Sulfikkar v. State of Kerala and S.I. Police NADAKKAVU

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 7TH DAY OF DECEMBER 2012/16TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1165 of 2007 ( ) -------------------------------CC.446/2005 of J.M.F.C.-IV,KOZHIKODE** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SULFIKKAR, S/O USMAN, SULFIKKAR MANZIL, CHELANNUR P.O., PALLIPOYIL KOZHIKODE.** **BY ADV. SRI.T.G.RAJENDRAN** **COMPLAINANT(S)/COMPLAINANT & STATE:** **-----------------------------------** ## **1. S.I. POLICE, NADAKKAVU,** **2. STATE OF KERALA REP.BY** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. LISHA M.G.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 1165 of 2007** ## **========================= Dated this the 7[th] day of December, 2012** ## **ORDER** Petitioner is the accused in C.C. No.446/2005 of J.F.C.M -IV, Kozhikode. The case was originally charged against him under Sec.21 of NDPS Act. 2. The allegation is that he was found in possession of 8 packets of brown sugar having one gram each. The case was detected on 13.11.2003 at about 1.25PM. The case was pending before the Special Court (for NDPS cases). Subsequently, in view of the fact that the quantity involved was under the category of 'small quantity', the case was transferred to the Magistrate's court. The accused had earlier appeared before the Special court. After the case was made over/transferred to J.F.C.M -IV, Kozhikode, the accused did not appear. Non bailable warrant was hence, issued against him. At Crl.R.P.No.1165/2007 : 2 : that time, the learned Assistant Public Prosecutor filed a petition under Sec.321 of Cr.P.C to withdraw the case stating that the Government had intimated their no objection to withdraw the case with the leave of the court. It is stated that the petition was pending for about one year and so the accused had moved this court in M.C.333/2007 and after hearing, this court directed that the said application filed under Sec.321 of Cr.P.C be disposed of within two weeks from the receipt of the copy of the order. The learned Magistrate after going through the petition filed by the learned A.P.P and the case records disallowed the request for withdrawal of the petition under Sec.321 of Cr.P.C. 3. The learned counsel for the petitioner submits that the learned Magistrate should have allowed the petition under Sec.321 of Cr.P.C. The brown sugar seized in this case was of small quantity. The order passed by the learned Magistrate shows that the A.P.P was stated to have stated in the petition that the police did not find the Crl.R.P.No.1165/2007 : 3 : accused selling the brown sugar to anybody and so the case is to be withdrawn. 4. The learned Magistrate has found that the learned A.P.P has not applied her mind at all. It appears, the petition for withdrawal under Sec.321 of Cr.P.C was simply thrust into the court as there was an order of the Government to the effect that the Government have no objection to withdraw the case with the leave of the court. The copy of the Government Order which has been made available to me for perusal does not show what was the offence charged against the accused and what was the reason for passing such an order. Of course, that order may not be justiciable but at the same time, how such an order could persuade the learned A.P.P to file a petition for withdrawal under Sec.321 of Cr.P.C is beyond our comprehension. The only ground that was stated by the A.P.P in the petition for withdrawal is that the police did not seize the brown sugar at the time of selling it to anybody. Mere possession of the brown sugar itself Crl.R.P.No.1165/2007 : 4 : constitutes an offence. Sec.35 of the NDPS Act also may help the prosecution to draw the presumption so as to sustain the charge. What ever that be, the fact that the learned A.P.P has sought withdrawal of the petition simply for the reason that the police did not find the accused selling the brown sugar would make it abundantly clear that the learned A.P.P has not applied her mind at all. It appears to be a strange reasoning indeed for the A.P.P to withdraw a case registered under the NDPS Act was not in the interest of the administration of justice or to promote peace or harmony in the society, political or otherwise, the case was sought to be withdrawn. The total lack of application of mind by the learned A.P.P is loudly obtrusive in the petition filed by him that the learned Magistrate was rightly persuaded not to act upon that petition for withdrawal of the case. It is inconceivable how the learned A.P.P could file a petition for withdrawal of a case registered under the NDPS Act simply for the reason that it was not stated that Crl.R.P.No.1165/2007 : 5 : the accused was found selling the brown sugar. The learned Magistrate has stated that a perusal of the application filed by the learned A.P.P will show that the learned A.P.P has not applied her mind and that some extraneous reasons were found out to withdraw the case. The non application of mind by the learned A.P.P is so writ large and hence, the rejection of the application by the learned Magistrate is well justified. 5. It was held by the apex court in **Abdul Karim and Others v. State of Karnataka and Others** (2000) 8 SCC 710: **“** It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that Crl.R.P.No.1165/2007 : 6 : the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent”. ## It was also held in Paragraph 42 of the said decision: “The satisfaction for moving an application under Section 321 CrPC has to be of the Public Prosecutor which in the nature of the case in had has to be based on the material provided by the State. The nature of the power to be exercised by the Court while deciding application under Section 321 is delineated by the decision of this Court in _Sheonandan Paswan_ v. _State of Bihar._ This decision holds that grant of consent by the court is not a matter of course and when such an application is filed by the Public Prosecutor after taking into consideration the material before him, the court exercises its judicial discretion by considering such material and on such consideration either gives consent or declines consent. It also lays down that the court has to see that the application is made in good faith, in the interest of public policy and justice Crl.R.P.No.1165/2007 : 7 : and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.” In the light of the principle enunciated by apex court in the decision cited supra it is quite clear in my mind that the learned A. P.P did not apply her mind while filing a petition under Sec.321 Cr.P.C. The learned Magistrate has rightly rejected that petition. Hence, I find no reason to interfere with the order passed by the learned Magistrate. This criminal revision petition is, hence, dismissed. ## Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge