AMAR NATH GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) POONAM Srivastava, J. Heard Learned Counsel for the applicants and learned A. G. A. for the State.

(2.) THIS application under Section 482 Cr. P. C. has been filed for quashing the entire proceeding in Special Criminal Case No. 32 of 1998, State v. Raj Bir and Amar Nath Gupta, pending in the Court of Special Judge, N. D. P. S. Act, Etawah. The applicants are accused in the case registered at Case Crime No. 176 of 1992 under Section 8/20 N. D. P. S. Act, Police Station Jaswant Nagar, Etawah. The First Information Report was registered on 20-6-1992 at 22. 40 hours and the occurrence is alleged to have taken place on 20-6-1992 at 21. 30 hours. The recovery shown from possession of the applicants if of "bhang''. After completion of the investigation, police submitted Final Report No. 7 of 1993 but the learned Magistrate refused to accept the final report and took cognizance, non- bailable warrants were issued against the applicants vide order dated 14-5-1998, which is also under challenge. The applicants have submitted that after the First Information Report was lodged, the Sub-Inspector proceeded with the investigation after converting the case under Section 60 Excise Act. Subsequently, on the direction of the Circle Officer, offence was investigated under the provisions of N. D. P. S. Act as well as under Section 60 Excise Act. The applicants have annexed Parcha of the case diary alongwith Final Report Nos. 7 of 1993 dated 18-4-1993 as Annexure No. 4 and 4-A to the affidavit. The order dated 14-5-1998 has been quoted in Paragraph No. 9 of the affidavit whereby non-bailable warrants were issued at the first instance.

(3.) IN the instant case, the allegations in the First INformation Report is that the applicants were in possession of narcotics substance and the substance alleged by the prosecution is "bhang", which is admittedly not covered under the N. D. P. S. Act. IN the circumstances, there is no chance of conviction of the applicants by the Special Judge N. D. P. S. Act Etawah for the offence alleged against them and in the case proceedings are allowed to continue, it is nothing short of abuse of the process of the Court. Similar view has been envisaged in a number of other cases State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. , 1982 (3) SCR page 121; State of Haryana & Ors. v. Chaudhary Bhajan Lal, 1990 (2) JIC 997 (SC) : 1991 (28) ACC 111 (S. C. ). The apex Court has considered all the cases decided earlier and carved out seven categories in the case of Chaudhary Bhajan Lal (supra ). They very first category is : "where the allegations made in the First INformation Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. "