HIGH COURT OF CHHATTISGARH BIL Writ‘petition (S) No; 453‘s bf 2007 RP . Sharma Versus State of Chhattisgarh and others 85 Writ Petition (S) No. 4061 of 2007 Asish Washnik h Versus ' State of Chhattisgarh and others ORDEI§ Post for 17/. V ‘, R§ ¢ i ‘ ‘ -A.~TF_.‘;T\ ‘ ‘ L Sdl- Sunil Kumar Sinha Jude AS m. “w.A.. ; ~ . mwsmvn»hmng,‘,—vw¢m .A m o g RP. Sharma, Agad about 45 years, Shri G.P. Sharma Sub Inspector ped at Poice Staon Kwardha, D ct Kawarda, R Poce ln Kawaa, D1stct Kawardha (C ) , o‘jt l tl a ls‘; 1 h /o ll Le rNlh r1 G Versus RESPONDENTS tat Ctlgrh h h 1. Se of hhatsa Trough e a Mantralaya, alpu Bhawn Rr ‘. Th ctor General o Poce, ce Heaquarter Rpur ) d al C G Gerl of 3. he Inspector Bilaspur (C.G.) 86 Writ Petition (S) No. 4061 of 2007 PETITIONER Ashish Washnik, Aged about 33 years, S/o. J.L. Washnik, Presently posteq at Ratanpur, Police Station as ”ub- Inspector, District Bilaspur (C.G.) g: l él Versus RESPONDENTS 1. State of Chhattisgarh Through Tthe Secretary, Department of Home, D K S Bhawan, Mantralaya, Ralpur Headquarter Raipur (C.G.) 3. The Inspector General of Pe,i r Bilaspur (C.G.) Writ Petitions under Article 226 of the Constitution of India 2. The D1rector General of Pollce, PJhce Appearance: Shrl Anand Kurnar Tlwarl counsel for the petltloners the Wrlt Pet1t1ons Shrl Pradeep Slngh Panel Lawyer for the State/respo dents 1n both the Wrlt Pet1t1ons HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 4536 of 2007 PETITIONER 2 e Dlre f h P‘h nea T ”r o‘c 1 W .P.(S) Nos. 4536/2007 & 4061/2007 ORDER (lb. 1 1.2007) 1 Sunil Kumar Sinha, J (1) These two petitioners, being tha Sub~1ns_pectors, wer ‘r'pos‘ted at P S Ratanpur, District Bilaspur C G ) Petitioner R P hafma received mformation on 173 2007 that accused Sani‘ram @ Buchwa Gond has kept Ganja 1n h1s house After prep‘ rmg a Panchnama (EX.-P/ 1) and making necessary enry 1 1n Rajnamchasana No 694 (Ex P/l6), he gave informatio 4‘; to 1his gave notlce to the accused and after getting consent for search w higher officers (EX ’P/ 17) and left for the scene of occurre; ce He made search of his house. Ultimately, Ganja 1n quantity f 4 Kg and 200 gins was found in kitchen of the house. A Parr hnama (Ex P/ 7) was prepared and after the formalities of weighin" etc., it was taken into police custody The Ganja was sent to 9 SL for examination from Where a pos1t1ve report (Ex P/21) was re (2) After completion of usual investigation, the charge s I‘eet was filed The trial was conducted before the Court of SpeCia. Judge, eived l where the petitioner- RP Shama was examined as11 PW 5 Petitioner~ Ashish Washnik was also examined as P Sharma (PW 5) gave eVidence about the documents per receivmg of information, search made by the police party, of the contraband sending the contraband to FSL and the report etc. Whereas, Ashish Washnik (PW 4) gave ev1de$ce hat he had also gone with raid party and had returned back a them. Other prosecution witnesses were also examin Panch witness namely Ballu @ Balram Yadav (PW-1) supported the prosecution case and he happened to be th of the accused, therefore, the Court did not rely on his and ultimately, in absence of corroboration of evidence of p titioner RP. Sharma (PW-5), acquitted the accused from the charg s under Section 2O (B) (2) (b) of the N.D.P.S. Act vide judgment d June, 2007. E a , l i a: W t lli" e”, e j ‘K it 3 W’P.(S) Nos; 4536/2007 & E4061/2007 (3) While recording the judgment of acquittal the Speéfal Judge made observat1ons that though petltloner-Ash1sh Was] through out present and he was holdmg the post of S H . not conduct the 1nqu1ry, whlch was 1n Vlolatlon of Para— Police Regulation and he allowed the inquiry to be c Inspector. The Court observed that being senior person, ;: H have conducted the inquiry The Court further obse‘ ed that during the 1nqu1ry, seizure memo of contraband was not prepared Therefore the Court passed the following remarks vide Par “ wwmwmaw WW%W$H%WW$%W mennmwnmg‘ame Wnanmmmw Iaafaviaaé’rmfa WW W W W W W Weiwéwwmggm an] ” zr u (4) It is against these remarks, the petitioners have filed these Writ Petitions for their expunction. (5) Learned counsel for the petitioners ag'ued that the adverse r back‘wf :Jlr remarks are based on no material on record He also a they were totally unwarranted and were passed behind th the petitioners as they were not given opportunity of b ' ' before passing such remarks. (6) the petitioners and Mr. Pradeep Singh, learned Panel La: the State. ’ (7) For exerc1s1ng the Jurisdiction to expunge the rem éks 1t is punge reasons to be It. l if r to be kept 1n mlnd that the power can not be exerc1sed to the integral part of the judgment i.e. the verdict and I have heard Mr. Anand Kumar Tiwari, learned co" nsel for Iv o wi, % m, f W) ‘ l :px i 3g 4 W.P.