Avdesh Mukutbihari Sharma v. The State of Maharashtra and Another

O R D E R

(i) The Criminal Writ Petition is partly allowed.

(ii) F.I.R., being Crime No.334/2016, registered with CIDCO, Aurangabad Police Station is quashed so far as regards the present petitioner is concerned.

(iii) Charge Sheet No.301/2017 is treated as supplementary charge sheet, lodged pursuant to the further investigation and the same, therefore, be sent to Shipra Path Police Station, for further course of action regarding prosecution of the petitioner for offence punishable under Section 420 read with Section 120-B of the Indian Penal Code and any other offence, but not any offence under the Drugs and Cosmetics Act, 1940, since the prosecution has been launched by filing a complaint.

(iv) We hope that the Police Station Incharge of Shipra Path Police Station, Jaipur would do the needful to ensure that the petitioner is tried for the offence/s disclosed to have been committed by him during the further investigation."

¶14Ultimately, the charge sheet bearing No. 301/2017 filed in that offence was directed to be treated as supplementary charge sheet and directed to be transmitted to the Police Station 16 cri appln 170.25 Incharge Kshiprapat Police Station, Jaipur (Rajasthan) and obviously criminal case was quashed. I propose to adopt the same course and reasons.

¶15Another reason to accept the submissions of the learned senior counsel is that the Additional Chief Metropolitan Magistrate No. 4, Jaipur in collateral proceedings bearing R.C.C. No. 367 of 2018 dropped the proceedings on almost identical line vide order dated 24.03.2022. Thus not only the Division Bench of our High Court held that it was double jeopardy, but competent Court at Jaipur (Rajasthan) also concluded in the same manner.

¶16I find that the drugs seized from the applicant at Aurangabad might not be the same, from those seized in the first offence. However, fact remains that in the first offence there was allegation of illegal manufacturing and distribution/sell of spurious drugs to various dealers and distributors in India. The Division Bench also concluded that these are the sequence of same offences or rather it is chain of events and the independent instances cannot be treated as separate offences giving separate cause of action.

¶17Learned A. P. P. has vehemently pointed out that the samples, panchanama, place of offence and hence there are separate offences. It is not the case of the prosecution that before registering offences at Aurangabad the applicant was found to have illegally manufacturing and distributing the spurious 17 cri appln 170.25 drugs. The overt act alleged against the applicant in the impugned proceedings have a nexus to his earlier overt act, which was part of the prosecution conducted against him in Rajasthan. The applicant was in jail from 03.11.2015 till

02.02.2019. It was not possible for him in normal course of circumstances to indulge in the illegal activity. It is also not case of the prosecution that after releasing on bail, he indulged in the activities of illegal manufacturing and distribution of spurious drugs. I am unable to concur with the submissions of the learned A. P. P.

¶18It would be useful to refer to judgment cited by the learned senior counsel of the Supreme Court in the matter of T. P. Gopalkrishan Vs. State of Kerala (supra). Relevant extracts in para Nos. 24, 25, 27, 31 and 32 of the judgment are given hereinbelow. "24. Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section.

¶25Section 300 of the CrPC is based on the maxim nemo 18 cri appln 170.25 deber bis vexari, si costest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged. As per the decision of this Court in Vijayalakshmi vs. Vasudevan (1994) 4 SCC 656 in order to bar the trial of any person already tried, it must be shown that :

(i) he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts,

(ii) he has been convicted or acquitted at the trial, and

(iii) such conviction or acquittal is in force.

¶27Section 300 of the CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts, vide Thakur Ram vs. State of Bihar AIR 1966 SC 911.

¶31Before dealing with the issue at hand, it is necessary to understand what the term 'same offence' means and includes. The term 'same offence' in simple language means, where the offences are not distinct and the ingredients of the offences are identical. Where there are two distinct offences made up of different ingredients, the embargo under Article 20 of the Constitution of India, has no application, though the offences may have some overlapping features. The crucial requirement of Article 20 is that the offences are the same and identical in all respects, vide State (N.C.T. of Delhi) vs. Navjot Sandhu

(2005) 11 SCC 600. 19 cri appln 170.25

¶32The concept of double jeopardy can also be understood in terms of Article 21 of the Constitution of India which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. 'Life' under Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider connotation; it includes the right to live with human dignity. In the celebrated judgment in the case of Maneka Gandhi vs. Union of India 1978 AIR 597, this Court gave a new dimension to Article 21, wherein it stated that the right to live includes within its ambit the right to live with dignity. Under the umbrella of Article 21, various rights like right to free legal aid, right to speedy trial, right to fair trial, etc. have been included. Similarly, protection against double jeopardy is also included under the scope of Article 21 of the Constitution of India. Prosecuting a person for the same offence in same series of facts, for which he has previously either been acquitted or has been convicted and undergone the punishment, affects the person's right to live with dignity.

