R.D.Behl vs State of Punjab

T.H.B. Chalapathi, J.

All the three petitions are filed by the petitioner namely R.D. Behl for registration of the case against respondents 2 to 8 and claiming compensation for false prosecution and also claiming damages of Rs. 10 lacs for his harassment and troubles and for malicious prosecution.

According to the petitioner, he is a Registered Medical Practitioner and practising Ayurvedic medicine at Sadar Bazar, Dhuri. According to him, he was falsely prosecuted in three cases for the offences under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (herein referred to as the `Act'') during the years 1994 to 1998. All the three cases ended in acquittal. In all the three cases the petitioner was found to be in possession of camphorated opium tincture containing alcohol and morphine which according to the petitioner is required for his profession. Though the respondents knew fully well that the petitioner was not involved in any N.D. P.S. case and that the alleged contraband does not come within the definition of Narcotic Drugs and Psychotropic Substances, nevertheless the respondents 1 to 8 prosecuted him for the offences under the said Act with a malicious intention. Therefore, he filed these petitions directing the 1st respondent to register a criminal case against respondents 2 to 8 and to pay him a sum of Rs. one lac under Section 250, Criminal Procedure Code for the false prosecution and also to pay a sum of Rs. ten lacs as damages to the petitioner for malicious prosecution.

The Deputy Director, Forensic Science Laboratory, Punjab has filed a reply by way of affidavit. According to him, the samples sent for testing were examined in the Laboratory and the Deputy Director gave his report as follows :

"On separately analysing the contents of the quarter bottles (Nos. 1 to 21) under reference meconic acid, morphine, camphor and ethyl have been found present in these samples. Meconic acid and morphine are the active ingredients of opium. The percentage of morphine and ethyle alcohol is as per enclosure."

It is further averred in the reply that as per clause (xi)a and (xi)b of Section 2 of N.D.P.S. Act, 1985 such preparations may be treated as opium derivatives and under the Act a manufactured drug means opium derivatives etc. The possession, sale and purchase of manufactured drugs in contravention of the Act is punishable under Section 21 of Chapter IV of this Act. He further averred that sample bottles in FIR No. 156 dated 6.8.1997 showed that they contained 1.2% morphine and 60.10% of ethyl alcohol and other ingredients i.e. meconic and camphor were also present in these samples. Thus, according to the respondents, prosecution is not without any basis.

It is useful to refer to the judgments by which the petitioner was acquitted. According to the petitioner he has been prosecuted in three cases. The first case is FIR No. 63 dated 10.5.1994, the second case is FIR No. 190 dated 14.9.1995 and the third case is FIR No. 156 dated 6.6.1997. In FIR No. 63 dated 10.5.1994, the petitioner was acquitted by the learned Sessions Judge by his judgment dated January 17, 1998. In paragraph 7 of his judgment, the learned Sessions Judge observed as follows :

"The search in this case was conducted by Excise Inspector, but before search, no offer, as required under Section 50 of the Act, was given to the accused. The provisions of Section 50 of the Act are mandatory and its nonobservance entitles the accused to the benefit of doubt. Even otherwise no offence is made out against the accused even if it be believed that the recovery of drugs took place from the accused. According to the report Exhibit PE of the Chemical Examiner, the sample were of camphorated opium tincture. This drug is neither a psychotropic nor manufactured drug. The accused is an Ayurvedic petitioner and is entitled to keep this drug."

The report of the Chemical Examiner and the Forensic Science Laboratory have been referred to by the learned Sessions Judge. So, it cannot be said that the prosecution is without any basis. The judgment in the case arising out of FIR No. 190 dated 14.9.1995 also shows that the accused was acquitted because of unexplained delay of 25 days in sending the sample to the office of Director, Forensic Science Laboratory, Punjab.

In these petitions, it cannot be said the prosecution is malicious and without any reasonable and probable cause. It is always open to the petitioner to file the civil suit for malicious prosecution wherein he can prove that the prosecution ended in acquittal as it was malicious, without reasonable and probable cause. This Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. will not decide the disputed questions of fact. If the prosecution which is malicious ended in acquittal and that the case has been initiated against the petitioner without any reasonable and probable cause, it is always open to him, as already observed, to file suit for damages for malicious prosecution. This Court cannot grant any relief. To my mind, these petitions are vexatious and the remedy available to the petitioner is to file a suit for malicious prosecution. This Court cannot grant any compensation under the provisions of Criminal Procedure Code since the acquittal was based not on the ground that the prosecution against the petitioner was totally false, but on the ground that the procedure required under Section 50 of the N.D.P.S. Act was not followed in one case and in another case, there is unexplained delay of 25 days in sending the samples to the Chemical Examiner.

In these circumstances, I am of the opinion that these petitions are liable to be dismissed. Accordingly, they are dismissed with liberty to the petitioner to seek appropriate remedy available to him under law.

Petitions dismissed.