1. Quashing of FIR for offence under NDPS Act on grounds of illegal arrest and false implication. (Para 2 , 3 , 4 )
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2026 Supreme(Online)(Bom) 1161
HIGH COURT OF BOMBAY
HON'BLE SMT. JUSTICE URMILA SACHIN JOSHI- PHALKEHON'BLE SHRI JUSTICE NANDESH SHANKARRAO DESHPANDE
MOHIT S/O RAJKUMAR SHAHU – Appellant
Versus
STATE OF MAH THR HOME DEPARTMENT MANTRALAYA MUMBAI – Respondent
WP/397/2019
Advocates:
For the Appellants/Petitioners: R.P. Joshi
For the Respondents: D.V. Chauhan, Swati Kolhe, R.S. Nayak, Sameer Khan
For the Appellants/Petitioners: R.P. Joshi
For the Respondents: D.V. Chauhan, Swati Kolhe, R.S. Nayak, Sameer Khan
Wrongful arrest in violation of Article 21 and mandatory procedural requirements, proven by forensic and CCTV evidence contradicting official records, vitiates subsequent criminal proceedings, justifying the quashing of the FIR and charge-sheet under Section 482 of the CrPC.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21(b) and 29 - Criminal Procedure Code, 1973 - Sections 482, 165, 166 and 2(o) - Constitution of India - Articles 21 and 226 - Wrongful arrest and failure to follow mandatory procedure - When CCTV evidence and forensic reports establish that the arrest occurred on a date prior to the official record and mandatory procedural safeguards were bypassed, such arrest is illegal and violates the fundamental right to life and personal liberty - Resultant First Information Report and subsequent criminal proceedings are vitiated and liable to be quashed. (Paras 18, 19)
(B) Criminal Procedure Code - Section 2(o) - Officer Incharge of Police Station - Personnel below the rank of constable cannot be termed as Officer Incharge for the purpose of exercising powers under Sections 165 and 166 of the Code. (Paras 21, 22)
Facts of the case:
The petitioner challenged an FIR and subsequent charge-sheet filed under the NDPS Act, alleging that he was arrested on a date prior to what was officially recorded by the police. The petitioner claimed the arrest was illegal and based on false pretenses, supported by CCTV footage of the apprehension. The police denied the allegation, stating the arrest occurred on the recorded date and that the person seen in the CCTV footage on the earlier date was another individual. An internal police inquiry was conducted to verify these claims.
Findings of Court:
The court examined the CCTV footage and a forensic report, which concluded that the facial features of the person apprehended on the earlier date matched the petitioner. It was found that the arrest was made in breach of prescribed procedures, as no station diary entries were made on the actual date of arrest and the grounds for arrest were not communicated. The court further noted that the arresting officers were constables, who do not meet the definition of an 'Officer Incharge of Police Station' under Section 2(o) of the CrPC required to exercise certain search and arrest powers. The internal inquiry report was dismissed as an eyewash.
Issues: Whether the arrest of the petitioner was wrongful and in violation of mandatory procedural requirements, and whether such illegal arrest vitiates the subsequent FIR and criminal proceedings.
Ratio Decidendi: An arrest made in breach of mandatory procedural safeguards and in violation of the fundamental rights guaranteed under Article 21 of the Constitution of India, particularly when proven by forensic and video evidence that contradicts official police records, vitiates the foundation of the resulting criminal proceedings. Such proceedings cannot withstand legal scrutiny and justify exercise of jurisdiction under Section 482 of the CrPC for quashing.
Result: The Criminal Writ Petition is partly allowed. The First Information Report and the Charge-sheet filed in the said crime are quashed and set aside.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
- criminal procedure
- constitutional law
- government and administrative law
Table of Contents
2. Petitioner alleged false implication and illegal arrest; respondents claimed procedure followed and disputed facts involved. (Para 12 , 14 , 15 , 16 )
3. CCTV footage and FSL report confirmed petitioner's apprehension on 25.2.2019, not 26.2.2019 as shown, indicating wrongful arrest. (Para 17 , 18 , 19 )
4. Continuation of criminal proceedings based on an illegal arrest vitiated for non-compliance with procedure under Article 21. (Para 18 , 19 )
5. FIR and consequent sessions trial quashed. State directed to consider departmental action. Petitioner may seek compensation if found guilty. (Para 26 )
