Sk. Raja vs State Of Odisha
2021 Latest Caselaw 9126 Ori

AFR

                      HIGH COURT OF ORISSA, CUTTACK

                             CRLMC No.227 of 2021

        (In the matter of application under Section 482 of the Criminal
                                Procedure Code)

       Sk. Raja                                  ...             Petitioner

                                                Versus

       State of Odisha                           ...           Opposite Party


             For Petitioner         : Mr. Ashok Mohanty, Senior Advocate
                                     and Mr. Arun Kumar Budhia, Advocate

             For Opp. Party         : Mr. Karunakar Gaya,
                                     Additional Standing Counsel

PRESENT

            THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI

Date of Hearing: 05.08.2021                Date of judgment: 01.09.2021

S. K. Panigrahi, J.

1. The petitioner has filed this application under Section 482 of

the Code of Criminal Procedure, 1973 ('CrPC') seeking for a

direction to quash the entire proceeding in Special Case No.41

of 2020 arising out of STF Bhubaneswar P.S. Case No.9 of 2020

pending before the learned Special Judge, Balasore for the

commission of offence under Sections 21(C)/29 of the NDPS

Act.

2. On perusal of the FIR on record, the facts are such that on

27.01.2020, at about 8:30 PM, the informant received // 2 //

information concerning two persons namely Sk. Haider and

Tanmaya Bhuyan (hereinafter 'co-accused') selling narcotic

Brown Sugar near Arada Bazar. Accordingly, they reached the

spot and nabbed the accused persons. In search of their

possessions, the police recovered narcotic Brown Sugar

weighing 301.2 grams. During further interrogation, the

accused persons disclosed that they were engaged by one Sk.

Asgar, a notorious drug peddler who also happens to be an

associate of Sk. Raja (hereinafter 'petitioner'). They also

confessed that they used to procure narcotic Brown Sugar from

Sk. Asgar and the petitioner for their operations.

3. Learned counsel for the petitioner submitted that the petitioner

has no role in the alleged offence. He highlighted the fact that

with respect to the matter in question, the narcotics was

procured by the co-accused from Sk. Asgar and not the

petitioner; he was in jail at the time of occurrence. The

petitioner has been implicated only on the basis of confession of

the co-accused as reflected in the FIR. Ergo, no prima facie

evidence exists to prove the petitioner's association with the

case. He also submitted that the learned Special Judge has

erroneously passed the impugned order of cognizance relying on

the 'interim' charge sheet which does not even find mention of

the petitioner. Hence, the impugned order and consequential

// 3 //

proceedings may be quashed under Section 482 Cr.P.C as it is

illegal and clear abuse of the process of law.

4. Learned counsel for the State vehemently opposed the prayer of

the petitioner stating that the petition is pre-mature as the

investigation is not yet complete. He submitted that the

petitioner is a habitual offender and has several criminal

antecedents against him. He further contended that the

petitioner procures contraband Brown Sugar from international

drug dealers of Murshidabad and masterminds a huge network

of narcotic Brown Sugar spread across several districts of

Odisha. He contended that the custodial interrogation of the

petitioner is imperative to unearth the drug network and severe

the branches of this clandestine business. Ergo, the present

petition should be dismissed.

5. Heard Mr. Asok Mohanty, learned Senior Counsel appearing for

the petitioner and Mr. Karunakar Gaya, learned Additional

Standing Counsel for the State and perused the entire case

records. In fact, the amplitude of power of Section 482 is wide

but demands great deal of cautions while exercising this power.

The Apex Court has succinctly described the amplitude of

power bestowed on the High Court by Sec. 482 of Cr. PC in

// 4 //

Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful

Haque, 1 observed and held as under:

"11. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles.

The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the

(2005) 1 SCC 122

// 5 //

offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court......"

6. This Court should also recall the case of Union of India v.

Prakash P. Hinduja 2 wherein the Supreme Court has enunciated

clear guidelines about the exercise of Section 482 CrPC when

police investigation is in progress:

"20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency."

7.Ultimately, in M/s. Neeharika Infrastructure Pvt. Ltd. vs.

State of Maharashtra and others, 3, the Supreme Court has

cemented the position about the application of Sec. 482 against

cases where the investigation has not been completed:

"66. So far as the order of not to arrest and/or "no coercive steps" till the final report/charge-sheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible."

(2003) 6 SCC 195

2021 SCC OnLine SC 315

// 6 //

8.Given the allegations recorded in the FIR and position of law

explained in the aforesaid decisions, this Court believes that it

is imprudent and unnecessary for the High Court to interfere

under Section 482 Cr.PC while the police investigation is still in

progress.

9. Having considered the submissions of the petitioner and the

objections raised against the investigation procedure of the

police, it is not at all inspiring to quash the proceedings at this

stage. However, this Court must realize that the investigation

into crimes is the prerogative of the police and except in rare

cases, the judiciary should keep out all the areas of

investigation. In State of Bihar v. P.P. Sharma 4 the Supreme

Court held that:

"47. ... The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice of criminal trial rests-as error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal....... Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution....... Laborious hard-

work and attention to the details, ability to sort out through mountainous information, recognized behavourial

1992 Supp (1) SCC 222

// 7 //

patterns and above all, to co-ordinate the efforts of different people associated with various elements of the crime and the case, are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation.

48. From this perspective, the function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, viz., the proof of the commission of the crime, often individual liberty of a witness or an accused person are involved and inconvenience is inescapable and unavoidable. The investigating officer would conduct in- depth investigation to discover truth while keeping in view the individual liberty with due observance of law...." [emphasis supplied]

10.The allegations against the Petitioner are grave and could have

far-reaching consequences. Drug abuse is a man-made disaster

that is personalised, driven by desire, creating demand and

supply and resulting in the largest organized crime. Drug

trafficking provides a breeding ground for many other crimes

pervading in society, but they are all deeply interlinked, which,

law enforcement has to deal with at different levels. It is not

easy for the police to comprehend such a complex network of

trafficking and identify the one pulling strings of drug abuse

among students, vagrants, frustrated, and depressed citizens

from all sections of the society. Therefore, Law enforcement and

Judiciary must work in tandem to identify and destroy the evil

of drug trafficking from its roots. When humankind is dealing

with an existential struggle of its own, the judiciary and law

// 8 //

enforcement must be at the vanguard against this man-made

disaster. Ergo, it becomes all the more important that the

matter at hand be investigated further for the aforementioned

offences to meet the ends of justice.

11. In State of Haryana v. Bhajan Lal 5 wherein the Apex Court

has laid down certain broad tests to exercise the extraordinary

power of the High Court observed that the High Court should

sparingly and only in exceptional cases, i.e., in rarest of rare

cases, be inclined to exercise the power to quash the

FIR/charge-sheet/complaint. Since it is an exceptional power,

great care should be taken by the High Court before embarking

to scrutinize the FIR/charge-sheet/complaint.

12. Upon consideration of the materials on records and

arguments advanced by the parties, this Court cannot persuade

itself to hold that this is one of the rarest of the rare cases

where the inherent Jurisdiction of this Court under Section 482

of the CrPC should be invoked for quashing the proceedings.

13. In view of the above, this CRLMC is dismissed.

However, the petitioner will be at liberty to raise all the points,

already raised in this petition, at the time of framing of the

AIR 1992 SC 81

// 9 //

charge, which will be considered by the trial court concerned by

passing a reasoned order.

(S.K.Panigrahi) Judge

Orissa High Court, Cuttack The 1st day of September, 2021/AKK/LNB/AKP