Rajasthan High Court - Jodhpur
Gopal & Ors vs State on 1 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3073 / 2014
1. Gopal S/o Shri Bhanwar Lal, by caste Gadari, R/o Aakya,
District Mandsaur (M.P.)
2. Satyanarayan @ Bablu S/o Shri Ramchandra, by caste Balai,
R/o Malyakhedi, Mandsaur (M.P.).
3. Pankaj S/o Shri Devi Lal, by caste Jat, R/o Pipalkhunt,
Mandsaur (M.P.)
4. Shiv Lal S/o Shri Bheru Lal, by caste Jat, R/o Pipalkhunt,
Mandsaur (M.P.)
----Petitioners
Versus
State of Rajasthan.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. S.D. Purohit with Mr. Ravi Purohit
For Respondent(s) : Mr. V.S. Rajpurohit, PP for the State
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 01/09/2017
1. The petitioners have preferred this criminal misc.
petition under Section 482 Cr.P.C. for quashing the criminal proceedings against the petitioners pursuant to the charge sheet No.75/2012 dated 05.03.2012 arising out of FIR No.552/2011 registered at Police Station Nimbahera, for the offence under Section 8/18, 25 & 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'the NDPS Act').
2. The criminal proceedings were initiated against the petitioners pursuant to the charge sheet No.75/2012 dated 03.03.2012 arising out of FIR No.552/2011 at Police Station (2 of 25) [CRLMP-3073/2014] Nimbaheda for the offences under Sections 8/18, 25 & 29 of the NDPS Act. The criminal proceedings are going on against the present petitioners before learned Special Judge (NDPS Act Cases), Chittorgarh.
3. The brief facts of the case as noticed by this Court are that on 10.09.2011, a police team headed by Sub-Inspector Kamal Chand of Police Station Nimbaheda alongwith other Head Constables and Constables conducted a Nakabandi in which a Maruti Zen Car bearing registration No.MP09 HB 3330 coming from Neemuch was stopped by Kamal Chand, Sub-Inspector.
When the said car did not stop, it was forced to stop and on search in front of independent Motbir, it was revealed that there was a plastic bag containing three polythene bags having contraband weighing 14 kilograms along with two samples of 30 grams each separately. And the remaining articles and samples were sealed. All the four petitioners were arrested and given a notice under Section 52 of the NDPS Act. Six persons were taken to the police station where a case No.552/2011 for the offence under Section 8/18 of the NDPS Act was registered and the seized articles were deposited in the Malkhana. The petitioners have been charge-sheeted for the offences under Sections 8/18 & 8/25 of the NDPS Act. The criminal trial is going on after registration of criminal case No.22/2012.
4. At the outset, learned counsel for the petitioner has confined his arguments that the proceedings were initiated by (3 of 25) [CRLMP-3073/2014] Kamal Chand, Sub-Inspector who was not posted as Station House Officer but was holding the post of Station House Officer in the absence of Station House Officer and thus, was not empowered to make search and seizure under the NDPS Act. The bail applications moved by the petitioners were allowed by a coordinate Bench of this Court vide order dated 30.07.2017. The bail order is a speaking order and the sole reason for granting the bail was the proceedings being conducted by Kamal Chand, Sub-
Inspector who was not empowered and ought to have brought the petitioner before the competent officers. The order dated 30.07.2012 passed by a coordinate Bench of this Court reads as follows:
"Heard learned counsel for the petitioners and the learned Public Prosecutor and perused the material available on record.
The contention of the present petitioner is that they have been implicated falsely and the proceedings have been conducted in violation of the mandatory provisions of Section 42 of the NDPS Act. The search was made by the Sub Inspector of Police, who was not posted as Station House Officer at the relevant time and hence the search and seizure are in contravention of the provisions. Hence, they should be released on bail. Reliance has been placed on the judgments reported in Raju Munim Vs. State of Rajasthan [2006 (3) WLC (Raj.) 392] and Roy V.D. Vs. State of Kerala [2000 AIR SCW 4005].
