Confederation Of All India ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 8974 MP

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

Gwalior, Dated : 20-12-2021

Ms. Shilpi Jain, Counsel with Ms. Shradha Dubey, Counsel for

the petitioner.

Shri Sanjay Kumar Sharma, Counsel for the State.

This petition under Article 226 of the Constitution of India has

been filed seeking following relief:-

"I. This Hon'ble Court may kindly be please to allow this petition.

II. To issue a writ, order or direction in the nature of Mandamus thereby transferring the investigation of the case FIR No.0288/2021 dated 13.11.2021, FIR under Section 8/20 of NDPS Act registered at police station Gohad Chauraha, District Bhind, Gwalior to an independent agency and most suitably Narcotics Control Bureau (NCB), in the interest of justice, fair pay and equity, and/or, III.

IV Constitute a special investigation team (SIT) for investigating the present case.

V.

VI. Allow/direct a court monitored probe in the interest of justice.

VII. Pass such orders which this Hon'ble Court may deem fit and proper in the interest of justice in favour of the Petitioner."

2. It is submitted by the counsel for the petitioner that Amazon

which is a platform for online trading is involved in illegal activities.

Contrabands are being sold by using E-commerce Platform of

Amazon. Accordingly, FIR in Crime No.288/2021 has been

registered in Police Station Gohad Chauraha District Bhind.

According to which, it was found that 21.734 kg of Ganja worth

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

Rs.2,10,000/- was being delivered through Amazon. It is submitted

that the said FIR is not the solitary instance of use of E-commerce

Platform of Amazon, but a similar case has also been registered in

Police Station Vishakhapatnam District Vishakhapatnam in Crime

No.216/2021 (slightly illegible, therefore, crime number may be

different). Without alleging against the Investigating Officer, it is

submitted that since an E-commerce Platform is involved in

supplying the contraband in different parts of the country, therefore,

the Investigating Officer may not have expertise in Cyber Law as

well as because of limited territorial jurisdiction, he may not be able

to conduct a detailed investigation into the activities of the Amazon,

therefore, the FIR in Crime No.288/2021 registered at Police Station

Gohad Chauraha District Bhind for offence under Section 8/20 of

NDPS Act be transferred to an independent agency, most suitably a

Narcotics Control Bureau or in the alternative the Court should

constitute a Special Investigation Team (SIT) for investigating the

matter.

3. During the course of arguments, it was pointed out by the

Court to the counsel for the petitioner that although the petitioner has

made lot of allegations against E-commerce Platform of Amazon, but

Amazon has not been impleaded as a party. Further, the petitioner has

not impleaded the persons who have been arrayed as an accused in

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

Crime No.288/2021. In reply, it was submitted by Ms. Shilpi Jain that

if the Court directs for impleadment of the aforesaid Agency or

persons, then the petitioner is ready to implead them.

4. Per contra, the petition is vehemently opposed by the counsel

for the State. It is submitted that the petitioner is a complete stranger

to the allegations and, therefore, he has no locus standi to pray for

transfer of the investigation to Narcotics Control Bureau or to pray

for constitution of SIT by the Court.

5. Heard the learned counsel for the parties.

6. So far as the locus standi of the petitioner to file this petition is

concerned, it would be considered after considering the effect of non-

joinder of necessary party.

7. It is well established principle of law that a petition should not

be dismissed on the ground of non-joinder of necessary party unless

and until an opportunity is given to the petitioner to rectify the defect.

In the present case, this Court pointed out to the counsel for the

petitioner that lot of allegations are being made against E-commerce

Platform of Amazon, but Amazon has not been impleaded as a party.

Similarly, the persons who have been arrayed as an accused in FIR

bearing Crime No.288/2021 at Police Station Gohad Chauraha

District Bhind have also not been made a party, but instead of giving

a second thought as to whether E-commerce Platform of Amazon and

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

the persons against whom the FIR in Crime No.288/2021 has been

registered are necessary party or not, it was replied by the counsel for

the petitioner that if this Court directs then the petitioner is ready to

implead them as a party. It is not for the Court to decide as to whether

the plaintiff/petitioner should implead anyone as a party or not. The

Court is only required to consider and decide as to whether the

persons who have not been impleaded as a party are necessary party

or not. The necessary party means a party in absence of whom an

effective decree cannot be passed.

