IMPORTANT POINT
A writ petition to quash an FIR requires proper adjudication and cannot merely grant interim protection without a counter-affidavit.

JUDGMENT :

By the Court.-This writ petition has been filed with the prayer to quash the F.I.R. dated 28.3.2024, registered as Case Crime No. 14 of 2024, under Sections 8/21/29 N.D.P.S. Act, Police Station Hathinala, District Sonbhadra.

2. It is submitted by learned counsel for the petitioner that the petitioner has been falsely implicated in the aforesaid case and that no recovery has been made from him of any contraband. Petitioner is also not arrested at the spot. It is submitted that at the instance of similarly placed co-accused Shailesh Kumar Alias Gopi and another, a previous writ petition filed before this Court being Criminal Misc. Writ Petition No. 7058 of 2024 has been entertained and disposed of by a co-ordinate Bench of this Court vide order dated 3.5.2024, which is reproduced hereinafter :

''1. Heard learned counsel for the petitioners and learned A.G.A. for the State respondents.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 28.3.2024, registered as Case Crime No. 0014 of 2024, under Sections 8, 21 and 29 of NDPS Act, 1985, Police Station-Hathinala, District -Sonbhadra, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. Learned counsel for the petitioners submits that he has been named by co-accused, who were caught with the contraband. No recovery was made from the petitioners nor they were found present on the place of incident. Petitioners have been falsely implicated in this case.

4. Petition is disposed of directing that till cognizance is taken on police report under Section 173(2) Cr.P.C., by the Court the respondents shall not arrest the petitioners pursuant to the First Information Report dated 28.3.2024, subject to cooperation in ongoing investigation.''

3. In the facts of the case, it transpires that 170 grams Heroin has been recovered alongwith certain money and iPhone etc. It is during investigation that role of the petitioner has surfaced. Investigation is going on. It is at this stage that the writ petition has been filed with the prayer to quash the impugned FIR.

4. Learned AGA raises an objection to the prayer made in the writ petition on the ground that the impugned FIR contains prima facie allegation with regard to commissioning of the cognizable offence and the correctness or otherwise of such allegations cannot be examined in writ proceedings, at the outset. Defence of the accused also cannot be looked into at this stage. Submission is that the order of the Division Bench with which parity is sought ought not be passed in view of the law laid down by the Supreme Court in the case of State of Telangana v. Habib Abdullah Jellani, (2017) 2 SCC 779, as also in the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, (2021) SCC Online SC 315. It is also submitted that the writ petition has been disposed of at the stage of fresh petition itself, even without calling for a counter-affidavit, which course is impermissible.

5. Admittedly, Writ Petition No. 7058 of 2024 has been disposed of, finally, without calling for any counter-affidavit in the matter. Only petitioners' contention is noticed. Although the prayer in the writ petition is to quash the FIR but no adjudication is made in respect of the prayer made nor any observations are made in that regard.

6. Even if a writ petition filed with the prayer to quash the FIR is to be entertained on the basis of arguments advanced on behalf of the petitioners, it would be necessary that an opportunity be given to the State to file a counter-affidavit in the matter and the informant be also heard. In Neeharika Infrastructure Pvt. Ltd. (supra) the Supreme Court has examined the issue and after elaborately dealing with the exercise of jurisdiction under Article 226 of the Constitution of India, in a petition filed with the prayer to quash the FIR, has observed as under :

''33.16. The aforesaid paramete