Telangana High Court

Puvvada Ajay Kumar, vs The State Of Andhra Pradesh, on 27 September, 2024

Author: K. Lakshman

Bench: K. Lakshman

           HON'BLE SRI JUSTICE K. LAKSHMAN

              WRIT PETITION No.14519 OF 2014
ORDER:

The writ petition is filed by the petitioner under Article - 226

of the Constitution of India to declare FIR No.277 of Khanapuram

Haveli Police Station, Khammam, dated 28.04.2014, as illegal.

2. Heard Mr. Peri Prabhakar, learned counsel for the

petitioner and learned Government Pleader for Home appearing on

behalf of respondent Nos.1 to 3. Despite service of notice, there is

no representation on behalf of respondent No.4.

FACTS:

3. Respondent No.3 has registered a case in Crime No.277

of 2014 against the petitioner for the offences punishable under

Sections - 171(E) and 188 of IPC and Section - 34 (a) of the

Andhra Pradesh Excise Act, 1968 (for short 'Excise Act'), on the

report given by respondent No.4. The allegations leveled against

the petitioner are as follows:

i) Respondent No.4 was Flying Squad In-charge of

Khammam Assembly Constituency (112). Upon KL,J

specific information that liquor and cricket kits were

kept in the Women's Hostel of Mamatha Medical

College premises for the purpose of distributing the

same to the Voters, he along with Mr. Rajababu,

Assistant Election Expenditure and other team

members went to the said hostel for inspection.

ii) In the said inspection, he found 71 cartons of quarter

bottles of liquor in one room and in another room,

there are about 187 cricket kit bags. The report dated

28.04.2014 was prepared in the presence of

mediators'.

iii) The petitioner herein is the owner of the said material.

CONTENTIONS ON BEHALF OF THE PETITIONER:

4. Learned counsel for the petitioner would contend as

follows:

i) The petitioner herein is the President of the Mamatha

Educational Society, which is running the aforesaid

Medical College.

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ii) The premises in which the aforesaid liquor and cricket

kits alleged to have found is not owned by the

petitioner.

iii) The petitioner is not in possession of the said premises

or the material in any manner.

iv) The liquor and cricket kits do not have any connection

with the petitioner.

v) The petitioner was unnecessarily implicated in the

aforesaid case.

vi) The provisions of Excise Act do not applicable in this

case.

vii) The contents of the Excise Act lack ingredients of the

offence alleged against the petitioner.

viii) No offence can be made out against the petitioner

under Section - 188 of IPC.

ix) No permission or search warrant was obtained by

respondent No.4 while conducting search of the

premises in terms of Section - 55 of the Excise Act.

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x) Placed reliance on the principle laid down in Y.S.

Jagan Mohan Reddy v. State of Telangana 1, T.

Subbanna v. The State of A.P. 2, Yeduru

Sreenivasulu Reddy v. The State of Andhra

Pradesh 3, Remidi Srinivas Reddy v. State of A.P. 4,

Sunil Kumar Ahuja v. State of Telangana 5,

Ammisetty Srinivasu v. T. Usha Rani 6, Kaleru

Suresh v. State of A.P. 7 and Gampa Rohit v. The

State of Telangana 8.

CONTENTIONS ON BEHALF OF THE PROSECUTION:

5. Learned Government Pleader for Home would submit as

under:

i) There are specific allegations against the petitioner

herein.

ii) There is also prima facie material against the

petitioner.

. 2023 SCC OnLine TS 4090

. 2003 (1) ALD (Cri) 805

. 2002 (1) ALD (Cri) 347

. 2013 (2) ALD (Cri.) 395

. 2023 SCC OnLine TS 30

. 2023 SCC OnLine AP 4421

. MANU/TL/0141/2022

. MANU/TL/0437/2021 KL,J

iii) The liquor stock and the cricket kits were seized in the

presence of mediators only.

iv) The petitioner is President of the said Society, which

is running the Hostel in which the said material was

found.

v) There are several factual aspects to be considered by

the Investigating Officer.

vi) Quashing the FIR at the initial stage is not proper.

