Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 55

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
DHIRAJ SINGH THAKUR, PUNEET GUPTA, JJ.
National Investigation Agency – Appellant
Versus
Mushtaq Ahmad Malik and Others – Respondents
Crl. Appeal (D) No. 10 of 2020, Crl. M. No. 707 of 2020
Decided On : 27-04-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr. Vishal Sharma.
For the Respondent: Mr. S.S. Ahmed.

Point of Law: Police officer's power to investigate cognizable case - Once information is received in regard to commission of cognizable offence by an officer in charge of a police station, such officer in terms of Section 154 is required to reduce it into writing and is also required to investigate the same in terms of Section 156.

Headnote:
National Investigation Agency Act, 2008 - Section 21 - NDPS Act - Section 8/21 - Code of Criminal Procedure, 1973 - Section 196-B and 4(e) - Arms Act - Section 7/25 - Ranbir Penal Code - Section 120-B, 121, 122 and 123 - Search and Seizure - 12 sealed packets of brown sugar were seized - Intervening night of 8th/9th of July, 2018 at Saidpora, Karnah, during search of a Tata Sumo vehicle one bag containing 02 AK-56 rifles, 02 AK-56 magazines and 56 live rounds were recovered from two persons, respondent No. 1 and 2 - Further during search of Tata Sumo one bag containing 12 sealed packets of brown sugar were seized from two persons respondent No. 3 and 4.
Finding of the Court:
It was not mandatory for the District Magistrate to first order a preliminary investigation before filing a complaint in terms of Section 196-A of Code of Criminal Procedure, 1989; and (c) that communication can be said to be a complaint in terms of Section 196-A of Code of Criminal Procedure, 1989 - Impugned judgment and order to that extent is therefore, set aside. Trial Court is directed to frame the charges against the respondents for commission of offences under Section 120-B, 121, 122 and 123 RPC.
Result: Order accordingly.

JUDGMENT :

DHIRAJ SINGH THAKUR, J.

1. This is an appeal under Section 21 of the National Investigation Agency Act, 2008 against the order dated 02.03.2020 passed by the learned Special Judge, NIA, Jammu to the extent that the accused-respondents herein have been discharged under Section 120-B, 121, 122 and 123 of Ranbir Penal Code (for short ‘RPC’) in FIR No. RC-01/2019/NIA/JMU.

2. Briefly stated the material facts are as under.

3. An FIR bearing No. 45/2018 dated 9.7.2018 came to be registered at Police Station, Karnah, District Kupwara under Section 8/21 of the NDPS Act, 7/25 of the Arms Act and 13 of Unlawful Activities (Prevention) Act, 1967.

It appears that on the intervening night of 8th/9th of July, 2018 at Saidpora, Karnah, during search of a Tata Sumo vehicle bearing Registration No. JK05A-4359, one bag containing 02 AK-56 rifles, 02 AK-56 magazines and 56 live rounds were recovered from two persons, namely, Mushtaq Ahmad Malik-respondent No. 1 and Shabir Ahmed Gakhad-respondent No. 2. Further during search of Tata Sumo bearing Registration No. JK09-8135, one bag containing 12 sealed packets of brown sugar were seized from two persons, namely, Zakir Hussain Mir-respondent No. 3 and Rafiq Ahmed Magrey-respondent No. 4.

The involvement of two more persons, namely, Alam Bhat-respondent No. 5 and Mohd. Yousuf Khawaja-respondent No. 6 was also disclosed by the above respondents.

The further case was that on the disclosure made by accused, namely, Alam Bhat-respondent No. 5 herein, 02 grenades of Under Barrel Grenade Launcher (UBGL) were seized from his house and further that on the disclosure made by accused-Mohd. Yousuf Khawaja-respondent No. 6, 10 rounds of AK rifle were also recovered from his house.

4. It further appears that the case registered under FIR No. 45 of 2018 was re-registered as RC/01/2019/NIA/JMU at Police Station, NIA, Branch Office, Jammu on 01.02.2019 pursuant to order dated 30.1.2019 issued by the Govt. of India, Ministry of Home Affairs.

5. Based upon the investigation conducted by the NIA, following offences were made out against each of the accused:

(i) Mushtaq Ahmad Malik (R-1), under Sections 120B, 121, 122 and 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act and 13, 18, 20 and 23 of UA(P) Act, 1967.

(ii) Shabir Ahamad Gakhad @ Sahanaz (R-2), under Sections 120B, 121, 122 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act and 13, 18, 20 and 23 of UA(P) Act, 1967.

(iii) Zakir Hussain Mir (R-3) under Sections 120B, 121, 122 and 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act and 13, 18, 20 and 23 of UA(P) Act, 1967.

(iv) Rafiq Ahamad Magrey (R-4), under Sections 120B, 121, 122 and 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act and 13, 18, 20 and 23 of UA(P) Act, 1967.

(v) Alam Bhat @ Alama (R-5), under Sections 120B, 121, 122 and 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act, 4 and 5 of Explosive Substances Act, 1908 and 13, 18, 20 and 23 of UA(P) Act, 1967.

(vi) Mohammad Yousuf Khawaja (R-6), under Sections 120B, 121, 122 86 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms act and 13, 18, 20, and 23 of UA(P) Act, 1967.

6. A detailed investigation report in the matter was forwarded to the District Magistrate, Kupwara, who upon going through the investigation report and other documents on record, recorded his satisfaction regarding a prima-facie case having been made out against the accused and vide his communication dated 20.7.2018 addressed to the learned Special Judge, NIA, Jammu requested that the accused be tried for offences under Section 120-B, 121, 122 and 123 of the RPC, 1989.

7. What was stated in paragraphs 5 and 6 of the communication addressed by the District Magistrate, Kupwara to the learned Special Judge, NIA, Jammu reads as under:

“5. And whereas, ongoing through the Investigation Report and other documents on record, I am satisfied that a prima-facie case is made out under section 120-B, 121, 122, 123 of Ranbir Penal Code against the above noted accused person as the case may be, The abov