Per contra, the contention of the learned Public Prosecutor is that the Station House Officer, at the relevant time, was not at the police station and Sub Inspector Kamal Chand was holding the charge of the Police Station. Hence, he was empowered under the provisions of the NDPS Act for search and seizure.
It is not in dispute that Kamal Chand was Sub Inspector at the relevant time and rojnamcha of the Police Station also suggests that at the relevant time, the SHO was not at the police station and Kamal Chand was having (4 of 25) [CRLMP-3073/2014] the charge of the police station. Thus, on the strength of these facts, the contention of the learned Public Prosecutor is that he was the Station House Officer at the relevant time and seizure was within his competence.
Per contra, the contention of the present petitioners is that only Sub Inspectors, posted as Station House Officers, are empowered under Section 42 of the NDPS Act for search and seizure and admittedly, Kamal Chand was not posted as Station House Officer. Hence, he was not empowered for search and seizure. In Raju Munim (supra), on same facts, it has been held that the Sub Inspector is not authorized for search and seizure. In Roy V.D. (supra), it has been held that when search and seizure are per se illegal in view of the fact that the Seizure Officer is not empowered to make search and seizure, the proceedings have to be quashed.
The learned Public Prosecutor relied upon the judgment delivered in the case of Pappu Vs. State of Rajasthan [2009 (2) Cr.L.R. (Raj.) 1491]. But it goes against the prosecution as it has been concluded that the officer conducting seizure was not authorized and hence the search and seizure are held to be incompetent. Hence, the prosecution seeks no strength from the above cited law.
Further, the learned Prosecutor has placed reliance on the judgment delivered in the case of Pattric Thomas Malluzo Vs. State of Rajasthan [2010 (1) R.Cr.D. 295 (Raj.)] but it relates to three different contentions. No laws has been propounded on the authorization and competence of the seizure officer.
Further, reliance has been placed on the judgment delivered in the case of Duraisingan and Senthil Vs. State, Inspector of Police, Madras 1994(1) LW (Crl) 287, Dilip & Anr. Vs. State of M.P. [2007(1) RLW 630] and Dehal Singh Vs. State of Himachal Pradesh [2010 (Suppl.) Cr.L.R. (SC) 280], which relate to the provisions of Section 50 of the NDPS Act, which is not the controversy in the present case.
Reliance has also been placed on the judgment delivered in the case of Bharta Ram Vs. State of Rajasthan & Ors. [2007(5) WLC (Raj.) 425], wherein it has been held that in the cases of chance recovery, authorization is not necessary. On the strength of the above cited law, the contention of the learned Public Prosecutor is that it is also a case of chance recovery and hence search by Sub Inspector is competent.
(5 of 25) [CRLMP-3073/2014] The learned Public Prosecutor has also relied on the judgments delivered in Sushil Kumar Vs. State of M.P. [1999 Cr.L.J. 4516] and State of Punjab Vs. Balbeer Singh [AIR 1994 SC 1872]. In State of Punjab Vs. Balbeer Singh (supra), it has been held as under:
"If during search or arrest there is a chance of recovery of any narcotic drug or psycotrophic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act."
A perusal of the above goes to show that if during search or arrest, there is a chance of any recovery of any narcotics or psychotropic substance, then the police officer, here in the present case Kamal Chand Sub Inspector, who is not empowered, should inform the empowered officer and thereafter the empowered officer would proceed with the provisions of the NDPS Act.
Further, in Sushil Kumar's case (supra), it has been specifically held as under:
"If he suspected that accused/appellant Sushil Kumar was in possession of 'Ghanja', he should have brought him along with the scooter to the Police Station, instead of taking search of the accused/appellant, as is discussed from his own statement. Needless to say, Police Constable Shyamlal Rathore (P.W.8) did not have the authority to make any search or to apprehend the accused/appellant."
It also clearly suggests that if Kamal Chand was not competent to search, he should have brought the accused persons before the competent officer and thereafter the competent officer should have made search according to the provisions of the NDPS Act.
Thus, having gone through the facts and circumstances of the case and without expressing anything on the merits of the case, I am inclined to grant bail under Section 439 Cr.P.C.
