KOSHY, J.

This Crl. Appeal was referred to the Division Bench by learned single Judge doubting the decision of another single Bench decision of this Court in Naushad v. State of Kerala, (2000) 1 Ker LT 785 : (2000 Cri LJ 2870). There it was held by the learned single Judge of this Court that when complainant and investigating officer are one and the same, it cannot be said to be fair in a proceeding under Narcotic Drugs and Psychotropic Substances Act, 1985 (in short N.D.P.S. Act) and the learned Judge made the following observations in the reference order :

"It is not unusual in this state that in N.D.P.S. Act cases the detecting official himself proceeds with the investigation and lays charge. It is to be remembered that the investigation in such cases are done by the officers specially empowered under the provisions of the NDPS Act. I feel a genuine doubt whether in N.D.P.S. cases the principle that in a case where a police officer detects a crime, investigation should invariably be done by a superior or top ranking officer can be laid down as a general proposition."

Therefore, the question to be considered by us is that whether it is obligatory under N.D.P.S. Act that the Investigating Officer who files a complaint before the Court should be a higher official than the person who detects the crime and whether detecting officer and the Investigating Officer can one and the same.

While deciding Naushad's case, learned single Judge referred to his own earlier judgment in Xavier v. State of Kerala, (1998) 1 Ker LT 686 : (1998 Cri LJ 3182), where the learned Judge held as follows :

"In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous informations recorded under Ss. 154 or 155, Cr. P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161, Cr. P.C. enjoined in Ss. 145 and 157 of the Indian Evidence Act and proviso of S. 162, Cr. P.C. In the instant case, before me, PW 1 is an Assistant Sub-Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub-Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub-Inspector of Police or any other Police Officer above the rank of PW 1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner."

No precedents were quoted in the above decision. We note that the above decision was rendered in a case where accused was found guilty under Section 51(a) of the Kerala Police Act. There is no question of any detailed investigation or recording of information regarding a complaint under Section 161 and therefore we are of the opinion that the decision reported in Xavier's case (1998 Cri LJ 3182) (supra) with respect to process under Section 51(a) of the Kerala Police Act does not lay down correct law as there is no question of separate Investigating Officer in such cases. In any event, the above is not a case under the N.D.P.S. Act and the decision is not applicable in a case under N.D.P.S. Act.

Naushad's case (supra) is under the N.D.P.S. Act itself. In that case the learned Judge referred a decision of the Rajasthan High Court in Gyan Chand v. State of Rajasthan, 1993 Cri LJ 3716. That was a case where a Circle Inspecto