Telangana High Court

Anish Kumar Dundoo vs State Of Telangana on 9 September, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

              CRIMINAL PETITION No.1231 of 2021

ORDER:

1. The petitioner, who is Accused No.1 in NDPS S.C.No.14 of

2019 on the file of the I-Additional Metropolitan Sessions Judge,

Nampally at Hyderabad, filed this Criminal Petition under Section

482 Cr.P.C. to quash the proceedings initiated against him in the

above case. A charge sheet came to be filed against the petitioner

and others for the offences punishable under Sections 8 (c) read with

Sections 22 (b) and 20 (b) (ii) (B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (for short "the Act").

2. The case of the prosecution is that on 11.07.2017 on reliable

information about illegal possession and sale of LSD at Hi-Tech

Rickshaws at Paradise Circle, Secunderabad, the respondent officers

went to the said place, found the petitioner in the premises and on

search they found 16 LSD blots (stamps) and the same was seized by

the officers under a cover of panchanama and that on enquiry, the

petitioner/A-1 confessed that he and his friend by name Ritul

Agarwal/A-2 will book the online order for LSD (Lysergic Acid

Bithylamide) using dark web through crypto currency and the

parcel will be received through Indian Postal Department and that

they used to consume themselves along with friends and remaining

LSD blots (stamps) will be sold to A-3 to A-5 and others. The

petitioner also revealed that not only LSD, they used to consume

ganja also and further stated that he and his friend A-2 used the

vehicle Grand i10 bearing No.TS 09 ER 0050 for transportation and

sale of drugs to A-3 to A-5 regularly. Basing on the said seizure and

confession, a case in Crime No.65 of 2017 of Prohibition and Excise

Station, Secunderabad has been registered against the petitioner and

others. After completion of investigation and after collecting all the

material papers, charge sheet has been filed against the petitioner

and others, which was taken cognizance as NDPS S.C.No.14 of 2019

on the file of the I-Additional Metropolitan Sessions Judge, City

Criminal Court, Nampally, Hyderabad. The present Criminal

Petition is filed to quash the proceedings against the petitioner in the

said case.

3. Heard learned Counsel appearing for the petitioner/A-1,

learned Assistant Public Prosecutor appearing for the respondents

and perused the record.

4. Learned Counsel for the petitioners would submit that the

trial Court framed the charge against the petitioner under Section 22

(a) of the Act as amended, which is a bailable offence and is

punishable up to six months as prescribed under the Act. He further

submits that Section 64-A of the Act provides immunity from

prosecution for the offence involving small quantity and the

quantity involved in this case is also small quantity and as such, the

petitioner filed an application under Section 64-A of the Act vide

Crl.M.P.No.238 of 2020, which was dismissed on 25.11.2019. He

further submits that earlier also the petitioner filed Crl.M.P.No.737

of 2019 seeking discharge and while dismissing the said petition, the

trial Court observed that the alleged contraband is small quantity

and in spite of having observed that the alleged contraband being

small quantity, the trial Judge ignored the provision of Section 64-A

of the Act and erroneously rejected the application to grant

immunity to the petitioner from prosecution. Hence, the petitioner

filed the present Criminal Petition. Learned Counsel further

submits that Section 64-A of the Act, provides immunity from

prosecution to the accused, who volunteers for treatment. In this

case, the petitioner has undergone treatment from the Government

recognized De-Addiction Centre, Pheonix Rehab Services Private

Limited, Hyderabad and after completion of the counseling sessions,

the doctors had taken blood and urine samples of the petitioner,

which proved negative for presence of any narcotic or psychotropic

substances in his body. Therefore, the petitioner is entitled for

immunity from prosecution under Section 64-A of the Act. In

support of his contention, he relied upon the judgment of the

Madras High Court in Sanjiv Bhatnagar v. State1. Hence, prayed

to quash the proceedings against the petitioner.

5. Learned Assistant Public Prosecutor fairly conceded to the

fact that the contraband seized from the petitioner is a small

quantity, for which the petitioner is entitled for immunity for

prosecution under Section 64-A of the Act.

MANU/TN/4179/2016

6. Before proceeding further, it would be appropriate to refer to

Section 64-A of the Act, which reads as under:-

"64A. Immunity from prosecution to addicts volunteering for treatment.--Any addict, who is charged with an offence punishable under section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognized by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances: Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction."

7. In Sanjiv Bhatnagar v. State (1 supra), Madras High Court

held as under:-

"11. Given the attendant facts and circumstances, the prosecution in the instant case may at best be able to make out an offence under Section 27 of NDPS Act. The question that arises for consideration would be whether the accused should be required to undergo trial towards his conviction for offence under Section 27 of NDPS Act and would he only thereafter be entitled to seek the benefit of Section 64(A) of NDPS Act. Simply put, Section 64(A) of NDPS Act is one intended to rid an user of drugs from the evil thereof and towards his rehabilitation, the end object being to facilitate a life free of drugs. This Court is of the view that when the material gathered by the prosecution itself informs the petitioner to be an user of drugs and not in too large a quantity the provision for rehabilitation should be given effect to at the earliest.

