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Filing of FIR after the raid cannot be said to be error in procedure – Karnataka High Court

In the case of Tasleem N.P Vs State of Karnataka [CRL.P. No. 3073/2020] Karnataka High Court held that on receiving a secret information the priority of the police is to arrest the accused and not file FIR.

All the petitioners have been implicated in Cr.No. 110/2020 in relation to offences punishable under sections 8(c), 22(b) and 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985. Police Inspector had received a credible information that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances. Immediately the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.

The petitioners in all the cases have argued that the police did not seize any contraband substance from the conscious possession of the petitioners. The prosecution has not yet obtained the qualitative and quantitative report from the FSL, it is mandatory that according to Standing Instruction 1/1988, the report must be obtained within 15 days from the date of sending the narcotic drug to the FSL. There is no compliance of Standing Instructions. For this reason, section 37 of the NDPS Act cannot be invoked. They also argued that the police officer did not register FIR soon after receiving the credible information. They proceeded to the spot to conduct search without registering FIR. Therefore, the whole seizure is bad in law and for this reason, the seizure panchanama cannot be looked into for any purpose.

The respondent-state argued that there is no infraction of procedure. The respondent submitted that contraband substances were found inside the house and therefore the burden is on the accused to prove that they were not aware of the contents of the bag. It was further submitted that the seized substance was sent to FSL within time and the reason for delay in receiving the report is due to restriction imposed for controlling infectious pandemic Covid-19.

Reference was made to the judgments of Ben Okoro vs State of Karnataka [Crl. P. No. 8644/2017] and Kelsi Katte Mahammed Shakir vs The Superintendent of Customs, Air Intelligence Unit [Criminal Petition No. 5402/2018]. Therefore, court concluded that if the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating existence of prima facie materials about the involvement of the petitioners in commission of offences.

Court observed that, “If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

Court held that, “It is the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action. Sometimes, offences do take place in the presence of the police officer. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR.”

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