¶19I find that it is an abuse of process of law to ask the applicant to face the impugned proceedings for the alleged overt act, which is part and parcel of the first offence or emanating from the first offence. In the peculiar facts and circumstances of the case, I am of the considered view that case is made out to cause interference in the impugned proceedings. I, therefore, pass following order : 20 cri appln 170.25 O R D E R A. The criminal applications are allowed. B. R.C.C. No. 01 of 2018 and R.C.C. No. 40 of 2018 pending before the learned Judicial Magistrate First Class (Corporation Court) Aurangabad are quashed and set aside to the extent of the applicant. C. This will not preclude the respondents or its counter part from State of Rajasthan to utilize the material collected against the applicant in the proceedings which are pending before the High Court of Rajasthan. [SHAILESH P. BRAHME J.] bsb/March 25

1 cri appln 170.25 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 170 OF 2025 Avdesh Mukutbihari Sharma .. Applicant Versus The State of Maharashtra and another .. Respondents WITH CRIMINAL APPLICATION NO. 172 OF 2025 Avdesh Mukutbihari Sharma .. Applicant Versus The State of Maharashtra and another .. Respondents Shri V. D. Sapkal, Senior Advocate i/by Shri Sandip R. Sapkal, Advocate for the Applicant in both matters. Mrs. Chaitali Choudhari-Kutti, A.P.P. for the Respondent Nos. 1 and 2 in both matters. CORAM : SHAILESH P. BRAHME, J. DATE : 11TH MARCH, 2025. FINAL ORDER : . Learned Assistant Public Prosecutor tenders on record copy of reply in both matters. 2. Heard both sides finally at the admission stage. There are common questions of facts and law involved in both the criminal applications and, therefore, I propose to decide them by this common order. 2025:BHC-AUG:7709 2 cri appln 170.25 3. The applicant is original accused in R.C.C. No. 01/2018 as well as R.C.C. No. 40 of 2018 pending before the Judicial Magistrate First Class (Corporation Court) Aurangabad and facing trial for offence punishable U/Sec. 18(a)(i) r/w Sec. 16 and Sec. 17(b) p/u Sec. 27(d) of the Drugs and Cosmetics Act. He is seeking quashment of both the proceedings under shield of doctrine of double jeopardy as per Article 20 of the Constitution of India and Sec. 300 of the Code of Criminal Procedure (for short 'Cr. P. C.') 4. Few relevant facts necessary for adjudication of these applications are that the applicant is facing criminal action for following offences : (i) Cr. No. 718/2015 registered with Shipra Path Police Station, Jaipur for the offences punishable U/Sec. 27(b)(ii), 27(c) of the Drugs and Cosmetics Act r/w Sec. 420 and 487 of the Indian Penal Code which culminated into Sessions Case No. 45 of 2016 and lateron ended in conviction. (ii) Cr. No. 334/2016 registered on 14.05.2016 with Police Station CIDCO, Aurangabad for the offences punishable U/Sec. 27(c) of the Drugs and Cosmetics Act, 1940 r/w Sec. 420 and 487 of the Indian Penal Code, which is lateron quashed by the Division Bench of this Court by judgment and order dated 02.05.2019 in Criminal Writ Petition No. 1355 of 2017. 3 cri appln 170.25 (iii) R.C.C. No. 367 of 2018, which culminated into order dated 24.03.2022 passed by the learned Additional Chief Metropolitan Magistrate No. 4, Jaipur, State of Rajasthan, dropping the proceedings. (iv) Impugned R.C.C. No. 01 of 2018 pending before the Judicial Magistrate First Class (Corporation Court) Aurangabad for the offence punishable U/Sec. 18(a)(i) r/w Sec. 16 and Sec. 17(b) p/u Sec. 27(d) of the Drugs and Cosmetics Act, 1940. (v) Impugned R.C.C. No. 40 of 2018 for the offences punishable U/Sec. 18(a)(i) r/w Sec. 16 and Sec. 17(b) p/u Sec. 27(d) of the Drugs and Cosmetics Act, 1940 pending before the Judicial Magistrate First Class (Corporation Court) Aurangabad. 5. Undisputedly, the offence registered against the applicant in the State of Rajasthan bearing Cr. No. 718/2015 was ended in conviction by judgment and order dated 18.07.2018. Being aggrieved, applicant preferred appeal before the High Court of Rajasthan, which is pending. Cr. No. 334/2016 was quashed by the Division Bench of this Court vide judgment and order dated 02.05.2019 in Criminal Writ Petition No. 1355 of 2017. Third offence referred above i. e. R.C.C. No. 367 of 2018 was concluded by order dated 24.03.2022 by the Additional Chief Metropolitan Magistrate No. 4, Jaipur (Rajasthan) dropping the proceedings on the principles of double jeopardy as contemplated by Sec. 300 4 cri appln 170.25 of the Cr. P. C. read with Article 20 of the Constitution of India. Last two proceedings are under challenge in the present matters. Those are sought to be quashed by invoking powers U/Sec. 300 of the Cr. P. C. read with Article 20 of the Constitution of India. 6. It is relevant to notice that first offence was registered against the applicant bear