
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                                            NC: 2023:KHC:30400
                                       CRL.P No. 5904 of 2023




      CRL.P FILED U/S 482 CR.PC BY THE ADVOCATE FOR THE
PETITIONER PRAYING TO ALLOW THE PETITION AND QUASH THE
ENTIRE    PROCEEDINGS    AGAINST    THE   PETITIONERS  IN
C.C.NO.115/2017 (CR.NO.242/2011) FOR THE OFFENCE P/U/S
120(b), 420, 511 OF IPC, ON THE FILE OF ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, UDUPI.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:

                           ORDER

1. The petitioners are before this Court calling in

question the proceedings in C.C. No.115/2017 (Crime

No.242/2011) registered for the offences punishable under

Sections 120(b), 420, 511 of the IPC on the file of the

Addl. Senior Civil Judge and CJM, Udupi.

2. Learned counsel appearing for the petitioner

submits that the issue in the lis stands covered by the

judgment rendered by this Court in Crl.P. No.5440/2022,

disposed off on 25th July 2022.

3. The order in Crl.P. No.5440/2022 reads as

under:

"The petitioner is before this Court calling in question the proceedings in C.C.No.115/2017, registered

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for offences punishable under Sections 120B, 420 and 511 of IPC. The petitioner is accused No.5.

This Court in Crl.P.No.3228/20218 filed by accused Nos.1 and 6, has quashed the proceedings vide order dated 30.11.2021. The order reads as follows:

"3. The brief facts as projected by the prosecution are as follows:-

On 5-11-2011 the Police Inspector of Costal Security Police Station, Malpe registers a complaint on the allegation that on 4.11.2011 at about 8.15 p.m. he received a message on phone through an informer that in the parking place of Paradise Resort Hotel near Malpe Beach an auto driver in a auto bearing registration number KA 20 B 8411 was waiting to purchase brown sugar from a particular party which fact he informed to the Superintendent of Police, Udupi and obtained permission to go to the spot. The complainant did go to the spot at about 9.15 p.m. and claims to have watched the spot from a distance and thereafter the vehicle was stopped at about 10.15 p.m. and did nab three persons out of seven and three others ran away from the spot. A plastic carry bag was confiscated and he found that brown sugar in possession of the 1st petitioner weighing 1 kg. total value of which was Rs.1,65,00,000/-. Based on the aforesaid offence a case was registered against petitioners and others for offences punishable under Sections 8 and 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short). The petitioners wereremanded to judicial custody of such incident. Then the case was transferred to the CID of the NDC Department at Bangalore to take up investigation

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and file charge sheet against the petitioners and others for offences punishable under Sections 420, 511 and 120B of the Indian Penal Code. It is these proceedings that are called in question in the subject criminal petition.

4. The learned counsel appearing for the petitioners submits that the petitioners are no way involved in any of the offences charged by the prosecution. Initially the case was registered for offences punishable under Sections 8 and 20(B) of the Act on the allegation that the petitioner No.1 was in possession of 1 kg of brown sugar. The samples of seized substance were sent to the Forensic Science Laboratory at Bangalore for chemical analysis. The report of the Forensic Science Laboratory at Bangalore is to the effect that it did not contain brown sugar but contained Sodium Hydroxide which is neither a narcotic drug nor a psychotropic substance. The case ought to have been dropped but the Police have registered the case under Sections 420 and 120B of the IPC out of nowhere.

5. On the other hand, the learned High Court Government Pleader representing the respondent would seek to justify the order on the ground that the proceedings are at the stage of trial after the Police having filed the charge sheet and this Court should not interfere at this stage of the proceedings.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

7. The afore-narrated events of nabbing the petitioners and confiscating carry bag is not in dispute.

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The sample in the carry bag was sent to the Forensic Science Laboratory for chemical examination which clearly opined that the sample did not contain brown sugar but contained Sodium Hydroxide. Not being satisfied with the State own machinery i.e., the Forensic Science Laboratory of Government, the sample was again sent to one lab by name Truth Labs which was an affiliate of the labs of United States of America which on examination found that it contains Sodium Hydroxide and not brown sugar; it was narcotic substance and no brown sugar was detected. Based upon these two reports the case of the petitioners for offences punishable under Sections 8 and 20Bof the Act was dropped. But what was made out was a case for offences punishable under Sections 420, 511 and 120B of the IPC. Sections 420, 511 or criminal conspiracy under Section 120B cannot be invoked against the petitioners for the reason that Section 420 which deals with cheating thevictim who should register a complaint of him being induced or lured into a particular transaction due to which the victim had suffered loss of property.

8. The case at hand is a case where petitioners were alleged to selling brown sugar. The consumption of brown sugar on the allegation is against other accused. There is no victim in the case at hand to attract an offence under Section 420 of the IPC. It cannot be an allegation that an illegal substance i.e., brown sugar was being sold as Sodium Hydroxide and people were cheated. An illegal substance being sold as something and people being cheated on that cannot be made an offence against the petitioners. Section 120B of the IPC cannot

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also be invoked as the allegation was that the petitioners were transacting brown sugar and it is found that the pocket contained Sodium Hydroxide. Therefore, there is no conduct of the petitioners that can be attached to a crime and an offence of criminal conspiracy that can be brought out against the petitioners. Therefore, the said offence also cannot be linked to the incident that is alleged.

9. What remains is Section 511 of the IPC. Section 511 deals with punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments. The allegation against the petitioners as observed hereinabove under Section 420 and 120B IPC cannot even link the petitioners to the incident invoking Section 511 of commission of any offence would not hold water. Therefore, the incident or the complaint cannot be seen to link the offences alleged against the petitioners and permitting trial to be continued for offences under Sections 420, 120B or 511 of the IPC would degenerate into a weapon of harassment against the petitioners and result in miscarriage of justice.

For the aforesaid reasons, I pass the following:

ORDER i. Criminal petition is allowed.

ii. The proceedings in C.C.No.115 of 2017 (Crime No.242 of 2011) pending on the file of the Principal Senior Civil Judge and CJM, Udupi for the offences punishable under Sections 420, 511 read with Section 120B of the IPC stand quashed insofar as the petitioners are concerned.

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iii. The observations made in the course of this order will not come in the way of the complainant prosecuting or initiating such proceedings as is available in law, as the observations made in this order is only for the purpose of consideration of the case under Section 482 of the Cr.P.C."

In the light of the order passed by this Court (supra) and for the reasons mentioned in Crl.P.No.3228/2018, the present petition deserves to be allowed.

ORDER

(i) The Criminal Petition is allowed.

(ii) The proceedings in C.C.No.115/2017 pending on the file of the Additional Senior Civil Judge and C.J.M., Udupi, qua the petitioner, stand quashed.

In view of the disposal of the main petition, I.A.No.1/2022 also stands disposed."

4. In the light of the order passed by this Court

(Supra) and for the reasons mentioned in Crl.P.

No.5440/2022, the present petition deserves to be

allowed. Accordingly, the following:

ORDER

(i) The petition is allowed;

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(ii) The proceedings in C.C. No.115/2017 (Crime No.242/2011) registered for the offences punishable under Sections 120(b), 420, 511 of the IPC on the file of the Addl. Senior Civil Judge and CJM, Udupi, stands quashed.