Accordingly, the same is allowed and it is directed that petitioners (2) Pankaj S/o Shri Devi Lal and (2) Gopal S/o Shri Bhanwar Lal shall be released on bail in FIR No.552/2011 P.S. Nimbahera, District Chittorgarh, provided each of them executes a personal bond for a sum (6 of 25) [CRLMP-3073/2014] of Rs.1,00,000/- along with two sound and solvent sureties in the sum of Rs.50,000/- each to the satisfaction of learned trial court for his appearance before the court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
Needless to state that observations made above will not affect, in any way, the proceedings before the trial court."
5. The bail order was challenged by the State of Rajasthan and while upholding the bail order on the ground of non-
empowered officer conducting the proceedings, the order of bail was upheld. The order of the Hon'ble Apex Court dated 13.05.2016 reads as follows:
"The Presiding Officer namely, Special Judge, NDPS Cases, No.11, Chittorgarh, Rajasthan has reported that he was not able to conclude the proceedings as directed in the order of this Court dated 22 nd September, 2014 since S.B. Crl. Misc. Petn. No.3073 of 2014 has been entertained by the High Court and order of stay was granted by the High Court on 8th January, 2015. We only request the High Court to dispose of the said S.B. Crl. Misc. Petn. No.3073 of 2014 entitled as Gopal Vs. State of Rajasthan expeditiously preferably within one month to enable the Special Judge, NDPS Case, Chittorgarh, Rajasthan to dispose of the case pending before him. For that purpose, we grant three months' time from June, 2016 for the learned Special Judge to comply with the order dated 22 nd September, 2014."
6. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court rendered in Gurjant Singh @ Janta Vs. State of Punjab in Criminal Appeal No.1868 of (7 of 25) [CRLMP-3073/2014] 2013 [SLP (Crl) No.3407 of 2012) decided on 28.10.2013. The relevant portion of judgment reads as under:
"25. One of the grounds raised on behalf of the appellant was that P.W.3 was not holding the post of D.S.P. in a substantive manner in order to hold that he was a Gazetted officer on the date of search. According to the appellant, P.W.3. was not a regularly promoted D.S.P. but was only an Inspector functioning as a D.S.P. in a category called 'own Rank Pay' D.S.P. According to the appellant, P.W.3. was not drawing the pay of an Inspector from I.R.D. and was not holding the post of D.S.P. on a regular basis. It was, therefore, contended that such a person who was not duly promoted as D.S.P., cannot be equated to the status of a Gzetted officer in order to hold that a search conducted in his presence was a valid search as contemplated under Section 50 of the NDPS Act. As far as the said pointed raised on behalf of the appellant, we do not find any material or a counter-stand taken to the effect that P.W.3 was a regularly promoted D.S.P. or that as per the rules even as an 'Own Rank Pay' D.S.P. he could be equated to any other D.S.. holding a substantive post. Unfortunately, as stated by us earlier, the trial court having taken a view that Section 42 and 50 were not applicable, completely omitted to examine the said defence raised on behalf of the appellant. We also do not find any contra evidence laid on behalf of the prosecution to counter the said ground raised on behalf of the appellant.
26. In such circumstances, it will be highly dangerous to simply affirm the ultimate conclusion of the trial court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial court by simply extracting a portion of the judgment of the trial court, while affirming the conviction."
7. Learned counsel for the petitioner Shri S.D. Purohit assisted by Mr. Ravi Purohit has also relied upon the judgment of Roy. V.D. Vs. State of Kerala reported in (2000) 8 SCC 590.
The relevant portion of the judgment reads as under:
(8 of 25) [CRLMP-3073/2014] "7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.
16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. If follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the Narcotic Drugs & Psychotropic Substances Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the Narcotic Drugs & Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial.
18. It is well settled that the power under Section 482 of the Cr. P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence bases on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr. P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.
