Law Web: Whether police must register FIR If the offence is about to happen?

Learned counsel for the petitioners have placed

reliance on the judgment in the case of Lalita Kumari vs

Government of Uttar Pradesh and Others [(2014) 2 SCC

1] in support of their argument that the seizure panchanama

conducted by the appellants without registration of FIR was

illegal.

10. Examined whether the ratio in Lalita Kumari

(supra) is applicable in a situation where a police officer only

receives a credible or secret information about an offence

which is about to be committed, I may with great respect

observe that the primary duty of police is to prevent an

offence from happening; immediately after receiving the

information, a police officer has to proceed to spot for

averting the crime, and taking such other measures as the

situation demands. In Lalita Kumari (supra), the focus is

on the duty of Station House Officer once he receives

information about commission of offence, that means the

information should disclose a crime being already

committed. And in such a situation, if the crime is

cognizable, the Station House Officer is bound to register FIR

without wasting time. But the secret information does not

disclose a crime being committed, it only alerts the police

about a crime which is about to occur. The police officer

who receives such information has to proceed to spot for

preventing the crime or to take such other measures that the

situation demands. Thereafter if he prepares a report, it may

be treated as FIR for further course of action. Sometimes,

offences do take place in the presence of the police officer. In

such a situation, his first duty is to arrest the accused and

collect the evidence, and not registration of FIR.

11. In the case on hand what the police officer

received was a report about likelihood of offences under

NDPS Act being committed, the informant only suspected

possession of contraband substances, regarding which no

FIR could be registered without ascertaining the truth in the

information. The seizure panchanama discloses that the

petitioners and other accused possessed contraband

substance for the purpose of selling them. He seized the

substances and made a report of the same. No error can be

found in it.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION No.3073 OF 2020

Tasleem N.P @ Muhammed Thaslim N P Vs State of Karnataka,

BEFORE

MR. JUSTICE SREENIVAS HARISH KUMAR

DATED: 01ST DAY OF OCTOBER 2020

This Criminal Petition is filed under Section 439

Cr.P.C praying to enlarge the petitioner on bail in

Cr.No.110/2020 of Hulimavu Police Station, Bengaluru City

for the offence punishable under Sections 20(b), 8(c), 22(b),

22(c) of NDPS ACT.

These Criminal Petitions having been heard and

reserved on 23.09.2020, coming on for pronouncement this

day, through video conferencing the court pronounced the

following:

ORDER

These three criminal petitions are disposed of by a

common order as they arise from same crime number. The

petitioner in Crl.P.No. 3073/2020 is accused No.1. Accused

No.4 is the petitioner in Crl.P.No. 3213/2020. The petitioner

in Crl.P.No. 3383/2020 is accused No.5. All these

petitioners have been implicated in Cr.No. 110/2020 in

relation to offences punishable under sections 8(c), 22(b) and

22(c) of Narcotic Drugs and Psychotropic Substances Act,

1985.

2. Heard Smt. Sofia and Smt. Vishruti Vijay, learned

counsel appearing for the petitioners and Smt.

K.P.Yashodha, learned HCGP for all the respondents.

3. The prosecution case is that the Police Inspector

received credible information on 11.6.2020 that about six

persons living in a house bearing No. 65, Kapila Cross Road,

Behind Maruthi Dental College, Vinayaka Layout, Hulimavu,

were possessing narcotic substances such as ganja, MDMA,

ecstasy tablets and LSD strips and they were about to sell

those substances. Immediately the Police Inspector

conducted a raid on that house, seized the substances and

arrested those persons.

4. Learned counsel for the petitioners in all the cases

have argued that the police did not seize any contraband

substance from the conscious possession of the petitioners.

The prosecution has not yet obtained the qualitative and

quantitative report from the FSL, it is mandatory that

according to Standing Instruction 1/1988, the report must

be obtained within 15 days from the date of sending the

narcotic drug to the FSL. There is no compliance of

Standing Instructions. For this reason, section 37 of the

NDPS Act cannot be invoked. They also argued that the

police officer did not register FIR soon after receiving the

credible information. They proceeded to the spot to conduct

search without registering FIR. Therefore, the whole seizure

is bad in law and for this reason, the seizure panchanama

cannot be looked into for any purpose. Relying upon

number of authorities in support of their case, they

submitted that all the petitions must be allowed and the

petitioners enlarged on bail.

5. Learned High Court Government Pleader argued

that there is no infraction of procedure. The petitioners and

other accused were also staying in the house where the raid

was conducted. The contraband substances were found

inside the house and therefore the burden is on the accused

to prove that they were not aware of the contents of the bag.

She referred to section 35 of the NDPS Act. She also

submitted that the police officer has followed every

procedure and the same is disclosed in the seizure mahazar.

The seizure was according to law. She further submitted

that the seized substance was sent to FSL within time and

the reason for delay in receiving the report is due to

restriction imposed for controlling infectious pandemic

Covid-19. Moreover at the stage of deciding the bail

application, this aspect cannot be given so much of

importance because in the seizure mahazar, it is clearly

stated about the quantity and the nature of the substances

seized from the possession of the accused. She referred to

the order passed by the co-ordinate bench of this court in

Crl. P. 1298/2020 to argue that non-compliance of the

Standing Instructions is not a ground for granting bail. She

submitted that the coordinate bench refused bail by referring

to the judgment of the Supreme Court in the case of

Superintendent, Narcotics Control Bureau, Chennai, vs

R. Paulsamy [(2000) 9 SCC 549]. She argued for

dismissing the petitions.

6. Since the counsel for the petitioners highlighted the

point that the contraband substances were not seized from

the conscious possession of the accused, it is necessary to

state that the word ‘conscious’ is related with the mental

state of a person and his knowledge about something. It

does not take the attributes of physical possession. If a bag

containing contraband is found in the house of the accused,

it goes without saying that the first impression of an

ordinary prudent man is that the bag belongs to the accused

and he must be aware of its contents. If he takes a stand

that he was not aware of the contents, the burden is on him

to establish it. Thus seen, the learned counsel for the

petitioners have made a futile argument that there was no

seizure from the conscious possession of the petitioners.

7. The seizure panchanama discloses recording of

reasons by the police officer for not being able to apply for

search warrant and also compliance of proviso to section

42(1) of the NDPS Act. Panchanama also shows search

being made in the presence of a gazetted officer. Therefore

there is due compliance of all the requirements envisaged

under NDPS Act.

8. Reference may be made to the judgments cited by

learned counsel for the petitioners. In Ben Okoro vs State

of Karnataka [Crl. P. No. 8644/2017] bail was granted to

the accused taking note of the fact that the qualitative and

quantitative report was not obtained within 15 days as per

Standing Instruction No. 1/1988. In the case of Kelsi Katte

Mahammed Shakir vs The Superintendent of Customs,

Air Intelligence Unit [Criminal Petition No. 5402/2018]

also, this court was inclined to grant bail noticing the fact

that the FSL report was not obtained within fifteen days.

But, in Crl.P.No.1298/2020 (Nonso Joachin Udedike vs

State of Karnataka decided on 9.6.2020), the judgment

of the Supreme Court in Paulsamy (supra) has been

referred to hold that it is too early to take into account all

the formalities to be complied with for the purpose of

deciding a bail application. Therefore, if the investigation

officer could not obtain the FSL report within 15 days, it is

not so significant that too when there are other materials

indicating existence of prima facie materials about the

involvement of the petitioners in commission of offences.

9. Learned counsel for the petitioners have placed