8. "Necessary party" has been considered by the Supreme Court

in the case of Swapna Mohanty Vs. State of Odisha and others

reported in (2018) 17 SCC 621 and it has been held as under:-

"12. .............A person whose presence before a forum may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceedings. [See: Udit Narain Singh Malpaharia v. Board of Revenue [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786]."

9. The Supreme Court in the case of State of Assam Vs. Union

of India and others reported in (2010) 10 SCC 408 has held as

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

under:-

"16. We respectfully agree with the observations made by this Court in Udit Narain case [AIR 1963 SC 786] and adopt the same. We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding."

10. The Supreme Court in the case of Church of Christ

Charitable Trust and Educational Charitable Society

Represented by its Chairman Vs. Ponniamman Educational Trust

Represented by its Chairperson/Managing Trustee reported in

(2012) 8 SCC 706 has held as under:-

"26.On the other hand, when the plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non- joinder may follow. However, the said objection should be taken in the trial court itself so that the plaintiff may have an opportunity to rectify the defect. The said plea cannot be raised in this Court for the first time. This position has been reiterated in State of U.P. v. Ram Swarup Saroj [(2000) 3 SCC 699] . We hold that a plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial court and has not resulted in failure of justice. In the case of non- joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order 7 Rule 11, the second defendant is not a

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the respondent herein."

11. It is well established principle of law that no one should be

condemned unheard. Lot of allegations were made by Ms. Shilpi Jain

during her course of arguments and tried to persuade this Court to

consider and accept those allegations without even giving an

opportunity of hearing to the E-commerce Platform of Amazon. In

case, if the allegations made by the petitioner are accepted, then it

would be a finding against a party who is not before this Court.

12. The Supreme Court in the case of Indu Bhushan Dwivedi Vs.

State of Jharkhand and another reported in (2010) 11 SCC 278 has

held as under:-

"21. ............The proposition laid down in the abovenoted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause."

13. Under these circumstances, this Court is of the considered

opinion that E-commerce Platform of Amazon is a necessary party

but the petitioner did not avail the opportunity given by this Court to

implead the E-commerce Platform of Amazon as respondent in the

writ petition, but left the matter on the Court by saying that only if

the Court directs, then she would implead the E-commerce Platform

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

of Amazon as respondent.

14. So far as the non-impleadment of persons who have been

arrayed as an accused in FIR bearing Crime No.288/2021 is

concerned, it is submitted by the counsel for the petitioner that since

those are the accused persons and, therefore, they have no right or

say in the matter of investigation and, therefore, they are not

necessary party.

15. The submission made by the counsel for the petitioner is

misconceived and is hereby dismissed.

16. The accused persons of Crime No.288/2021 have not

approached this Court for change of Investigating Agency. It is the

petitioner, who is not an aggrieved party, has approached this Court.

It is true that the petitioner being a stranger may not be non-suited on

the question of locus standi in a criminal matter but at the same time,

the course of investigation cannot be changed without giving an

opportunity of hearing to the persons who have been arrayed as an

accused and that too, on the behest of a third person/party. For an

example, a person arrayed as an accused in a complaint case is not

entitled to participate in pre-registration proceedings and at the most,

he can watch the proceedings and only if a summon is issued to him,

he gets a right to participate and challenge the proceedings. However,

if a complaint is dismissed in limine without issuing any summons to

THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP

the person arrayed as an accused and if the complainant files a

criminal revision before the Revisional Court, then the person

arrayed as an accused automatically becomes a necessary party

because a right was created in his favour on account of dismissal of

complaint in limine.

17. Thus, where the investigation is sought to be transferred at the

behest of the third party, then in the considered opinion of this Court,

the persons who have been made an accused in the said criminal

investigation are necessary party for hearing. Since this Court had

given an opportunity to the petitioner to implead the necessary

parties, but the petitioner did not avail the said opportunity by saying

that the petitioner would implead them as a party only if it is

directed by the Court, this Court is of the considered opinion that

this petition suffers from non-joinder of the necessary party.

18. Accordingly, the petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.12.22 17:29:37 +05'30'