State Of Telangana vs Niranjan Kumar Jain

This Criminal Petition is filed to quash the order dated 27.01.2022 passed by the Metropolitan Sessions Judge, Hyderabad in Crl.M.P.No.127 of

2022 in Crime No.10 of 2022.

Heard Sri P. Pratap Reddy, learned Public Prosecutor for the petitioner/State, Sri Duvva Pavan Kumar, learned counsel appearing for respondent

Nos.1, 4, 5 and 9, Sri Kishore Rai, learned counsel appearing for the 2nd respondent, Sri K. Giridhar Raju, learned counsel appearing for respondent

No.3, Sri Dammalapati Srinivas learned senior counsel, representing Sri Vimal Vasi Reddy, learned counsel appearing for 6th respondent, Sri

Gopalakrishna Gokhale, learned counsel appearing for the 7th respondent and Sri E. Uma Maheshwara Rao, learned counsel appearing for 8th

respondent.

Brief facts of the case:-

The respondent Nos.1 to 9 are accused Nos.10 to 18 in Crime No.10 of 2022. The offence alleged against them is under Section 27 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). As per the complaint and the remand report dated 06.01.2022 and

20.01.2022, the allegations against the respondents herein are that they are customers/consumers of A-1 and had addicted in consumption of cocaine

and regularly were in contact with A-1 over whatsapp call. They have purchased the cocaine drug from A-1 illegally for their consumption.

They were receiving cocaine through agents i.e.,A-1, A-2 to A-9 and others and getting delivered at different places at Hyderabad city. Therefore,

they have committed offence which is punishable under Section 27 of the Act.

The petitioner herein has filed the above said Crl.M.P.No.127 of 2022 in Crime No.10 of 2022 seeking custody of A-1, A-10 to A-18 for seven

days. Learned Metropolitan Sessions Judge, Hyderabad vide order dated 27.01.2022 allowed the said application in part granting Police custody of A-

1 and dismissed the petition filed by the petitioner herein seeking Police custody of respondent Nos.1 to 9.

The petitioner herein has filed the above said application seeking Police custody of respondents on the following grounds:

“1. It is to submit that within the stipulated time of 24 hours, Police could not complete the investigation.

It is to submit that the presences of accused are required to trace out the other absconding accused persons.

It is to submit that the presence of accused persons are required to know whether the accused are consumers or sellers and to identify the

other customers and places.

It is to submit that the presence of accused persons are required to know the places/recreations centers, where the accused persons mare

utilizing the drugs/

It is to submit that the presence of accused persons are required to establish the network in between the peddler and customer.â€​

The respondents opposed the said petition on the ground that even as per the remand report, they are customers/consumers and the offence alleged

against them is only under Section 27 of the Act. The punishment prescribed for the said offence is below one year. Therefore, custodial interrogation

of respondents is not required.

The Court below vide impugned order dated 27.01.2022 dismissed the said application filed by the petitioner herein against the respondents on the

ground that even if the guilt of the respondents/Accused is under Section 27 of the Act that they have consumed any narcotic drug and psychotropic

substance, is established, they are provided with an opportunity of rehabilitation as envisaged under Section 39 of the Act. The matter is at crime

stage. The allegation against the respondents herein is that they have consumed cocaine and they are punishable for the offence under Section 27 of

the Act. Therefore, on the said grounds, the Court below dismissed the application filed by the prosecution seeking Police custody of respondents

herein and allowed the petition filed by the prosecution for custodial interrogation of only A-1 on certain conditions.

Sri P. Pratap Reddy, learned Public Prosecutor would submit that Crime No.10 of 2022 is only at crime stage and investigation is pending. The

prosecution has to conduct investigation by collecting bank statements, whatsapp messages and also conversation between the respondents and the

other accused over phone. Their mobile phones have to be seized and messages have to be sent to FSL. Thus, there is every possibility of alteration of

Section of law from Section 27 of the Act to Section 29 of the Act.

The Investigating Officer has to examine with regard to role played by the respondents in commission of offence and that whether they are

consumers or peddlers has to be elicited. The Investigating Officer has to elicit the nexus between the respondents and drug peddlers. Therefore,

custodial interrogation of respondents is required. He would further submit that a day or two days of custodial interrogation of respondents/Accused is

sufficient. The State is trying to arrest the menace of drug mafia by taking all effective measures. In the said course of action, prosecution has filed

the present application seeking custodial interrogation of the respondents and the Court below without considering the contentions raised by the

prosecution, dismissed the said application vide impugned order dated 27.01.2022. The prosecution has every right to seek custodial interrogation of

any accused for the purpose of effective investigation. With the said contentions, he sought to quash the impugned order and for consequential

direction of Police custody of respondents herein for a period of five days.

