Point of Law:Seizer of contraband – Rejection of bail - Contraband seized is a commercial quantity and therefore Section 37 of the NDPS Act, is applicable to the case of the petitioner

ORDER :

By this petition, the petitioner has sought to quash the order dated 04.11.2017, passed by the X Addl. Chief Metropolitan Magistrate, Bangalore, dismissing the complaint filed by the petitioner under section 2(d) read with section 156(3) of Cr.P.C.

2. The petitioner presented a complaint before the X Addl. Chief Metropolitan Magistrate at Bangalore under section 2(d) read with section 156(3) of Cr.P.C., seeking to refer the same to the jurisdictional Indiranagar Police Station, Bangalore, for investigation under section 156(3) of Cr.P.C. In the complaint, he alleged that, on October 22, 2017, “Sunday Times”, an English Newspaper, carried a news item on the 1st and 5th page, pertaining to the boycott of Tipu Jayanthi Celebrations, slated to be held on November 10, 2017 at Bangalore, by the State BJP leaders. The said news item contained details about Union Minister and Karwar MP Sri.Anant Kumar Hegde (accused No.1) writing to the Government Chief Secretary, asking him to drop his name from the official invitees to the function, saying he was boycotting it. It was reported as under:

“On Friday, Hegde had tweeted: ‘Conveyed # Karnataka Govt. NOT to invite me to shameful event of glorifying a person known as brutal killer, wretched fanatic & mass rapist.’”

On Page 5 of the newspaper, it was reported that:

“Hegde said ‘If the Government prints my name on the invitation card, I will attend the function and raise slogans from the dais against Tipu. If Siddaramaiah has the guts, let him stop me.’”

Further the same page of the newspaper contained a caption

“Congress insulting Hindus by making Tipu Jayanthi: Ravi”

The news item was to the following effect:-

“BJP spokesperson and MLA C.T.Ravi tweeted: ‘Communal Congress led by arrogant @ Siddaramaiah is repeatedly insulting Hindus by celebrating Tyrant Tipu Jayanthi despite severe opposition …. and thrive on anti-Hindu appeasement policies.’”

It was averred in the complaint that the above said publication

was provocative, baseless, false and amounted to irresponsible imputations attracting the offences under sections 153-A, 153-B, 295-A and 505(2) of IPC, intended to promote enmity between two religions namely, Hindu and Muslim on the ground of religion and such acts being prejudicial to the maintenance of harmony, the complainant sought to refer the said complaint for investigation by the jurisdictional police under section 156(3) of Cr.P.C.

3. On receiving the complaint, learned X Addl. Chief Metropolitan Magistrate, Bangalore, passed the impugned order rejecting the complaint on the ground that, in view of the provisions under section 196(1) and (1-A) of Cr.P.C., there is a bar for taking cognizance of the offences punishable under sections 153-A, 295-A, 153-B and 505(2) of IPC without previous sanction from the Government.

4. Learned counsel appearing for the petitioner would submit that the bar under section 196(1) of Cr.P.C., would be applicable only at the stage of taking cognizance of the offences by the Court and not at the stage of reference under section 156(3) Cr.P.C. In the instant case, Trial Court has neither taken cognizance of the alleged offences nor did the complainant sought for cognizance of the alleged offences by the Magistrate. The complainant had prayed for reference of the complaint for investigation under section 156(3) of Cr.P.C. and therefore, the bar contained under section 196(1) of Cr.P.C. did not apply to the facts of the case. Further, learned counsel would submit that the Trial Court has dismissed the complaint placing reliance on the decision of the Hon’ble Supreme Court in ANIL KUMAR vs. M.K.AIYAPPA (2013) 10 SCC 705. The ratio of the said decision cannot be made applicable to the prosecution of the accused for the offences under sections 153-A, 153-B, 295-A and 505(2) of IPC, as observed by the Hon’ble Supreme court in RAMDEV FOOD PRODUCTS PVT. LTD., vs. STATE OF GUJARAT (2015) 6 SCC 439, that the observations made in the case of ANIL KUMAR vs. M.K.AIYAP