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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE N. ARUMUGHAM
Umar Abdul Shakoor Sorathia
Versus
The Assistant Director, Narcotics Control Bureau, South Zonal Unit, Madras
Crl.R.C.546 of 1996
Decided On : 20-09-1996
NARCOTICS CONTROL BUREAU - INVESTIGATION - FURTHER INVESTIGATION - PERMISSION - SPECIAL COURT - COMPETENCY - NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 173(8) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 53 OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36-A(1)(D) OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 200 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 4(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 2(XXIX) OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 2(H) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 190 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 25 OF THE EVIDENCE ACT, 1872 - SECTION 41(2) OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 67 OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 52-A OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 57 OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36-A(1)(C) OF THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 173(1) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 173(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 5 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 190(1)(B) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECOND INTERNATIONAL OPIUM CONVENTION, GENEVA - VIENNA CONVENTION - Held, the Narcotics Control Bureau, an independent investigating agency, empowered and authorised by the statute to file the complaint, on coming to know the involvement of a third person during the pendency of the case filed, is entitled to investigate further, but however, it must be subject to the area and circumstances pointed out by the Apex Court, not by the specific provisions of the N.D.P.S. Act.
Fact of the Case:
The Narcotics Control Bureau (NCB) filed a complaint under Section 36-A(1)(d) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985, against four accused persons for their involvement in an illicit export of Mandrax tablets. The Special Court took cognizance of the offences and framed charges against the accused. During the pendency of the trial, the NCB filed a petition under Section 173(8) of the Code of Criminal Procedure (CrPC), 1973, seeking permission to conduct further investigation in the matter of involvement of the revision petitioner, who was a foreign national, in the same offence. The Special Court granted the permission and the NCB conducted further investigation, which led to the arrest of the revision petitioner. The revision petitioner challenged the impugned order passed by the Special Court, contending that the NCB had no competency to seek permission to investigate further under Section 173(8) of the CrPC, and that the Special Court had no power to grant such permission.
Finding of the Court:
The High Court held that the NCB, being an independent investigating agency empowered to investigate offences under the NDPS Act, was entitled to file a complaint under Section 200 of the CrPC after investigation, and was also empowered to ask for permission from the Court which takes cognizance of the offences of the Act for further investigation of the case, when it comes across with a new fact or a new person, for the purpose of collecting all material evidence and statements and so on, within the purview of concept of investigation so as to nab the real accused under the law, by applying the provisions of the CrPC viz., Section 173(8) of the CrPC. However, the Court clarified that Section 173(8) of the CrPC would be applicable only to the cases where the cases were taken cognizance of on the basis of police report, and it may not be proper to file any petition under Section 173 (8) of the CrPC even for otherwise.
Issues: 1. Whether the Narcotics Control Bureau (NCB) had the competency to seek permission to conduct further investigation under Section 173(8) of the Code of Criminal Procedure (CrPC), 1973? 2. Whether the Special Court had the power to grant permission to the NCB to conduct further investigation?
Ratio Decidendi: 1. The NCB, being an independent investigating agency empowered to investigate offences under the NDPS Act, was entitled to file a complaint under Section 200 of the CrPC after investigation, and was also empowered to ask for permission from the Court which takes cognizance of the offences of the Act for further investigation of the case, when it comes across with a new fact or a new person, for the purpose of collecting all material evidence and statements and so on, within the purview of concept of investigation so as to nab the real accused under the law, by applying the provisions of the CrPC viz., Section 173(8) of the CrPC. 2. However, Section 173(8) of the CrPC would be applicable only to the cases where the cases were taken cognizance of on the basis of police report, and it may not be proper to file any petition under Section 173 (8) of the CrPC even for otherwise.
Final Decision: The High Court dismissed the revision petition, upholding the impugned order passed by the Special Court granting permission to the NCB to conduct further investigation.
As interesting substantial legal question, propagated by Mr.K. Asokan, learned counsel, however, almost already settled, in seeking the admission of this revision, to canvass the propriety and legality of the impugned order, passed by the learned Special Judge, Special Court (N.D.P.S. Act), Madras in C.C.No. 418 of 1995, dated 7. 1996, is extracted hereunder:
“Is the Assistant Director, Narcotics Control Bureau, South Zone, Madras competent to get permission from the Court under the N.D.P.S. Act for further investigation of a complaint filed under Sec.200 of the Code of Criminal Procedure and if so, whether the Special Court is competent to grant such permission?”
2. On 4. 1995 the Office of the Narcotics Control Bureau, Madras, is said to have received a fax message from the Drug Liaison Officer, Her Majesty’s Customs and Excise, Bombay, regarding the seizure of 20,34,000 Mandrax tablets in the Kingdom of Swaziland and this consignment is said to have been sent from India and since the goods attracted the definition of Narcotic Drugs and Psychotropic Substances Act, a case in F.No.48/1/3/95/NCB/MDS was registered by the Assistant Director, Narcotics Control Bureau, South Zonal Unit, Madras, the respondent herein. During the course of investigation it was found that the said goods have been sent by M/s.K.J. Exports at 36, Seventh Street, Sashtri Nagar, Madras-20 in the guise of clear bulbs to a company by name M/s.Dynamic Electronics Private Limited, P.O. Box No. 6730, Anneferre South Africa. Pursuant to the investigation conducted in India, a complaint in C.C.No. 418 of 1995 was filed in the Special Court for N.D.P.S. Act Cases, Madras against four persons by name Arif U.Patel, Y.V. Nagaraj, G.N. Venugopal and Arumugham. The Special Court took it on file and a charge for the offence under Sec.8(c) punishable under Sec.23 of N.D.P.S. Act was framed.
3. The Officers of the Narcotics Control Bureau are working in unison with INTERPOL and other agencies to fight drug trafficking pursuant to the Vienna Convention, to which, India is a signatory. They gathered intelligence that the petitioner herein is likely to visit India. In the context of the tele-fax message received, followed by the investigation done by the respondent and the contents made in the complaint viz., ‘during the course of investigation in India’ and abroad according to law, on scrutiny of documents seized in searches and otherwise and from statements recorded from the persons concerned in India and abroad, it has come to light that A-1 to A-4 and other persons known and unknown based in India and abroad had committed an offence under the N.D.P.S. Act...‘, the respondent filed a petition before the Special Court for N.D.P.S. Act cases on 7. 1996 for a formal permission to conduct further investigation in this case and accordingly, obtained the permission.
4. The application above referred to was filed under Sec.173(8) of the Code of Criminal Procedure. The verbatim narration of the same is hereunder:
“Application under Sec. 173(8), Crl.P.C: In the above case, complaint was filed and charges have been framed against the accused by this Hon’ble Court on 12. 1996 and the case is now under trial.
Now, there is definite information that out of some persons who were parties to the criminal conspiracy and referred in the complaint as ‘as other persons known and unknown based in India and abroad’ are now available in India. Their complicity in this offence has also been mentioned in the telefax message received from Interpol, South Africa through British Drug Liaison Officer, Bombay which forms part of the record in this case in this Hon’ble Court. It is submitted that Umar Abdul Shakoor Sorathia importer of the consignee of Mandrax into Mozambique, illicitly exported out of India, is now available in India and therefore, to bring out the involvement and complicity of the said Umar Abdul Shakoor Sorathia and order persons, he is necessarily to be interrogated.
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