Whereas, the learned counsel appearing for the respondents would submit that even as per the remand reports both dated 06.01.2022 and

20.01.2022, the respondents are consumers/customers of A-1. There are no allegations of sale or supply of said narcotic drug i.e., cocaine by them.

Even in the petition filed by the prosecution seeking Police custody of the respondents, they have specifically mentioned that presence of respondents

is required to establish nexus between the drug peddler and customers and that their custodial interrogation is required to know places/recreation

centers where the accused persons are utilizing the drugs.

They would further submit that the punishment prescribed for the offence under Section 27 of the Act is six months and one year and therefore,

the same is bailable offence. This Court has dismissed the bail application filed by the respondents on the ground that custody petition filed by the

prosecution is pending. As per Section 39 of the Act, the Court is having power to release certain offenders on probation and in so far as punishment

prescribed for the offence under Section 27 of the Act is concerned, the Court is having power to impose fine and imposition of sentence is not

mandatory. Section 64-A of the Act deals with immunity from prosecution to addicts volunteering for treatment. Thus, the act provides both pre-arrest

and post conviction immunity to accused.

Therefore, the Court below considering the said aspects dismissed the said application filed by the prosecution seeking Police custody of the

respondents. Mobile phones were already seized and the Investigating Officer can collect bank statements, compare conversation on whatsapp

without even taking custody of the respondents herein. With the said submissions, learned counsel appearing for the respondents would submit that the

Court below has rightly dismissed the application filed by the prosecution seeking custody of the respondents.

In view of the rival submissions, it is relevant to note that there is no dispute that the respondents herein are accused Nos.10 to 18 in Crime No.10

of 2022. The offence alleged against the respondents is punishable under Section 27 of the Act which deals with punishment for consumption of any

narcotic drug or psychotropic substance. The punishment prescribed under Section 27(a) of the Act is one year, or with fine which may extend to

twenty thousand rupees, or with both and the punishment prescribed under Section 27(b) of the Act is six months or with fine which may extend to ten

thousand rupees or with both. Thus, the offence alleged against the respondents is bailable offence. The maximum punishment prescribed is one year

or fine or with both. It is also relevant to note that Section 29 of the Act deals with punishment for abetment and criminal conspiracy which is a non

bailable offence. Section 39 of the Act deals with power of Court to release certain offenders on probation. Section 64-A of the Act deals with

immunity from prosecution to addicts volunteering for treatment.

A perusal of the impugned order would reveal that the Court referring to Section 27 and 39 of the Act gave a specific finding that the allegations

against the respondents is that they have consumed narcotic drug i.e., cocaine. The punishment prescribed under Section 27 of the Act is below seven

years and the same is bailable offence. Therefore, custodial interrogation of respondents herein i.e., A-10 to A-18 is not required. Since there are

specific allegations against the accused No.1 and the offences alleged against accused No.1 are under Section 8(c) read with 20(b)(ii)(c) of the Act,

the Court below has given Police custody of A-1 from 29.01.2022 to 02.02.2022.

In the 2nd remand report, in respect of respondents, there is specific mention that respondents herein/A-2 to A-22 are customers/consumers of A-

1 who were addicted in consuming drugs. They are regularly in contact with A-1 over whatsapp call on several occasions i.e., 03 to 08 times A-10 to

A-22 have purchased drugs from A-1 illegally for their consumption. A-10 to A-22 were receiving cocaine through their agents of A-1 i.e., A2 to A9

and others and were getting delivered in different places at Hyderabad city. It is also specifically mentioned in the said remand report that A-10 to A-

22 have committed offence which is liable to be punished under the Act. A-4 to A-9 and A-19 to A-22 are absconding.

Even in the grounds of the present petition, the petitioner herein has specifically mentioned that A-10 to A-22 are customers/consumers of A-1. In

the remand reports and also in the present petition filed under Section 482 Cr.P.C there is a specific mention about seizing of mobile phones.

Respondent Nos.1 to 4 are contactors, respondent Nos.2, 3 and 5 are in business, respondent No.6 is a student and Respondent Nos.7 and 8 are

private employees. Even going by the custody petition and remand report, the role played by the respondents is customers/consumers of the narcotic

drug. There is no specific mention that they have committed the said offence in an organized manner and there is every possibility of hampering of

witnesses and tampering of evidence. There is no specific mention that respondents are highly influential persons and there is every possibility of

interfering with the investigation so that the Investigating Officer may not be in a position to conduct investigation in a effective manner. It is relevant

to note that confessional statements of arrested accused were recorded.