20. It may be noticed that that conclusion was reached by the Constitution Bench in the context of non-compliance of Section 50 of the Narcotic Drugs & Psychotropic Substances Act. While emphasising that it is imperative on the officer who is making search of a person to inform him of his right under Sub-section (1) of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, it was held (9 of 25) [CRLMP-3073/2014] that the recovery of the illicit article in violation of Section 50 of the Narcotic Drugs & Psychotropic Substances Act would render the recovery of illicit article suspect and use of such material would vitiate the conviction and sentence of an accused. It is manifest that the recovery of illicit article in that case was by a competent officer but was in violation of Section 50 of the Narcotic Drugs & Psychotropic Substances Act. In the instant case, however, the search and recovery were by an officer who was not empowered so to do. Further in Balbir Singh's case (supra) this Court took the view that arrest and search in violation of Section 41 and 42 of the Narcotic Drugs & Psychotropic Substances Act being per se illegal would vitiate the trial.
Therefore, the said conclusion cannot be called in aid to support the order under challenge. If the proceedings in the instant case are not quashed, the illegality will be perpetuated resulting in grave hardship to the appellant by making him to undergo the ordeal of trial which is vitiated by the illegality and which cannot result in conviction and sentence. It is, in our view, a fit case to exercise power under Section 482 of Cr. P.C. to quash the impugned proceedings."
8. Learned counsel for the petitioner further relied upon the judgment of Raju Munim Vs. State of Rajasthan reported in WLC (Raj.) 2006(3) 392. The relevant portion of judgment reads as follows:
"20. After considering the provisions of law in the context of submissions of the learned Counsel for the appellant I consider the facts and evidence of the present case. There is no doubt that PW-7 Yashwant Singh was holding the post of Sub Inspector at Police Station Bhawanimandi whereas S.H.O. at Police Station Bhawanimandi was Pradeep Kumar PW-8. However it was explained that at the time when he received an information from the informer then the S.H.O. had gone in connection with investigation of case No. 366/99 under Section 395 1PC and Case No. 161/99 under Section 307 IPC. The learned Trial Court did not agree with the submissions of the learned Counsel for the accused and agreed with the submissions of the learned Public Prosecutor that PW-7 Yashwant Singh was the In-charge of the Police Station at that particular time in absence of S.H.O. Pradeep Kumar, (10 of 25) [CRLMP-3073/2014] in view of Section 36 of the Cr.P.C. and it was merely an irregularity. I find that Section 36 Cr.P.C. is not applicable in the present case because Section 36 Cr.P.C. prescribes that police officers, superior in rank to an officer in charge of Police Station, may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. As per Section 36 Cr.P.C. the police officers, who are superior in rank, may exercise the same powers of the in charge of the police station but in the present case PW- 7 Yashwant Singh was not a superior officer than the S.H.O. Pradeep Kumar. Section 42 of the Act lays down that any such officer, who is empowered in this behalf by general or special order of the Central Government or a State Government, may enter into such search and seizure. The State Government has issued the Notification dated 16.10.1986 under Section 42 of the Act. The Public Prosecutor, appearing on behalf of the State of Rajasthan, has not shown any other Notification superseding to above referred Notification dated 16.10.1986, therefore search and seizure of contraband in the present case by unauthorised officer vitiates the trial of the case."
9. Learned counsel for the petitioner has also placed reliance on the judgment delivered in the case of State of Rajasthan Vs. Mohanlal reported in 1997 CriLJ 1091. The relevant portion of the judgment reads as follows:
"8. In the present case, it is admitted fact that notification was published in Rajasthan Gazette on 16-10-86 which is reproduced as under :
(III) Published in the Rajasthan Gazette, Extra, Part IV-C(II) dated Oct. 16th, 1986 at p.269.
No. F.I(3) FD/Ex/85-1, dated 16-10-86.
S.O.I 15.- In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorise all inspectors of police, and sub- inspectors of police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect:
(11 of 25) [CRLMP-3073/2014] Provided that when power is exercised by police officer other than police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned police Inspector or S.H.O. of the Police Station concerned.
9. Under the above said notification, the only officers who were empowered to take action under the NDPS Act, were specified as Inspector of Police and Sub-Inspector of Police posted as S.H.O's and none else. The above view has been fully approved by the Apex Court in the case of State of Punjab v. Balbir Singh MANU/SC/0436/1994 : AIR 1994 SC 1872 : 1994 Cri LJ 3702. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out a rest or search as provided under the provisions to Section 42(1). To that extent they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.
