MRIDULA BHATKAR, J.

1. Rule. Rule made returnable forthwith. By consent, the Writ Petition is heard finally and disposed of at the stage of admission.

2. The Union of India through Intelligence Officer, Directorate of Revenue Intelligence has filed this Writ Petition under Article 226 r/w. 227 of Constitution of India wherein the order dated 29th October, 2018 releasing the respondents/original accused nos. 1 and 2 under section 169 of Cr. P.C. is challenged.

3. On 27th June, 2018 Directorate of Revenue Intelligence had recovered 20 kgs. of white powder purported to be methaqualone. Thereafter in search, 10 kgs. of white powder purporting to be methaqualone and tablets of Tramadol from godown were recovered. The Directorate of Revenue Intelligence investigated the matter and submitted File No. DRI/MZU/INT-91 of 2018. The prosecution was initiated against the accused for the offence punishable under section 8C r/w. 22(C) of NDPS Act, 1985 and under sections 28, 29, 23(C) r/w. 8c of NDPS Act. The accused were produced before the Special Judge, NDPS on 20th October, 2018 and at that time, negative CA report was received by the Investigating agency and therefore, the Special Prosecutor moved an Application under section 169 of Cr. P.C that investigating agency has decided not to prosecute the accused but to release them and therefore, the Judge forthwith released them under section 169 of Cr. P.C. In absence of the consent given by the Investigating officer, the Application under section 169 of Cr. P.C. submitted by the prosecutor was illegal and wrong and so the order passed by the learned Judge. Hence, this Writ Petition is filed challenging the said order.

4. Learned Prosecutor has submitted that the investigating agency never gave consent to move an Application for release of the accused because the huge quantity of tablet Tramadol, i.e., nearly 2 to 2.44 lakhs tablets of various brands were recovered and seized from respondent No. 1. Further, the investigation revealed that respondents were not having proper valid licence to possess or manufacture these tablets. She submitted that the learned Special Prosecutor without considering the fact that test report confirming the positive for Tramadol NDPS substance, inadvertently filed the closure application on that day under section 169 of Cr. P.C. and to move such Application, consultation of complainant-Investigation officer Mr. Manoj Choudhary was required. She has submitted that Investigating Officer Manoj Choudhary has specifically refused to give consent for filing Application under section 169 of Cr. P.C.

5. Per contra, the learned counsel for the respondents supported the order passed by the learned trial Court Judge mainly on the ground that CA report was negative in respect of contrabands seized by the police. He further submitted that the Application in fact was made under section 321 of Cr. P.C. which gives power to the Prosecutor to withdraw the accused from prosecution. In support of his submissions, he relied on the following decisions:

(i) Constitutional Bench judgment of Supreme Court in the case of Nagendra Nath Bora & Anr. vs. The Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240 on the point of restrictions of powers of the High Court to invoke the writ of certiorari when there is no error of law.

(ii) The learned counsel further submitted that though in the Application, section is wrongly quoted as 169 instead of 321 of Cr. P.C., the order passed therein cannot be illegal only for the mistake of quoting wrong section. On this point, he relied on the judgment of Supreme Court in the case of T. Nagappa vs. Y. R. Muralidhar reported in, (2008) 5 SCC 633.

(iii) Judgment of Supreme Court in the case of Subhash Chander vs. State (Chandigarh Administration) & Ors reported in, (1980) 2 SCC 155.

(iv) Judgment of Supreme Court in the case of Vijaykumar Baldev Mishra alias Sharma vs. State of Maharashtra reported in, (2007) 12 SCC 687 on the point