Telangana High Court
Shashikanth Cherla vs State Of Telangana on 9 February, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
CRIMINAL PETITION NO.11743 OF 2023
ORDER
In this Criminal Petition filed under Section 482 of the Code of
Criminal Procedure, the petitioner is accused No.5 and is seeking
quashing of the proceedings against him in SC.NDPS No.36 of 2020 on
the file of the I Additional Metropolitan Sessions Judge, Nampally,
Hyderabad.
2. Brief facts leading to registration of the subject case against the
petitioner herein are that the police, on credible information that two
persons are trying to sell prohibited narcotic drugs in front of Ohris
Hotel, Road No.12, Banjara Hills, Hyderabad, intercepted the said
persons and seized certain materials, i.e., narcotic drugs from them and
arrested them. In the meantime, another person by name Abhinav
Mahender, who is accused No.3 came to the spot in a car and he was
also intercepted and arrested. All the three are arrayed as accused Nos.1
to 3. Accused No.3 had given a confessional statement that accused
Nos.4 and 5 used to search internet for drugs by using Tor browser and
used to purchase MDMA drug and sell the same to accused No.1 and
other needy customers on higher rates. On the basis of the said
information, accused No.4 was arrested and all the accused, i.e., accused
Nos.1 to 4 were produced before the Court. Accused No.5 was shown as
absconding. However, on 13.11.2017, the petitioner, i.e., accused No.5
was arrested and one I-phone 5 which was allegedly used by the
petitioner for commission of the alleged offence was also seized from
him and accordingly, the charge sheet has been filed.
3. Learned counsel for the petitioner submitted that the petitioner
has been implicated in the case only on the basis of the alleged
confessional statement of accused No.3. He submitted that though the
phone of the petitioner has been seized, the same was not sent to FSL
report on the phone and that there is no basis, whatsoever, mentioned in
the charge sheet for confirming that the petitioner is involved in the said
offence. He therefore sought quashing of the proceedings against the
petitioner. In support of his contention that only on the basis of the
confession of a co-accused, the criminal case against the petitioner is not
maintainable, he placed reliance upon the following decisions of the
Hon'ble Supreme Court:
(1) Parveen @ Sonu Vs. The State of Haryana 1
(2) Surinder Kumar Khanna Vs. Intelligence Officer Directorate
of Revenue Intelligence 2
(3) Balwinder Singh (Binda) Vs. The Narcotics Control Bureau 3
Further he also placed reliance upon the following other judgments in
support of his contention that even in NDPS cases, FIR and charge sheet
can be quashed.
(i) Vinod Kumar Kila Vs. CBI 4 (High Court of Delhi)
(ii) D.M.Vishnu Sai Vs. The State of Telangana 5 (Telangana
High Court)
(iii) Jogiram Vs. The State of Madhya Pradesh Station House
Officer through Police Station Suwasara District
Mandsaur (Madhya Pradesh) 6.
(iv) Tajinder Singh alias Montu Vs. State of Punjab 7 (Punjab-
Haryana High Court)
Criminal Appeal No.1571 of 2021 dt.07.12.2021
Criminal Appeal No.949 of 2018 dt.31.07.2018
Crl. Appeal No.1136 of 2014 a/w Crl. Appeal No.1933 of 2014 dt.22.09.2023
Crl.M.C.No.2942 of 2016, Crl.M.A.No.12639 of 2016 dt.08.08.2022
Criminal Petition No.11351 of 2023 dt.17.11.2023
Misc. Criminal Case No.45785 of 2023 dt.13.10.2023
Criminal Misc.No.42734-M of 2000 dt.26.05.2011
(v) Kamta Prasad @ K.P.Jaiswal Vs. The State of Madhya
Pradesh through the Police Station Maihar District Satna
(MP) 8
(vi) Vishnu Kumar Shukla and another Vs. The State of Uttar
Pradesh and another 9 (Supreme Court)
(vii) Sanjeev Chandra Agarwal and another Vs. Union of
India 10 (Supreme Court)
(viii) Tofan Singh Vs. State of Tamil Nadu 11
(ix) Central Bureau of Investigation Vs. Aryan Singh etc. 12
(x) Surja Ram Vs. State of Rajasthan 13 (Rajasthan High Court -
Jodhpur)
4. Learned Assistant Public Prosecutor, however, strongly opposed
the said contention and submitted that accused No.3 in his confessional
statement had clearly stated that the petitioner was involved in searching
internet and sourcing MDMA drug through internet and selling the same
for a higher price to the customers and therefore, a case is made out
against the petitioner and it should not be quashed.
Criminal Revision No.1803 of 2022 dt.26.09.2022
Criminal Appeal No.3618 of 2023 dt.28.11.2023
Criminal Appeal No(s).1273/2021 @ Diary No.24622/2017 dt.25.10.2021
(2021) 4 SCC 1
2023 LiveLaw (SC) 292
Criminal Misc (Pet.) No.315/2016 dt.13.09.2017
5. Having regard to the rival contentions and the material on
record, this Court finds that the provisions of Section 482 of the Code of
Criminal Procedure are applicable where there is abuse of process of
law and there is no evidence whatsoever against the accused. In this
case, the petitioner was not found in possession of the prohibited drug
nor was he found to be involved in sourcing of the drug with any cogent
material. From a reading of the FIR and the charge sheet and the
confessional statement of accused No.3, it is noticed that it is only the
statement of accused No.3 which is the basis for suspecting the
petitioner, i.e., accused No.3 and registering the case against him.
Though the confessional statement of accused No.3 may form the basis
for arraying the petitioner as accused No.5 in the FIR, the police ought
to have conducted proper enquiry for determining the role of the
petitioner before filing of the charge sheet. The charge sheet does not
refer to any other evidence, leave alone the FSL report with regard to the
mobile phone of the petitioner which has been seized from the petitioner
on the date of his arrest for coming to the conclusion that the alleged
offence has been committed by him.
6. In the decisions relied upon by the learned counsel for the
petitioner in the cases of Parveen @ Sonu Vs. The State of Haryana
(1 supra), Surinder Kumar Khanna Vs. Intelligence Officer
Directorate of Revenue Intelligence (2 supra) and Balwinder Singh
(Binda) Vs. The Narcotics Control Bureau (3 supra), the Hon'ble
Supreme Court has held that the confessional statement of co-accused
alone cannot form the basis for punishing the accused. The accused in
those judgments had preferred appeals against the convictions after trial
and the decisions of the Hon'ble Apex Court were rendered in such
appellate proceedings. However, in the other cases relied upon by the
learned counsel for the petitioner (4 to 13 supra), the respective High
Courts and the Hon'ble Supreme Court have considered the material on
record to quash the criminal proceedings at the stage of FIR and charge
sheet.
7. In view of the same and respectfully following the judgment of
the Hon'ble Supreme Court in the case of Parveen @ Sonu Vs. The
State of Haryana (1 supra), this Court is inclined to quash the FIR and
the charge sheet in SC.NDPS No.36 of 2020 on the file of the I
Additional Metropolitan Sessions Judge, Nampally, Hyderabad against
the petitioner herein/accused No.5 only.
8. This Criminal Petition is accordingly allowed.
9. Pending miscellaneous petitions, if any, in this Criminal Petition
shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 09.02.2024
Svv