12. Exercising powers under Section 482 Cr.P.C, this Court presently would pass the following order:

(i) Charge in case pending in C.C.No.46 of 2015 on the file of learned II Additional Special Judge under NDPS Act, Chennai, shall be altered to one for offence under Section 27 of the NDPS Act. Further proceedings in the case shall be stayed pending further orders of this Court.

(ii) Petitioner shall be required to undergo treatment towards de-addiction at T.T.Ranganathan Clinical Research Foundation (TTK Hospital), Chennai, which is informed, to be recognized by Government as a hospital for treating and rehabilitating persons addicted to alcohol and other drugs.

(iii) Upon completion of treatment and related programmes, T.T.Ranganathan Clinical Research Foundation (TTK Hospital), Chennai, is required to file a report regarding the success or otherwise of the treatment afforded to the petitioner and the state of health (mental and physical) as on the date of such report. Such report may be filed before this Court not later than on 10.06.2016.

After 22 days, the rehabilitation institution submitted a progress report about the accused to Madras High Court stating that, "The patient underwent three weeks of psychotherapeutic intervention for treatment of substance dependence. This included attending re-educative lecture sessions, group therapy, AA sharing and counselling sessions. As part of the family programme his wife also attended classes and counselling. Patient has been very co- operative throughout the term of treatment and has adequate family support. To ensure qualitative sobriety follow-up with counsellor has been recommended." Recording the submission and giving the attendant facts and circumstances, by applying Section 64(A) of the Act and the petitioner therein has gained immunity from prosecution, consequently proceedings before the II

Additional Special Judge under NDPS Act, Chennai, have been quashed by the Madras High Court."

8. In the instant case also, admittedly, the quantity which has

been seized is small quantity. Further, the petitioner was charged

only for the offences under Section 8 (c) read with Section 22 (a) of

the Act, which is punishable with rigorous imprisonment for a term

which may extend to six months, or with fine which may extend to

ten thousand rupees or with both. Therefore, the provision of

Section 64-A of the Act is applicable to the petitioner. Further, the

Madras High Court while hearing the matter, exercised inherent

powers under Section 482 of Cr.P.C. and quashed the proceedings

against the petitioner therein, however referring to the successful

rehabilitation envisaged under Section 64-A of the Act. In the

instant case, the petitioner has filed a certificate issued by Pheonix

Rehab Services Private Limited, Hyderabad. For better appreciation,

it would be appropriate to refer to the contents of the said certificate,

which is as under:-

"This is to inform and certify that Mr.Anish Dandoo, S/o. Sri Anil Dandoo, Age: 32 years, Occ: Business, R/o. Padmaraonagar, Secunderabad, has come for Drug Abuse Counselling. It is learnt from the client that he has been charged in a case for an offence under the NDPS Act.

He claims to have not used any narcotic or psychotropic substances. Currently, he does not exhibit any active withdrawal symptoms hence not required any detoxification. He is subjected to standard blood tests prescribed to verify the presence of any narcotic or

psychotropic substances and the blood investigation report tested negative for the presence of any narcotic or psychotropic substances.

He underwent the following Counselling/Therapy (8) sessions at Phoenix rehab services, Hyderabad.

1) Assessment: Case history details collected from the client. Client is given Drug abuse screening test (DAST) - he scored 4 which indicate low for substance abuse disorder.

2) Screening: Client's 12 panel Drug test is done at the end of counseling process to rule out any active narcotic or psychotropic substance use.

3) Drug test results are negative for the presence of any narcotic or psychotropic substances and are discussed with client. The test result is enclosed.

4) Psycho-education and counseling sessions done on - reasons for drug abuse, ill effects of drugs, consequences, complications of drug abuse, REBT, CBT, relapse prevention, available of support network systems to stay drug free and Legal aspects of Drug abuse."

9. The contents of the certificate filed by the petitioner would

reveal that the petitioner has undergone successful treatment from

the Government recognized De-Addiction center, Phoenix Rehab

Services Private Limited, Hyderabad and that there was no presence

of any narcotic or psychotropic substances in his body.

10. For the aforesaid discussion and having regard to the fact that

the decision rendered by the Madras High Court in the judgment

supra is also applicable to the facts of the present case, I am of the

opinion that it is a fit case to quash the proceedings against the

petitioner/A-1.

11. Accordingly, the Criminal Petition is allowed and the

proceedings initiated against the petitioner/A-1 in NDPS S.C.No.14