Manipur High Court
The Narcotics Control Bureau (Ncb) vs Mr. Paokhothang Haokip on 21 November, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
KABORA Digitally signed IN THE HIGH COURT OF MANIPUR
by
MBAM KABORAMBAM AT IMPHAL
SANDEEP SANDEEP SINGH
Date: 2022.11.21
SINGH 14:45:44 +05'30'
Cril.Rev.Petition No. 1 of 2022
The Narcotics Control Bureau (NCB), represented by
its Superintendent, Imphal Sub Zone, Changangei
Ucheckon, Airport Road, P.O. & P.S. Lamphel,
Imphal West District, Manipur-795004.
....Petitioner
- Versus -
1. Mr. Paokhothang Haokip, aged about 60 years,
S/o. Lt. Jamhou Haokip, a resident of New Samtal
Village, P.O & P.S. Chandel, Chandel District,
Manipur & Moreh Ward No. 3, Tengnoupal,
Manipur-795102.
2. Ms. Manglamching Zou, aged about 56 years,
D/o. Liansuangthang Zou, a resident of Moreh
Ward No. 3, Tengoupal District, Manipur Sub
Division Chandel, Manipur-795131.
3. Mr. Thanglamkhup Zou, aged about 42 years,
S/o. Haochingthang Zou, a resident of Bungmol
Village, Chandel District, Manipur.
4. Mr. Manglinhao Zou, aged about 35 years,
S/o. Khamlianthang Zou, a resident of Moreh Ward
No. 3, Tengnoupal, Manipur Sub Division Chandel,
Manipur- 795131.
5. Ms. Nongaihlian Zou, aged about 31 years,
D/o. Khamliangthang Zou, a resident of Ward No.
3, Moreh, P.S. Moreh, Manipur-795131.
6. Mr. Waipho, aged about 25 years, S/o. Ubokyi, a
resident of Myopo Village, Sagaing region,
Bhudhaland Tower, Myanmar.
...Respondents
Crl.Rev.P. No. 1 of 2022 Page 1
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
For the petitioner : Mr. W. Darakeshwar, Sr. PCCG
For the respondents : XXXX.
Mr. Anjan Prasad Sahu, amicus curiae
Date of Hearing : 16.11.2022
Date of Judgment & Order : 21.11.2022
JUDGMENT AND ORDER
[1] On 07.12.2020, the Narcotics Control Bureau (NCB), Imphal, conducted
search and seizure operations at a clandestine makeshift laboratory at Ward No. 3, Moreh, Tengnoupal. Three persons were found present and seizures were effected upon search of the premises. Methamphetamine (W/Y) tablets, gem stones, mobile phones, currency, a double bore gun with live cartridges and sandalwood were seized during these operations, which concluded at 18:20 hours on that day. Pursuant to the inputs provided by one of the three suspects, the NCB conducted further search and seizure operations at another clandestine laboratory at Ward No. 3, Moreh, Tengnoupal. Three persons were found at this laboratory also and after search of the premises, further seizures were effected. Methamphetamine (W/Y) tablets, Methamphetamine - in the form of powder and ice crystal, crude Methamphetamine, tramadol hydrochloride capsules, pregbalin capsules, buspirone hydrochloride tablets, a factory-made French pistol with live rounds, mobile phones, currency and gem stones were seized at this laboratory. The formalities were concluded at 20:45 hours. Thereupon, NCB Crime No. 05/04/NCB/Imp/WY/CL/2020 dated 07.12.2020 was registered against the six persons Crl.Rev.P. No. 1 of 2022 Page 2 found at the spot under Sections 8(c), 22(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act of 1985). [2] On 11.12.2020, the NCB filed an application in Cril. Misc. Case No. 249 of 2020 before the Special Court (ND&PS), Lamphelpat, Imphal, seeking permission to handover the seized arms and ammunition, sandalwood and gem stones to either the Imphal Police Station or the Moreh Police Station or any other Police Station/Agency for further investigation. This application was filed on the premise that the NCB was not empowered to investigate offences under any enactment other than the Act of 1985. However, by order dated 04.01.2021, the learned Special Court Judge held that the NCB had the power to investigate offences other than those arising under the Act of 1985 and directed it to take appropriate steps with regard to the seized arms and ammunition, sandalwood and stones according to law. Aggrieved thereby, the NCB filed this revision under Sections 397 and 401 Cr.P.C.
[3] Notice was served upon respondent Nos. 1, 2, 4 & 5 by speed post. Respondent No. 6 was served through the Superintendent, Central Jail, Sajiwa, by way of dasti. Substituted service of notice was effected upon respondent No. 3 through publication of the notice in newspapers. However, none of the respondents chose to enter appearance before this Court.
[4] On 01.03.2022, Mr. Anjan Prasad Sahu, learned counsel, was requested to assist the Court as an amicus curiae given the importance of the issue that arose for consideration.
[5] Heard arguments advanced by Mr. W. Darakeshwar, learned Sr. PCCG, appearing for the NCB; and the submissions made by Mr. Anjan Prasad Sahu, learned amicus curiae.