10. Chapter V specifically provides only the officers mentioned and empowered therein can give an authorisation to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. Under Section 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions. there are two important requirements. One is that the Magistrate or the Officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain Officers of higher rank and empowered can act to effect the arrest or search.
(12 of 25) [CRLMP-3073/2014] This is safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore, if an arrest or search contemplated under these provisions of NDPS 'Act has to be carried out, the same can be done only by competent and empowered Magistrates of Officers mentioned thereunder."
10. Learned counsel for the petitioner has also placed reliance on the judgment delivered in the case of Chhunna Alias Mehtab Vs. State of M.P. reported in (2002) 9 Supreme Court Cases 363. The relevant portion of the judgment reads as follows:
"2. It is not disputed that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drug and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorization was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorization is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated."
11. Learned Public Prosecutor vehemently opposed the submissions made on behalf of the petitioners and states that Kamal Chand, Sub-Inspector was holding charge as Station House Officer in place of Station House Officer Veera Ram Choudhary and, therefore, once he was holding the charge, the same would be in conformity with the mandatory provisions of Section 42 of the NDPS Act.
(13 of 25) [CRLMP-3073/2014]
12. Learned Public Prosecutor has relied upon the judgment delivered in the case of Union of India vs. T. Nathamuni decided by Hon'ble Apex Court in Special Leave Petition (Crl.) No.2521-2522 of 2014 on 01.12.2014. The relevant portion of the judgment reads as follows:
"6. The High Court vide its impugned order dated 05.07.2013 set aside aforesaid order of the trial court on the ground that Section 17 of the Act provides that if the officer not below the rank of Inspector of Police is authorized by the Government, such officer can investigate the case without permission of the Court. There is no specific provision in Section 17 of the Act that the Sub- Inspector of Police is also empowered to investigate the case with the permission of the Court. The High Court further observed that the Special Court without assigning any reason in the order permitted the Sub-Inspector of Police to investigate the matter and the same is not in accordance with law.
11. In the instant case, the only question that needs to be considered is as to whether the order passed by the Magistrate permitting the Sub-Inspector, CBI, Chennai to investigate the matter can be sustained in law. The only ground taken by the Respondent in the quashing petition before High Court is that as per the provisions of Section 17 of Prevention of Corruption Act, 1988, no officer below the rank of Inspector of Police is authorized by the Government to investigate the case without permission of the Court. Further, Section 17 does not confer any power to the Court to grant permission to Sub-Inspector of Police to investigate the case. Hence, order passed by the Magistrate permitting the Sub-Inspector of Police to investigate the case is without jurisdiction and against the mandatory provisions of Section 17 of the Act as well as Article 21 of the Constitution of India. Before answering the question we would like to refer to Section 17 of the Prevention of Corruption Act, 1988 which reads as under:
17. Persons authorised to investigate.-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(14 of 25) [CRLMP-3073/2014]
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under Sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
12. It is clear that in the case of investigation under the Delhi Special Police Establishment Act, an officer below the rank of Inspector cannot investigate without the order of a competent Magistrate. In the present case, order of the Special Judge was obtained by filing an application. That order dated 24.9.2009 shows that it was passed on request and in the interest of justice, investigation pursuant to such order did not suffer from want of jurisdiction and hence, in the facts of the case, the High Court erred in law in interfering with such investigation more so when it was already completed.
13. The question raised by the Respondent is well answered by this Court in a number of decisions rendered in a different perspective. The matter of investigation by an officer not authorized by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by Sub-Inspector, CBI who, after completion of investigation, submitted charge-sheet.
It was only during the trial, objection was raised by the Respondent that the order passed by the Magistrate permitting Sub-Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by (15 of 25) [CRLMP-3073/2014] the officer is vitiated in law. Curiously enough the Respondent has not made out a case that by reason of investigation conducted by the Sub-Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that invalidity of investigation does not vitiate the result unless a miscarriage of justice has been caused thereby.