ANALYSIS AND FINDING OF THE COURT:

6. In view of the aforesaid rival submissions and perusal of

record would reveal that a report dated 28.04.2014 was given to

respondent No.3 by respondent No.4 stating that while he was

working as Assistant Director, Animal Husbandry Department,

Neelakundapalli, he was appointed as In-charge of Khammam

Assembly Plying Squad. While he was conducting flying squad

operations, he received information on 28.04.2014 regarding

storage of liquor and cricket kits in Mamata Medical College

Hostel for the purpose of distributing the same to the Voters. Then,

he accompanied by other election staff including Mr. Rajababu, KL,J

Assistant Election Expenditure reached the said area, inspected said

place and found the liquor bottles and cricket kits in locked

premises. They broke open the same and found liquor bottles were

stored in 43 boxes i.e., 15 paper boxes in each 43 Royal Life

Whisky, quarter bottles 28 and each 43 bottles Old Armiral VSOB

Brandy. In the nearest room, 187 Cricket kit bags were found. All

the said stock was seized in the presence of mediators. The said

liquor and kits were stored for the purpose of distributing the same

to the voters. The said stock belongs to the petitioner herein, who

is contesting as MLA on behalf of Congress-I Party from

Khammam Assembly Constituency. Perusal of seizure

panchanama discloses the date of incident and seizure of the stock

in the presence of two panchas, who are Tahsildar, office of the

Collector, Khammam and VRO of Velugumatla. The said

panchanama also discloses the details of stock, such as quantity

and brand of the liquor etc.

7. Basing on the said report lodged by respondent No.4,

respondent No.3 registered a case in Crime No.277 of 2014 for the

aforesaid offences against the petitioner and took up for KL,J

investigation. Challenging the said proceedings, the petitioner filed

the present writ petition. Vide order dated 15.05.2014, while

admitting the present writ petition, this Court granted stay of

proceedings in the said crime.

8. Prima facie, there are specific allegations against the

petitioner as the report lodged by a Government Official and the

stock was seized by him in the presence of two other Government

Officials, mediators.

9. Learned counsel for the petitioner contended that the

contents of complaint lacks the ingredients of Section - 34 (a) of

the Andhra Pradesh Excise Act, 1968. Therefore, the same is

extracted as under:

"34. Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed there under or of any licence or permit granted or issued under this Act,-

(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or

(b) ...... "

10. The contention of learned counsel that the petitioner is

no way concerned with the seized stock and also the place from

where the stock was seized cannot be considered by this Court in KL,J

the present writ petition filed under Article - 226 of the

Constitution of India, and same has to be considered by the

Investigating Officer during the course of investigation.

11. Admittedly, the aforesaid liquor bottles and bags

containing the cricket kits were seized from Mamatha Medical

College Hostel run by the Mamatha Educational Society to which

the petitioner is President. The same was seized in the presence of

two mediators. Section - 34 (a) of the Excise Act says possession

of liquor in contravention of the Excise Act and Rule, Notification

etc., is an offence. According to respondent No.4, the petitioner,

contesting candidate of Khammam Assembly Constituency, stored

the said material in his hostel for the purpose of distributing the

same to the voters. It is a factual aspect which this Court cannot

consider in the present writ petition. It is for the Investigating

Officer to consider during the course of investigation.

12. Therefore, the decisions relied upon by learned counsel

for the petitioner in Y.S. Jagan Mohan Reddy1, T. Subbanna2,

Yeduru Sreenivasulu Reddy3, Remidi Srinivas Reddy4, Sunil

Kumar Ahuja5 and Ammisetty Srinivasu6 are not applicable to KL,J

the facts of the present case for the reason that they are in relation

to proceedings in Calendar Cases, but not in crime stage. The

decisions relied upon by him in Kaleru Suresh7 and Gampa

Rohit8 are also not helpful to the petitioner as the facts therein are

altogether different to the facts of the present case.

13. In M/s. Neeharika Infrastructure Private Limited v.

State of Maharashtra 9, a Three-judge Bench of the Hon'ble

Supreme Court laid certain conclusions, for the purpose of

exercising powers by High Courts under Section - 482 of Cr.P.C

and also Article - 226 of the Constitution of India, which are as

under:

"....

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C.

is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an

. AIR 2021 SC 1918 KL,J

enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, KL,J

when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and KL,J

14. In Skoda Auto Volkswagen India Private Limited v.

The State of Uttar Pradesh 10, the Apex Court referring to the

earlier judgments rendered by it has categorically held that the

High Courts in exercise of its inherent powers under Section - 482

of Cr.P.C has to quash the proceedings in criminal cases in rarest of

rare cases with extreme caution.

15. Referring to Section - 55 of the Excise Act, learned

counsel for the petitioner would contend that respondent No.4

conducted search without obtaining prior permission and obtaining

search warrant and, therefore, the search is illegal and in violation

of Section - 55 of the Excise Act. In view of the same, it is apt to

extracted Section - 55 of the Excise Act and the same is as under:

"55. Power to search without warrant:--

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of Excise Sub-Inspector has reason to believe that an offence under section 34, section 35, section 36, 81, section 37 or section 37A has been, is being or is likely to be,

. AIR 2021 SC 931 KL,J

committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief-

(a) at any time by day or by night enter and search any place and seize any thing found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."

