1 [CASE NUMBER] THE HIGH COURT OF MADHYA PRADESH [CASE NUMBER] Rohit Verma vs. State of M.P. Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], learned Govt. Advocate for the State. ORDER
27.08.2019 Single Bench: [ENTITY], J.
This petition under [SECTION] [ACT] has been preferred seeking quashment of entire criminal proceedings initiated against him in [CASE NUMBER] pending in the Court of Special Judge (N.D.P.S.) District Tikamgarh.
2. The petitioner has been arrested on 12.08.2017 in connection with [CASE NUMBER] registered by Police Station Niwari, District Tikamgarh for offence punishable under [SECTION] of [ACT].
3. As per prosecution case, on 12.08.2017 at about 5:40 PM, on an information, police reached the spot and intercepted one Car wherefrom 43 Kg. illicit Ganja has been seized. Four persons were sitting in the Car including the driver, after following procedure as provided [ACT], all of them were arrested. Thereafter, a case as mentioned above has been registered against the accused persons and after investigation charge sheet is filed against all the accused persons.
4. Learned counsel for the petitioner has submitted that the petitioner is innocent and has been falsely implicated in the case.
Learned counsel for the petitioner has placed reliance on the judgments of Apex Court in the case of [PRECEDENT] decided on 27.04.2018 to contend that mandatory requirement under [SECTION] of [ACT] has not been complied. Further, it is contended that informant and investigating officer are the same in the case, whereas, as per the law laid down by the Apex Court in the case of [PRECEDENT] decided in [CASE NUMBER], informant and investigating officer cannot be the same person. Moreso, seizure witnesses have turned hostile. The petitioner is in jail since 12.08.2017. With these contentions & submissions prayer is made to quash entire criminal proceedings initiated against the petitioner in [CASE NUMBER] pending in the Court of Special Judge (N.D.P.S.) District Tikamgarh.
5. Per contra, learned counsel appearing on behalf of the State has opposed the petition and prayed for its rejection.
6. Heard rival contentions of learned counsel for both the parties and perused entire material available on record including the case diary.
7. In the case of [PRECEDENT] (supra) there was secret information received from one unknown informant on that basis personal search was conducted on accused and contraband Charas was recovered. While, in the present case, the petitioner was carrying contraband in a car. Carrying contraband in a car cannot be said to be 'by the person' necessitating compliance of [SECTION] of [ACT] for personal search. Reference in this regard can be made to the decision in [PRECEDENT] and [PRECEDENT].
8. So far as the argument advanced by counsel for the petitioner that investigating officer and informer in this case is the same person, is concerned, the preliminary proceeding from recording of secret information upto lodging of FIR was performed by S.I. Madhvi Katare P.S.Niwari, District Tikamgarh, but after lodging of the FIR, she has not conducted any investigation in this matter. After lodging of the FIR, main Investigating Officer in this matter is [ENTITY], SHO, P.S.Niwari, District Tikamgarh therefore, informer and Investigating Officer, both are the different persons, hence, the argument on this point has no force.
9. Furthermore, Hon'ble Supreme Court in the case of [PRECEDENT] has held as under :
"The courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. The evidence of the investigating officers cannot be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."
10. With regard to the contention raised by learned counsel for the petitioner that seizure witnesses have turned hostile, reference can be made to the decision in [PRECEDENT]; wherein, it is held that merely because independent witnesses of search and seizure turned hostile, Police Official witnesses could not be disbelieved for extending acquittal to accused.
11. The Apex Court in the case of [PRECEDENT] has held that if prima facie offences made out on the basis of the allegations made in the complaint without going into truth or otherwise of the allegations, High Court cannot exercise its power under [SECTION].
12. Further, it is well settled that the inherent powers, under [SECTION] of the Code, are to be exercised ex debito justitiae to prevent abuse of the process of Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, can not be decided without sufficient material. No other contention of petitioner are related to his defence which may be raised and proved during trial.
13. Considering the aforesaid legal position and the entire material available on record as also keeping in view the fact that now the trial is at an advance stage, no interference under the inherent powers is called for.
14. In the result, this petition under [SECTION] [ACT] is hereby dismissed.
([ENTITY]) Judge anand