14. In the case of Dr. M.C. Sulkunte v. The State of Mysore AIR 1971 SC 508, the main question raised by the Appellant in an appeal against the order of conviction was that the sanction to investigate the offence given by the Magistrate was not proper in as much as he had not recorded any reason as to why he had given permission to the Inspector of Police to investigate the offence of criminal misconduct of obtaining illegal gratification. Considering Section 5(A) of the Act Their Lordships observed:
"15. Although laying the trap was part of the investigation and it had been done by a Police Officer below the rank of a Deputy Superintendent of Police, cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It has been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation. The observations in State of M.P. v. Mubarak Ali 1959 Supp 2 SCR 201 at pp 210 and 211, to the effect that when the Magistrate without applying his mind only mechanically issues the order giving permission the investigation is tainted cannot help the Appellant before us."
15. In the case of Muni Lal v. Delhi Administration AIR 1971 SC 1525, this Court was considering the question with regard to the irregularity in investigation for the offence under the Prevention of Corruption Act. Following earlier decisions, this Court held:
"4. From the above proposition it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced.
(16 of 25) [CRLMP-3073/2014] Assuming in favour of the Appellant, that there was an irregularity in the investigation and that Section 5-A of the Act, was not complied with in substance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. The learned Counsel for the Appellant has been unable to show us how there has been any miscarriage of justice in this case and how the accused has been prejudiced by any irregular investigation."
16. In the case of State of Haryana v. Bhajan Lal AIR 1992 SC 604, this Court while considering Section 5A of the Act, held as under:
"125. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v. State of Delhi AIR 1955 SC 196); (2) Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195; (3) Munna Lal v. State of Uttar Pradesh (1964) 3 SCR 88; (4) S.N. Bose v. State of Bihar (1968) 3 SCR 563; (5) Muni Lal v. Delhi Administration 1971 (2) SCC 48, 6) Khandu Sonu Dhobi v. State of Maharashtra 1972 (3) SCR 510. However, in Rishbud case and Muni Lal case, it has been ruled that if any breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation."
(17 of 25) [CRLMP-3073/2014]
17. In the case of A.C. Sharma v. Delhi Admn. (1973) 1 SCC 726, provisions of Section 5A were again considered by this Court and held as under:
"15. As the foregoing discussion shows the any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H.N. Rishabud and Inder Singh v. State of Delhi (supra) it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1952. This decision was followed in Munna Lal v. State of U.P where the decision in State of Madhya Pradesh v. Mubarak Ali AIR 1959 SC 707 was distinguished. The same view was taken in the State of Andhra Pradesh v. M. Venugopal 1964 (3) SCR 742 and more recently in Khandu Sonu Dhobi v. State of Maharashtra (supra).
The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr. Anthony deal with different points: in any event to the extent they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law."
18. As noticed, on the basis of the permission accorded by the Magistrate, the Sub-Inspector, CBI proceeded with the (18 of 25) [CRLMP-3073/2014] investigation and finally submitted charge-sheet. It was only after that, said order of Magistrate was questioned by the Respondent by filing a criminal petition in the High Court. The learned Single Judge, appreciating the submission made by the learned Counsel, held that since the special court without assigning any reason permitted Sub-Inspector of Police to investigate the matter, the order is not in accordance with law and disposed of the petition giving liberty to the prosecution to file a fresh petition before the court seeking permission to get the matter investigated by a competent officer.
19. As discussed earlier, the High Court erred in overlooking the gist of order of Special Judge permitting the Sub-Inspector to investigate. Further, having regard to the fact that no case of prejudice or miscarriage of justice by reason of investigation by the Sub-Inspector of Police is made out, the order of the High Court cannot be sustained in law. For the reasons stated above, these appeals are allowed and the order passed by the High Court is set aside. The concerned Court shall now act with utmost expedition."
13. Learned Public Prosecutor has also relied upon the judgment delivered in the case of State of Rajasthan Vs. Amar Chand & Anr. reported in RLW 2007 (1) Raj. 181. The relevant portion of the judgment reads as follows:
"4. The trial Court at the stage of framing of charge discharged the accused non-petitioners for the offences solely on the ground that search and seizure made by Harendra Singh, Sub inspector was not an authorized officer as envisaged under Section 42 of the NDPS Act and notification of the State of Rajasthan S.O. 115 dated 16.10.1986.
