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IN THE HIGH COURT OF GAUHATI
Rumi kumari Phukan, J.
Chow Chiktawa Jeinow - Petitioner
Versus
State of Arunachal Pradesh & Ors. - Respondents
Crl. Pet.No. 17(AP) of 2014
Decided On : 01-10-2015
For the Petitioner: T.W. Mantaw, C.T. Mantoong.
For the Respondents: PP, Arunachal Pradesh.
Headnote:
Constitution of India,1950 - Article 21 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42 and sub-Section (1) and (2) of Section 42 and 50 - Code of Criminal Procedure, 1973 - Sections 482 and Section 167(5) - Possession of drugs - Praying for quashing and setting aside - Notice - Application has been filed under Section 482 of Code of Criminal Procedure, 1973, praying for quashing and setting aside of investigation arising out - Case No. under Section 21/27 Narcotic and Psychotropic Substances Act, 1985, conducted by Sub-Inspector of Police – Petitioner is arrayed as an accused in aforesaid case on basis of an FIR lodged before said police station to effect that petitioner was found to be in possession of drugs suspected to be brown sugar within 500 mg - In pursuance of said FIR, petitioner was arrested and detained behind bar and subsequently, released on bail - Challenges of petitioner is that investigating officer of case has no any authority of law to investigate case NDPS P.S. as no any notification has been issued by Central Government or State Government as required under Section 42 of Act - Investigating officer to exercise power of arrest, search and seizure and investigation - It contends that such investigation carried-out by said officer is void initio and lacks sanction of authority of law which infringes fundamental right of petitioner as directed under Article 21 of Constitution inasmuch as provision of section 50 of NDPS Act requires investigating officer to produce accused before Magistrate at time of making seizure of drugs from person, which has not been complied with in this case - Seizure of drugs from possession of petitioner is doubtful and unreliable -– Held, Scope of section 482 of Code of Criminal Procedure, 1973 is well defined and inherent power could be exercised to prevent abuse of process of Court and to otherwise - Secure ends of justice - Exercise of such power did not confer any arbitrary jurisdiction to High Court to act according to whims or caprice - This extra-ordinary power has to be exercised sparingly with circumspection and as far as possible, High Court should not loathe to interfere at early/premature stage of investigation - Hindrance of process of law from taking its normal course without any supervening circumstance in a casual manner, merely on whims and fancy of Court tantamount to miscarriage of justice - In given case, offence is registered under Sections of NDPS Act, and certain amount of brown sugar has been recovered and copy of notice under section 50 of NDPS Act, has been produced to show sufficient compliance of section 50 of NDPS Act, prior to personal search of accused - However, petitioner can take opportunity of proving non-compliance of such provision of Section 50 of NDPS Act, if any, as well as Section 167(5) of Code of Criminal Procedure, 1973, during course of trial - In view of all above, having found substance in submissions of learned Addl. Advocate General and for better interest of society, the prayer of petitioner to quash investigation Police Station Case No. is hereby rejected – Court appreciate forceful submissions of learned counsel for petitioner has dealt such matters, diligently and has brought notice of matter to all concerned for which ultimately, State has brought out a specific Notification which will serve the purpose - Accordingly matter stands disposed
Rumi kumari Phukan, J.
The present application has been filed under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing and setting aside of the investigation arising out of Miao P.S. Case No. 19/2014 under Section 21/27 Narcotic and Psychotropic Substances Act, 1985, conducted by the Sub-Inspector of Police of Miao Police Station.
2. The petitioner, herein, is arrayed as an accused in the aforesaid case on the basis of an FIR dated 11.8.2014 lodged before the said police station to the effect that the petitioner was found to be in possession of drugs suspected to be brown sugar within 500 mg. In pursuance of the said FIR, the petitioner was arrested and detained behind the bar and subsequently, released on bail. Now, the challenges of the petitioner is that the investigating officer of the case has no any authority of law to investigate the case under NDPS P.S. as no any notification has been issued by the Central Government or the State Government as required under Section 42 of the Act, authorising the investigating officer (the Inspector) to exercise the power of arrest, search and seizure and investigation. It contends that such investigation carried-out by the said officer is void ab initio and lacks sanction of authority of law which infringes the fundamental right of the petitioner as directed under Article 21 of the Constitution inasmuch as provision of section 50 of the NDPS Act requires the investigating officer to produce the accused before the Magistrate at the time of making seizure of drugs from the person, which has not been complied with in this case. As such, the seizure of drugs from the possession of the petitioner is doubtful and unreliable. It is the submission of the petitioner that under the above facts and circumstances, the chances of conviction of the petitioner does not arise and charge-sheet, if so filed, on the basis of such unlawful investigation will be nothing but would be an abuse of the process of law which would finally end up in the acquittal of the petitioner on the sole ground of lack of jurisdiction and procedural lapse. Petitioner has relied on the case of Roy V.D. v. State of Kerala reported in AIR 2008 SCC 590 in support of his contention. Situated thus, the petitioner has prayed for setting aside the investigation so carried in connection with the aforesaid case as well as charge sheet, if so filed.
3. In response to the notice served, Mr. Ete, learned Additional Advocate General, Arunachal Pradesh, has entered his appearance and instead of filing any written reply, has advanced his oral arguments by placing reliance on various case laws. By taking leave of the Court, learned Additional Advocate General. Arunachal Pradesh, has also placed on record, some Notifications issued by the State of Arunachal Pradesh and has urged this Court to consider the above Notifications which can be relied upon for the purpose of this case.
4. As we found the petitioner, herein, has challenged the investigation so carried-out under the Miao P.S. Case No. 19/2014 under the NDPS Act, on twin grounds that investigating officer was not empowered to investigate the case as required as per Section 42 of the said Act and search and seizure of the accused, is bad in law and violative of Section 50 of the NDPS Act.
5. Learned counsel for the petitioner Mr. Mantaw, has strenuously argued that any arrest, search and seizure, etc., by an officer not empowered, is grossly illegal and would vitiate the trial. Relying upon the case law as reported in (2000) 8 SCC 590, it has been argued that no officer other than an empowered officer can resort to section 41 (2) or exercise power under Section 42(1) of the NDPS Act or to make a complaint under clause(d) of sub-Section 1 of Section 36(A) of the said Act. Any collection of material, detention, arrest or search and seizure, etc., by an officer not been empowered, lacks sanction of law and is inherently illegal and as such, the same c