It is relevant to note that in the remand reports dated 06.01.2022 and 20.01.2022, in the custody petition and in the present petition, there is no

allegation, much less specific allegation against the respondents herein with regard to abetment and criminal conspiracy to commit an offence

punishable under the Act. There is no basis for the contention of learned Public Prosecutor that there is every possibility of alteration of section of law

from Section 27 to 29 of the Act. This is altogether a new ground/contention taken by the prosecution for the first time in the present petition.

Therefore, the said contention of learned Public Prosecutor cannot be accepted.

As rightly contended by the learned counsel for the respondents, the Investigating Officer has already seized mobile phones. Even the

Investigating Officer can collect bank statements and verify nexus between A-1 and other accused and respondents in commission of offence. For the

purpose of collecting bank statements, sending whatsapp messages and to examine mobile conversation between respondents and other accused there

is no need of custodial interrogation of respondents herein. As stated above, it is not an organized crime. The prime allegations are against first

respondent. In view of the discussion supra, the contention of learned Public Prosecutor that the Investigating Officer has to conduct investigation with

regard to abetment and criminal conspiracy and therefore, custodial interrogation of respondents is necessary is not acceptable. The facts in Asim

Shariff Vs. National Investigation Agency Crl.A.No(s) 949 of 2019 (Arising out of SLP(Crl) No(s). 1253 of 2019) are different to the facts of the

present case.

Article 21 of the Constitution of India deals with protection of life and personal liberty of citizen of India. It is an important fundamental right.

Custodial interrogation is a weapon wielded by the Investigating Agencies to secure clinching evidence against the accused. Custodial interrogation is

indispensable to unearth the truth in a given case is a substantial premise of such custody. Nature and gravity of the allegations, the role attributed to

the accused and evidence in support of custodial application is necessary for effective interrogation. Thus, the prosecution has to necessarily establish

by producing sufficient material to seek custodial interrogation of any accused. Court has to consider the same and pass orders. Police custody cannot

be granted in a mechanical and routine manner, which effects the right guaranteed to a citizen under Article 21 of the Constitution of India.

It is relevant to note that the Apex Court in Satyajit Ballubhai Desai Vs. State of Gujarath (2014) 14 SCC 434 had an occasion to examine the

scope of custody petition and custodial interrogation. Referring to the principle laid down by it in catena of decisions, power of Magistrate under

section 167 of Cr.P.C, 57 of Cr.P.C. and other provisions, the Apex Court held that the plea for grant of police remand should be an exception and not

the rule and the Investigating Officer ought to advance strong reasons seeking police remand for further investigation. The Apex Court found fault

with the casual approach of learned Magistrate and the High court in dealing with police custody petition. Thus, there should be valid and sufficiently

weighty reasons for seeking police custody, which are lacking in the present case.

As stated above, petitioner herein sought custodial interrogation of the respondents mainly on the ground that respondents are consumers and

Investigating Officer required to know whether the respondents are consumers or sellers and to identify the other customers and places, to know the

places/recreation centers where the accused persons are utilizing the drugs, to establish the network in between the peddler and customer. Whereas in

the remand application there is a specific mention that respondents herein are only customers/consumers of A-1 and they have purchased narcotic

drug i.e. cocaine from A-1. At the cost of repetition, even as per the remand report and the present petition the respondents have committed offence

which is punishable under Section 27 of the Act, which is bailable offence and maximum punishment prescribed is only one year. It is not an organized

crime. The Investigating Officer can conduct investigation by collecting bank statements, call data and whatsapp chats by sending the same to FSL.

Therefore, in a matter like this, custodial interrogation of respondents is not required. Considering the said facts, more particularly the nature of

allegations levelled against respondents, punishment prescribed under Sections 27 and 39 of the Act, the Court below rightly dismissed the application

filed by the petitioner/prosecution seeking custodial interrogation of the respondents herein. It is a reasoned order and is well-founded. Therefore,

there is no need to interfere with the said order. Petitioner failed to make out any case to interfere with the impugned order dated 27.01.2022.

In view of the above said discussion, this Criminal Petition is liable to be dismissed and accordingly, dismissed. However, liberty is granted to the

Investigating Officer in Crime No.10 of 2022 pending on the file of Panjagutta Police Station, Hyderabad, to conduct investigation in accordance with

law without being influenced with any of the findings in the present order.

Miscellaneous petitions, if any, pending in this criminal petition, shall stand closed.