12. In a recent decision in MD. Malek Mondal v. Pranjal Bardalai (supra) Hon'ble Supreme Court held that the proceedings of the complaint are at initial stage after the cognizance has been taken. The allegations in the complaint are grave. The recovery, according to the prosecution, is of 2.050 kg. of heroin which, according to the statement of Dilip Das, belonged to the petitioner. The question whether Section 42 of the NDPS Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced (19 of 25) [CRLMP-3073/2014] before the Special Judge. Prima-facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for in-depth examination of this question. The contention that there is no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accused, Dilip Das, also cannot be accepted, at this stage, when only cognizance has been taken and the petitioner is still to be interrogated. It was further held by Hon'ble Supreme Court that at that stage it cannot be said that there was no material for taking cognizance by the special court.
16. Rule 3(1) of the Rajasthan Police Rules, 1965 provides as under:
3.1 Officer Incharge of Police Station.- (1) The Officer incharge of a Police Station is ordinarily a Sub-Inspector. Within the limits of the Police Station Jurisdiction the Sub-Inspector is primarily responsible for the effective working, management, good conduct and discipline of the local police, for the preservation of peace and the prevention and detection of crime, the due performance of all police duties, the exercise by the police of the powers granted them by law, the correctness of all registers, records and reports prepared by them, and the direction, instructions and efficiency of all police subordinates in the station jurisdiction and matters for which the officer incharge of a police station is essentially answerable.
(2) It is the duty of the officer incharge of a police station to acquire detailed and accurate local knowledge, to secure the whole-hearted cooperation of Panchas of Panchayats and Chowkidars, encouraging them to give an information, to assist him in this work and to range themselves loyally on the said of the administration. Through them and his own subordinates he is required to keep a strict watch over all known bad characters and he shall communicate all intelligence of movement to his superiors and to there police stations without delay.
(20 of 25) [CRLMP-3073/2014] (3) Within the limits of his charge he is the chief investigating officer and as such he shall conduct all investigations in person, so far as circumstances permit. His responsibility in this matter must be carefully maintained. Should it be necessary, owing to the absence of the Sub-Inspector or any other cause, for a subordinate to undertake an investigation, the Sub-Inspector shall satisfy himself by perusing the case diary and questioning the investigating officer that the investigation has been fully and properly conducted, shall remedy what is defective, and take over the investigation as soon as he is free to do so, except in a case originally investigated by an Assistant Sub-Inspector where he will be guided by rule.
(4) When present at the police station, he shall personally supervise the routine work of the station house, and shall be carefully to see that there are no arrears of correspondence and that the accounts are correct.
21. In the instant case, from the evidence on record, prima-facie it is established that Sub-inspector Harendra Singh, at the relevant time and date when the search and seizure was made and proceedings were drawn including recording of secret information, sending it to the higher officials, giving of notice Under Section 50 of the NDPS Act, arrest of the accused non-petitioners, for all practical purposes, was the Station House Officer, P.S. Chanderiya as the regular Station House Officer was out of station and Harendra Singh, Sub-inspector was next in rank to him and therefore, was empowered to exercise the powers of Station House Officer, P.S. Chanderiya and while exercising those powers, the search and seizure was made by him. Therefore, the judgments relied on by the learned Counsel for the accused-non-petitioners are of no help to the non-petitioners as they turn on their own facts. In the instant case, the police officer who conducted search and seizure is not lower in rank than Sub-Inspector and therefore, authorising him to hold the charge of police station as Station House Officer is in conformity with the provisions of NDPS Act and notification of the State Government dated 16.10.1986. On the contrary, the judgments relied on by learned public prosecutor apply with all force on the facts of the instant case and (21 of 25) [CRLMP-3073/2014] therefore, the order impugned discharging the accused- non-petitioners at the initial stage of framing charge cannot be sustained and is liable to be set aside."