Crl.Rev.P. No. 1 of 2022 Page 3 [6] The short point that falls for consideration is whether the NCB has power
and jurisdiction to carry out investigation in relation to offences arising under enactments other than the Act of 1985. The learned Special Court Judge answered this question in the affirmative citing four reasons. According to him, the scheme of the Act of 1985 and, more particularly, the notifications issued by the Central Government under Section 42 thereof support the presumption that the NCB has power to investigate offences other than those arising under the Act of 1985. The second reason that found favour with the learned Special Court Judge is that the officers of the NCB are required to undergo training on various topics relating to drug law administration and enforcement but the topics enumerated include those unrelated to the Act of 1985 also. The third reason cited by the learned Special Court Judge is that prosecution and punishment of a person more than once for the same offence is barred by Article 20(2) of the Constitution. He also placed reliance on Section 26 of the General Clauses Act, 1897, which states to the same effect, and concluded that Section 36A of the Act of 1985 was put in place to give effect to this principle, by providing that the Special Court constituted under the Act of 1985 would have power to try offences other than those arising under the Act of 1985 also. The last reason recorded by the learned Special Court Judge is that Section 53 of the Act of 1985 vests officers discharging functions under the Act of 1985 with all the powers of police officers. He referred to the judgment of the Supreme Court in Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1], which dealt with this statutory provision and held that a confessional statement recorded by an officer acting under the Act of 1985 would also be hit by Section 25 of the Evidence Act, 1872, and could not be taken into account. It is on the strength of these four reasons that the learned Special Court Judge concluded that the NCB is duly empowered to investigate offences other than those arising under the Act of 1985 and issued directions accordingly.
Crl.Rev.P. No. 1 of 2022 Page 4 [7] Chapter V of the Act of 1985 is titled 'Procedure' and comprises Sections 41
to 68. Section 42 therein deals with the power of entry, search, seizure and arrest without warrant or authorization. Section 42(1) states to the effect that any officer superior in rank to a peon, sepoy or constable of the named departments can be empowered, either by general or special order by the Central Government or by the State Government respectively, to carry out search and seizure operations between sunrise and sunset, as detailed therein. Pertinent to note, this provision specifically speaks of such an authorized person taking appropriate action only if he has reason to belief that any narcotic drug/psychotropic substance/controlled substance, in respect of which 'an offence punishable under the Act of 1985' has been committed, is kept or concealed in any building, conveyance or enclosed space. Section 43 details the procedure to be followed by such an authorized person in the event of seizure and arrest in a public place. Section 53 is titled 'Power to invest officers of certain departments with powers of an officer-in-charge of a police station'. It reads to the effect that the Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the named departments or any class of such officers with the powers of an officer-in-charge of a police station for 'investigation of offences under the Act of 1985'. Sub-section 2 thereof provides that the State Government may, by notification published in the Official Gazette, invest any officer of the named departments or any class of such officers with the powers of an officer-in-charge of a police station for 'investigation of offences under the Act of 1985'. Therefore, vestiture of the powers of an officer-in-charge of a police station in these named officers or named class of officers is explicitly in the context of investigation of offences under the Act of 1985 and not under any other enactment. [8] Perusal of the notifications bearing SO Nos. 822 & 823, both dated 14.11.1985, issued by the Central Government, manifests that the officers named Crl.Rev.P. No. 1 of 2022 Page 5 therein were empowered to exercise the powers and perform the duties specified in Section 42 and Section 53 of the Act of 1985 respectively. These notifications did not and obviously could not exceed the ambit of the parent statute that they were issued under and they, therefore, did not vest the named officers with the power to deal with offences other than those arising under the Act of 1985.
[9] It would be apposite now to take note of Section 36A of the Act of 1985, upon which reliance has been placed by the learned Special Court Judge. This provision is titled 'Offences triable by Special Courts'. Section 36A (1) states to the effect that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences arising under the Act of 1985 which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed. Section 36A (2) states that when trying an offence under the Act of 1985, a Special Court may also try an offence other than an offence under the Act of 1985 with which the accused, may, under the Code of Criminal Procedure, 1973, be charged at the same trial. This provision therefore vests the Special Court with all-encompassing jurisdiction to try not only the offences arising under the Act of 1985 but also other offences with which an accused, facing trial for an offence under the Act of 1985, may be charged with. This fact is not sufficient, in itself, to infer that the specifically designated investigating agency for offences arising under the Act of 1985 would also have the power to investigate offences under other laws. It is basing on this non sequitur that the learned Special Court Judge arrived at the erroneous conclusion that the NCB would have power to investigate offences other than those arising under the Act of 1985. Neither the scheme of the Act of 1985 nor the notifications issued thereunder support such a conclusion.
Crl.Rev.P. No. 1 of 2022 Page 6 [10] As rightly pointed out by Mr. Anjan Prasad Sahu, learned amicus curiae,
there is no bar to a separate charge sheet being filed by another police station in relation to offences arising under other laws before the Special Court so that the same could be clubbed with the charge sheet filed by the NCB in relation to offences arising under the Act of 1985, so that the Special Court can try the accused for all the charged offences at the same trial, as provided in Section 36A (2) of the Act of 1985. That is the procedure to be followed after all the offences allegedly committed by the accused, the respondents herein, are properly investigated and final reports are filed under Section 173 Cr.P.C. The NCB, Imphal, is therefore permitted to hand over the arms and ammunition, sandalwood and gem stones etc. seized during the operations at Ward No. 3, Moreh, Tengnoupal, to the competent police station or agency for investigation of offences that may arise in connection therewith under other laws. Appropriate action shall thereupon be taken by the said police station/agency so that a final report can be filed before the Special Court, to be taken up along with the final report filed by the NCB in NCB Crime No. 05/04/NCB/Imp/WY/CL/2020.
On the above analysis, the order of the learned Special Court Judge holding that the NCB is empowered to investigate offences other than those arising under the Act of 1985 is unsustainable and is accordingly set aside.
Cril. Rev. Petition No. 1 of 2022 is allowed.
Last but not the least, this Court records its appreciation and expresses its gratitude to Mr. Anjan Prasad Sahu, learned amicus curiae, who graciously accepted the engagement and rendered invaluable assistance in the adjudication of this case.
CHIEF JUSTICE
FR/NFR
Indrajeet
Crl.Rev.P. No. 1 of 2022 Page 7