(S) Nos. 4536/2007 & 4061/2007 determined between the remarks coming forward ostensibli as a part of Judgment and that belng 1n reahty 1ts 1ntegral part; The Judgment on merlts or 1n eubstance and the objectlonable‘ p" ought n‘ot to have‘been there in the judgment. It must b justified that the passage complained of is Wholly irrelevai’ unjustifiable and the expunction will not affect the judgmentghr the reason or the order. The power is to be exercised in limited rriiLannEr with great caution and circumspection keeping in mind the principles, finality and inviolability of the judgment 85 thatj-all to secure the ends ofjustice. (8) In the matter of Manish Dixit and others -Vs- saw Rajasthan, (2001 CRI L J 133 [Supreme CourtJ), the Apex Court observed v1de Para 43 of the judgment as follows “43. Even those apart th1s Court has repeatedjy cautioned that before any castigatlng remarks are ma ‘e by the Court against any person, particularly wh n such remarks could ensue serious consequences on x l future career of the person concerned he should h been given an opportunlty of being heard 1n the matt r 1n respect of the proposed remarks or strlctures S 4F; t i u an opportunity is the baSic requirement for otherw1 e the offending remarks would be in Violation of the princ1ples of natural justice. In this case such opportunity was not given to PW 3O (Devendra Kuml‘ Sharma) ‘(The State of Uttar Pradesh Mohammad Natm, AIR 1964 SC 703 CH Jage R Inspector of Police and another —Vs- Hans Rj Midha, (1972) 1 SCC 181 RK Lakshmanan AK Srinivasan and another, (1975) 2 SCC 46 , Niranjan Patnaik —Vs- Sashibhusan Kar ad another, AIR 1986 SC 819 & State of Karnatak kj' ; Vs- Registrar General, High Court of Karnata d: AIR 2000 SC 2626). 4 e gyk a; a f it — j; J 5 w.P.(S) Nos. 4536/2007 & 4061/2007 (9) In State of Bihar —Vs- Lal Krishna Advani andlothers, (2003) 8’ SCC 361, it was observed by the Apex Cojgrt that strictures cannot be passed against an individual without'fmaking him a party and without giving an opportunity to be heard since the right to reputation is an individual’s fundamental right. The reference of Advani’s case is also in the judgment of LE} ate of Maharashtra ~Vs- Public Concern for Governance Trilst and others with Vinay Mohan Lal -Vs- State o£ Maharashtra and others (Common iudgment in both the cases, [(2007 3 Supreme Court Cases 587] 1n whlch also the Apex Court a: ain opined‘ that when an authonty takes a dec1s1on which may have of natural Justice would at once come into play (10) If we apply these principles in the present case, 11‘ would’ appear that firstly, the observation on the ground that memo was prepared is unJustified It comes 1n Para No 8 of the impugned Judgment that when the police force reache house of the accused they gave him notice under Section 5D of the N D P S Act and thereafter his personal search was made and nothing was found 1n the said search A memo (Ex P 6) was prepared But when the house of the accused was searched‘, Ganja in quanitity of 4 Kg and 200 gms was found in the Kitchen and a seizure memo was prepared Vide Ex P/7 c1v1l consequences and affects the rlghts of a lperson, the prfi ”t Fles )‘l, l thereafterk other formalitles were completed Therefore, 1t is clear that the seizure of contraband was prepared and the observatlons pertalning to it is unfounded (11) So far as not conducting inquiry by Ashish Washnik (PW-4) under Para—579 of the Police Regulation 1s concerned at the most 1t can be an irregularity but on this only, the observations trade by the learned Special Judge were not justified. of not (12) If the prosecution ends into acquittal for the reason supporting the case by prosecution Witnesses other than the officers ) that investigation and the police officers involved 1n the case,‘ f If the i» M J l t E l l police itself does not lead to suspiCion against the ‘ n d W.P.(S) Nos. 4536/2007 & 4061/2007 nvestigation appears to be true, obJective, logical chronological and frultful leavmg no lacuna from thelr s1de, no blamet i can be made to the police officers, if such investigation is not supported by the other Witncsses in the Court. Q} (13) Moreover, these two Witnesses were not given an opportunity of hearing regarding the proposed remarks or strictures to be passed agalnst them Certamly, 1f such remarks could senous consequences on the future career of the concerned, they should have been given an opportunity o T‘ which the remarks were passed or against the proposed remarks to be passed against them. (14 For the foregoing reasons, I hold observations/remarks made by the Special Judge a petitioners behind their back vide Para—:13 of the judgment were totally unwarranted and they require expu (15) The above remarks against both the petitioners c ained in o ; Para—13 of the impugned Judgment are expunged They shall not be read or given effect to against the petitioners. The petitions are allowed to the extent indicated above. l (16) There shall be no orders as to costs. Sd/— Judge r Sinha Sunil Kuma vatti i > ensure - person f being heard in the matter in respect of the proposed remhrks or strictures Such an opportunity is the bas1c requirement otherwise the offending remarks would be in Violation of prinCiples of natural Justice In the present case admittedly, no opportunity was given to the petitioners to say anything against the Circumstances on ) g ' ‘ r"