16. Thus, the requirement under Section - 55 of the Excise

Act is Commissioner or Executive Magistrate or Police Officer

etc., cannot conduct search without obtaining search warrant. In

the present case, it is not a search by the Commissioner, Executive

Magistrate or Police Officer. Respondent No.4 is the Flying

Square In-charge in respect of Khammam Assembly Constituency.

According to him, the Election Commission of India issued

proceedings, as per which, on receipt of information or suspicion

that there is storage of liquor etc., for the purpose of distributing KL,J

the same to the voters, he can conduct inspections, searches etc.

The Investigating Officer has to consider the said proceedings on

obtaining from respondent No.4. It is a factual aspect which the

Investigating Officer has to consider. Therefore, on the said

ground the petitioner cannot seek quashment of the proceedings in

F.R. No.277 of 2014.

17. As far as the offence under Section - 188 of IPC is

concerned, the Delhi High Court in Bhoop Singh Tyagi v. State11

held that a person booked under Section - 188 of IPC must have

actual knowledge of public servant's order requiring him to do or

abstain from doing some act. It was further held that acquiring or

gaining of such knowledge is a pre-requisite and any proof of

general notification promulgated by a public servant would not

satisfy the requirement.

i) In N.T. Rama Rao v. The State of A.P., rep. by Public

Prosecutor12 while dealing with the offences under Sections - 188

and 283 of IPC, the learned Single Judge held as under:

. 2002 Cri.L.J. 2872

. Criminal Petition No.5323 of 2009, decided on 17.09.2009 KL,J

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.

6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is KL,J

obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.

7) As the complaint has failed due to its unsustainability, the proceedings in their KL,J

entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

ii) In Thota Chandra Sekhar v. The State of Andhra

Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari

District13 relying on various judgments including N.T. Rama

Rao12 and the guidelines laid down by the Apex Court in State of

Haryana v. Bhajan Lal 14, more particularly, guideline No.6,

which says that where there is an express legal bar engrafted in any

of the provisions of the Code or the concerned Act (under which a

criminal proceeding is instituted) to the institution and continuance

of the proceedings and/or where there is a specific provision in the

Code or the concerned Act, providing efficacious remedy to redress

the grievance of the party, a learned Single Judge of High Court of

Judicature at Hyderabad for the States of Telangana and Andhra

Pradesh quashed the proceedings in the said C.C. by exercising

power under Section 482 of Cr.P.C. It further held that the

proceedings shall not be continued due to technical defect of

obtaining prior permission under Section - 155 (2) of Cr.P.C. and

. Criminal Petition No.15248 of 2016, decided on 26.10.2016

. (1992) Supp. 1 SCC 335 KL,J

taking cognizance on the complaint filed by V.R.O. and it is

against the purport of Section - 195 (1) (a) of Cr.P.C.

iii) In view of the above legal position, in the case on hand,

the proceedings are at crime stage. The Investigating Officer has to

consider the said aspects during the course of investigation.

Therefore, the Investigating Officer has to collect the proceedings

from the Election Commission of India and consider the same with

regard to the nexus between the petitioner and the offence under

Section - 188 of IPC keeping in view the principle laid down in the

aforesaid decisions.

18. As discussed above, on the complaint lodged by

respondent No.4, respondent No.3 has registered the aforesaid

crime for the aforesaid offences on 28.04.2014. Vide order

15.05.2014, this Court granted stay of all further proceedings in the

said crime. Thus, there was no chance to the Investigating Officer

to conduct investigation including obtaining proceedings issued by

the Election Commission of India etc., from respondent No.4.

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19. As discussed above, there are several factual aspects to

be considered by the Investigating Officer during course of

investigation, the same are as follows:

i) Seizure of material from Mamatha Medical College

Hostel run by Mamatha Educational Society, to which

the petitioner is the President;

ii) Whether the said material was stored for the purpose

of distributing the same to the voters at the instance of

the petitioner.

iii) Details of purchase/procurement of the said material,

including the details of the persons purchased, mode

of payment, transportation, place/shop of purchase of

the material seized.

iv) Collect the proceedings issued by the Election

Commission of India instructing respondent No.4 to

conduct search and inspection etc., and also the nexus

between the petitioner and the offence under Section -

188 of IPC.

v) Role of the petitioner in the entire episode.

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20. Prima-facie, there are certain specific allegations against

the petitioner as per the complaint of respondent No.4. Therefore,

quashing the proceedings at the budding stage in a crime is

impermissible as held by the Apex Court in the aforesaid decisions.

21. In view of the above said discussion and authoritative

pronouncement of the Apex Court and this Court, this Court is not

inclined to quash the proceedings against the petitioner herein in

the subject crime. The petitioner fails to make out any ground

warranting this Court to quash the proceedings and, therefore, the