The Orissa High Court has dismissed a petition of a Bengaluru Head Constable seeking quashing of the NDPS proceedings against him after noting that he simply moved contraband across jurisdictions in the company of a suspect without coordinating with local authorities. The High Court also explained that an officer may honestly believe he is acting correctly, yet if he has no jurisdiction to do what he did, the statutory shield under Section 69 of the NDPS Act cannot be mechanically invoked.

The High Court was considering a Criminal Miscellaneous Petition whereby the petitioner, a police officer, sought a direction from the Court to quash the criminal proceedings contending that his acts were in bona fide discharge of official duty under valid inter-state authorization.

The Single Bench of Justice Sanjeeb K Panigrahi held, "Now, Section 69 of the NDPS Act is perused, it grants broad immunity i.e. no prosecution lies against any Government officer or other person “for anything in good faith done or intended to be done under this Act”. This protective clause is intended to encourage officers to act decisively in combating drug crimes. This can be called an amaury Section for officers acting in good faith especially their official duty."

"Good faith under Section 69 is not a talisman. There needs to be certain lawful competence to it. An officer may honestly believe he is acting correctly, yet if he has no jurisdiction to do what he did, the statutory shield cannot be mechanically invoked. The existence of authority, the scope of that authority, and the genuineness of the petitioner’s belief are all matters intertwined with evidence which is quite invisible in the present case", it added.

Advocate Pranab Kumar Ghose represented the Petitioner, while Additional Standing Counsel Tej Kumar represented the Opposite Party.

Factual Background

The case dates back to the year 2023, when four persons carrying bags were found behaving suspiciously by the SI. Upon verification, contraband ganja weighing approximately 17.5 kilograms was detected at the spot. One of the persons was the petitioner, who disclosed his identity as Head Constable of Jigani Police Station, Bengaluru District, Karnataka, claiming that he had come to Odisha in connection with an investigation relating to illegal ganja trafficking. At the time of detection, the petitioner was accompanied by two civilians (one informant and one translator) and one apprehended person, Naresh Pradhan. He was not accompanied by the Investigating Officer of the Karnataka case, nor by local Odisha police personnel.

The petitioner could not produce, at the spot, any seizure list, arrest memo, case diary extract, forwarding report, or written authority permitting custody or transportation of contraband, nor was there any prior intimation shown to have been given to Sarangada Police Station. Consequently, a case was registered under Sections 20(b)(ii)(B) and 27-A of the NDPS Act. The petitioner thus approached the High Court seeking the quashing of the criminal proceedings.

Reasoning

Considering that the petition was filed under section 482 of the CrPC, the Bench reaffirmed that the High Court’s inherent jurisdiction to quash FIR/charge‐sheet is “sparingly” exercised and only to prevent abuse of process.

Coming to the facts of the case, the Bench noted that the FIR and charge‐sheet alleged possession of about 17.5 kg ganja, which, according to the Bench, was a quantity far beyond a “small quantity” under the NDPS Act. “Those allegations on the face of its disclose cognizable offences under NDPS Act (trafficking and related offences) under Sections 20 and 27A. The petitioner has not shown that the ingredients of any charge are wholly absent or that the process has been misused”, it added.

The Bench explained that Section 69 of the NDPS Act grants broad immunity, but there needs to be certain lawful competence to it.

The Bench stated, “On the contrary, the facts suggest that he simply moved contraband across jurisdictions in the company of a suspect, all without coordinating with local authorities. In this situation it cannot be said that the petitioner was engaged in a bona fide “pursuit” under the CrPC provision. The failure to produce any arrest memo, transit remand or coordinating documents further underscores that no lawful arrest procedure took place at the scene. In effect, Section 48 does not afford the petitioner a carte blanche: he was not shown to have legal authority to arrest the person in Odisha, and hence the pursuit power does not validate his actions.”

As per the Bench, the lack of statutory empowerment and procedure by which he detained the accused persons and seized the contraband cast serious doubt on his claim of acting under lawful authority. Considering the disputed circumstances surrounding authorisation and intent, the Bench held that such a determination cannot be made in a petition for quashing. “These are matters which the State is entitled to test in trial”, it held.

Thus, noting that the FIR and charge-sheet disclosed prima facie cognizable offences, and the petitioner’s defences (inter-state cooperation and good faith) raised disputed factual issues inappropriate for pre-trial determination, the Bench dismissed the Petition.

Cause Title: Anand K. v. State of Odisha (Case No.: CRLMC No.160 of 2024)

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Orissa High CourtJustice Sanjeeb K Panigrahi

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.