6. Can criminal proceedings be quashed if based on an illegal arrest contrary to statutory procedure?
Yes, continuation of proceedings founded on an illegal arrest, breaching procedural safeguards under Article 21, cannot withstand legal scrutiny. (Para 18 , 19 )
7. When can a court rely on CCTV footage to determine the validity of an arrest?
A court may watch and rely on CCTV footage, along with expert reports, to ascertain facts such as the date and manner of arrest. (Para 11 , 17 , 18 )
8. Is the failure to make a station diary entry on the date of arrest a procedural violation?
Yes, failure to record a station diary entry on the date of arrest is a serious procedural omission that undermines the legality of the arrest. (Para 18 , 20 , 24 )
9. What is the legal effect of an arrest made by police constables not being officers in charge of a police station?
An arrest by constables, who are not officers in charge, without following the procedure under Sections 165 and 166 CrPC, may be illegal. (Para 21 , 22 )
10. Can a court order departmental inquiry and compensation for illegal police action?
A court can order a departmental inquiry under Article 226, but may leave it to the police department itself, and permit compensation claims if guilt is found. (Para 25 , 26 )
JUDGMENT
(Per : Nandesh S. Deshpande, J.)
1. Heard. Rule. Rule made returnable forthwith.
2. This is a petition under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code praying for quashing the First Information Report in Crime No.159/2019 dated 26.2.2019, registered with Pachpaoli Police Station, Nagpur against the petitioner for the offence punishable under Section 21(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”).
3. Since during the pendency of the present petition, the charge-sheet was filed, the said charge-sheet culminating into Sessions Trial (NDPS) No.27/2019 is also challenged by the petitioner by way of amendment. The petition further prays for directing the respondents to pay compensation to the petitioner for illegal and wrongful arrest and for falsely implicating him in the said case. It further prays for registration of appropriate offences against the respondent Nos.4 to 10 for falsely involving and implicating the petitioner under the said case. It further prays for direction to the respondent Nos.1 and 2 to initiate departmental enquiry against the respondent Nos.4 to 10 for the said act.
4. The factual matrix as can be seen from the petition is as under :-
(i) In the month of December 2018 in Hotel Tuli International, Nagpur there was a programme in which friend of the petitioner, namely, Parul was one of the organizer. At that place the respondent Nos.4,5 and 6 came to the programme and objected to holding of the event. According to the petitioner, the said respondents, who are Police personnel, were demanding money as also free liquor and beer. In the altercation which ensued between the organizer and the respondent Nos.4 to 8 named above, the said respondents threatened the petitioner and were holding grudge against him.
(ii) It is further alleged in the petition that on 25.2.2019, the respondents Nos.4 to 8 caught hold of the petitioner at Kanjihouse Square, Nagpur at which place the petitioner was called at the behest of the Police on some false pretext through his friend Amir Malik. Thereafter, one of the respondents i.e. Sanjay Gite thrusted something on the petitioner. All these acts were captured by the CCTV footage camera installed by the Nagpur Smart and Sustainable Development Corporation. The petition further states that as he was carrying an amount of Rs.2,30,000/- to be paid to one Khan Jewellers, the Policeman also took away an amount of Rs.2,01,000/- from him and showed seizure of only Rs.35,000/-.
(iii) In addition to this, as per the petition the arrest was falsely shown on 26.2.2019 when in fact the petitioner was arrested/detained illegally on 25.2.2019 itself. Thus, after falsely showing that the petitioner was arrested on 26.2.2019, the respondent No.4 to be 10 have shown recovery of a drug namely Mephadron (MD) of total 29 gms. from the petitioner as well as said Amir Malik. In addition to this they have also demanded an amount of Rs.3,00,000/- from the brother and the father of the petitioner.
(iv) A First Information Report bearing Crime No.159/2019 was registered against the petitioner and said another accused, namely, Amir Malik for the offenses punishable under Section 21(b) read with Section 29 of the NDPS Act. They were produced before the Magistrate and were remanded to Police custody and thereafter Magisterial custody.
(v) It is further stated in the petition that on 12.3.2019 the brother of the petitioner, namely Rohit Shahu received CCTV footage of Kanjihouse Square from the Nodal Agency under the Right to Information Act. Thus, it is submitted by the petitioner that the false implication and misuse of power by the Police is clear from the said CCTV footage. In view of these facts, the petition is filed seeking reliefs as stated supra.
5. After issuance of notice, the respondent No.2 i.e. Commissioner of Police has filed its affidavit-in-reply on 21.11.2019. In the said re