14. Learned Public Prosecutor has also relied upon the definition of Officer Incharge of Police Station as defined under Section 2(o) which includes the senior-most officer present in the Station House to hold the charge as Officer Incharge of the Police Station.
15. Learned Public Prosecutor has also submitted that they had obtained legal advice from the Deputy Director (Prosecution) before filing the charge sheet and as per the expert opinion, the violation of Section 42 of the NDPS At was not found.
16. After hearing learned counsel for the parties and perusing the record of the case as well as precedent laws cited at Bar, this Court is of the opinion that admittedly, Shri Kamal Chand who was holding the charge of Station House Officer and was having the rank of Sub-Inspector at the relevant time instead of Station House Officer Shri Veera Ram Choudhary, conducted the proceedings according to Section 42 of the NDPS Act. Section 42 of the NDPS Act reads as under:
"1[42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is (22 of 25) [CRLMP-3073/2014] empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
[Provided that in respect of holder of a license for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this At or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub- inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(23 of 25) [CRLMP-3073/2014] (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]
17. The notification published in Rajathan Gazette on 16.10.1986 while exercising the powers conferred by Section 42 of the NDPS Act, reads as follows:
"8. In the present case, it is admitted fact that notification was published in Rajasthan Gazette on 16-10-86 which is reproduced as under :
(III) Published in the Rajasthan Gazette, Extra, Part IV-C(II) dated Oct. 16th, 1986 at p.269.
No. F.I(3) FD/Ex/85-1, dated 16-10-86.
S.O.I 15.- In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorise all inspectors of police, and sub- inspectors of police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect:
Provided that when power is exercised by police officer other than police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned police Inspector or S.H.O. of the Police Station concerned."
18. The notification of the State of Rajasthan clearly authorizes of Inspectors of Police and Sub-Inspector of Police posted as Station House Officer to exercise the powers mentioned in Section 42 of the NDPS Act. Admittedly, Shri Kamal Chand Sub-
Inspector was holding the charge of Station House Officer instead (24 of 25) [CRLMP-3073/2014] of Station House Officer posted in that police station who was Shri Veera Ram Choudhary.
19. The powers as enumerated under the NDPS Act empowered the officers of the State Government and Central Government are specific and ought to be strictly construed. This Court has seen the precedent law in various judgments, whereby it has been held that such powers ought to be exercised in a strict sense. Even if the proceedings are completed by the learned court below then also the same shall be vitiated on account of not following the provision of Section 42 of NDPS Act. It has been noticed in the precedent law that any proceedings not in conformity with Section 42 of the NDPS Act was per se illegal and would vitiate the trial and, therefore, any argument could not be called to support the proceedings.
20. The precedent law cited by learned Public Prosecutor is not applicable in totality as the precedent law does not say that the safeguards enshrined in Section 42 of the NDPS Act need not to be followed but merely says that since no loss has been caused due to such proceedings, therefore, they should not be interfered with. However, even if both the precedent laws are weighed against each other then also this Court found that the bench strength of the judgments cited by the learned Public Prosecutor are same however T. Nathamuni (supra) is a subsequent judgment and the precedent law laid down in Roy. V.D. (supra) has not been considered in that, and by doctrine of per incuriam, (25 of 25) [CRLMP-3073/2014] the earlier law laid down by the Hon'ble Apex Court shall be binding as per the precedent value. It is admitted position that the Sub-Inspector was posted as Station House Officer of concerned police station namely Shri Veera Ram Choudhary whereas the proceedings undertaken by Shri Kamal Chand Sub-Inspector, who was only holding the charge of Station House Officer, which compels this Court to intervene in the matter, and in light of the above, the proceedings in the instant case are quashed, as they would perpetuate illegality being in direct violation of Section 42 of the NDPS Act read with Rajasthan Gazette published on 16.10.1986 reproduced above.
21. In light of the aforesaid discussion, the present misc.
petition is allowed and the criminal proceedings initiated vide charge sheet No.75/2012 dated 03.03.2012 and registered as Criminal Case No.22/2012 before learned Special Judge (NDPS Act Cases), Chittorgarh are hereby quashed and set aside. The stay petition also stands disposed.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/