Telangana High Court

Sai Vishwajeet Shaw, vs The State Of Telangana, on 24 November, 2023

     THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI


             CRIMINAL PETITION NO.5562 OF 2023


                               ORDER

This petition is filed seeking quashing of the charge sheet in

C.C.No.3037 of 2022 on the file of the IV Additional Metropolitan

Magistrate-cum-IV Additional Junior Civil Judge, Ranga Reddy District

at L.B.Nagar as against the petitioner/Accused No.3.

2. Brief facts are that respondent No.2 had complained that on

12.05.2021 at about 18.15 hours, the complainant along with patrol

mobile-II staff was performing patrolling duty at Kothapet area and

during the said process, they received credible information that two

persons were selling Remdesivir Covid-19 emergency

injections/medicines for higher price, i.e., each injection for an amount

of Rs.20,000/- to the needy patients at Fruit Market, Kothapet,

Chaitanyapuri and the same was informed to their superior officers and

that the complainant secured two mediators and along with his staff

rushed to the spot and caught accused 2 and 3 red-handedly with five

Remdesivir injections and on enquiry, the accused revealed their names

and on the instructions of accused 1 and 4, they were selling the above

injections for an amount of Rs.20,000/- each to needy customers.

Pursuant to the confession made by the accused, five Remdesivir and

three mobile phones, i.e., three Remdesivir injections, I-Phone and One

Plus phone from accused No.2 and two Remdesivir injections and one

Vivo mobile phone from accused No.3 were seized. Thereafter, a crime

under Sections 420, 188 read with Section 34 of IPC and Section 51B of

the Disaster Management Act, 2005 was registered. It is submitted that

thereafter, the official respondent filed charge sheet on 29.03.2022

reaffirming the above position. Seeking quashing of the same, the

present Criminal Petition is filed by Accused No.3.

3. Learned counsel for the petitioner submitted that the

petitioner/Accused No.3 was working as an Accountant in a

Pharmaceutical Company and was found holding two vials of

Remdesivir which act was not prohibited by any of the authorities and

the complaint was also not given by a public servant under Section

195(1) of Cr.P.C. and therefore, the allegation of the offence under

Section 188 of IPC is not sustainable. In support of the said contention,

he placed reliance upon the judgment of this Court in the case of Pupala

Srinadh Srinath Vs. The State of Telangana and another 1 and also

the case of the Madurai Bench of Madras High Court in the case of

Jeevanandham and others Vs. State rep. by Inspector of Police,

Velayuthampalayam Police Station, Karur District 2.

4. Further, in respect of applicability of Section 51B of the Disaster

Management Act, 2005 to this case, the learned counsel for the

petitioner submitted that the said provisions are not attracted to the case

on hand as there were no prohibitory orders issued by any of the

authorities, leave alone the State or the Central Governments. In support

of this contention, he placed reliance upon the judgment of the

Chhattisgarh High Court in the case of Dr. Santosh Kumar Patel Vs.

State of Chhattisgarh and others 3.

5. As regards the provisions of Section 420 of IPC, the learned

counsel for the petitioner submitted that the respondents have not

brought on record any evidence to show that the petitioner intended to

Criminal Petition Nos.11371, 11374 and 11377 of 2022 dt.27.12.2022

Crl.O.P.No.1356 of 2018 and batch dt.20.09.2018

W.P.(Cr.)No.332 of 2020 dt.14.12.2020

sell the said injections or that the petitioner had entered into any

agreement with any party at the price mentioned in the FIR. It is

submitted that merely because the petitioner was possessing two vials of

Remdesivir, if at all, it can only be presumed that the petitioner intended

to sell the injections and having a mere intention or an attempt to sell,

itself does not attract an offence under Section 420 of IPC. He placed

reliance upon the judgment of the Hon'ble Supreme Court in the case of

N. Raghavender Vs. State of Andhra Pradesh, CBI 4 in support of this

contention.

6. The learned counsel for the petitioner/Accused No.3 therefore

sought quashing of the charge sheet against the petitioner.

7. Sri S.Ganesh, learned Assistant Public Prosecutor vehemently

opposed the said contentions and submitted that the petitioner was

caught red-handed with the vials of Remdesivir and he intended to sell

them at a higher price to make money and therefore, the provisions of

Section 420 of IPC were clearly attracted to the case on hand. He also

2021 SCC OnLine SC 1232

supported the registration of case under Section 188 read with Section

34 of IPC.

8. Having regard to the rival contentions and the material on record,

this Court finds that the issue of maintainability of the charge sheet

under Section 188 of IPC is clearly covered by the judgment of this

Court in the case of Pupala Srinadh Srinath Vs. The State of

Telangana and another (1 supra) and also the case of the Madras High

Court of Madurai Bench in the case of Jeevanandham and others Vs.

State rep. by Inspector of Police, Velayuthampalayam Police

Station, Karur District (2 supra), wherein it was held as follows:

"The offence under Section 188 of IPC can only be prosecuted on the basis of a complaint which is filed by a public servant into the Court. Section 195 of Cr.P.C. prohibits taking cognizance by a Court except on the complaint in writing by a public servant concerned."

9. In this case, the complaint was not given by a public servant. In

view of the same, the charge under Section 188 of IPC is liable to be

quashed as against the petitioner herein.

10. Even as regards the charge under Section 420 IPC, this Court

finds that there is nothing on record to show that the petitioner had

intended to sell the said injections at a higher price and there is no

identification of any of the parties who intended to buy the said

products. As there is also no evidence that the petitioner has intended to

enter into any agreement with any party for sale of the product, this

Court is satisfied that no case is made out for attracting the provisions of

Section 420 of IPC to the case on hand. The Hon'ble Supreme Court in

the case of N. Raghavender Vs. State of Andhra Pradesh, CBI (4