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IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, J.
HAMID ULLAH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 10031 Of 1988
Decided On : 10/13/1988
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 53, 76, 77, 78 - RULES 76, 77, 78 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 167 - INVESTIGATION - POWERS OF EXCISE INSPECTOR - REMAND - LEGALITY.
Fact of the Case:
The petitioners, Hamid Ullah, Vahid, and Halim, were arrested on 20-8-1988 for possession of contraband charas. They were produced before the CJM Link Magistrate Meerut on 21-8-1988, who remanded them to judicial custody till 29-3-1988. The petitioners filed revision petitions challenging the remand order, arguing that the arrest, seizure, and production of the accused by the Excise Inspector were illegal as there was no notification investing him with the powers of an officer-in-charge of a police station under Section 53(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).
Finding of the Court:
The court held that the notification dated 8-10-1986 issued by the State of Uttar Pradesh under Section 78 of the Act, which empowered certain officers of the Excise Department with the powers of an officer-in-charge of a police station for the investigation of offenses under the Act, was sufficient compliance with the requirement of Section 53(2). The court further held that the Excise Inspector had the power to investigate the matter and seek remand of the arrested accused, as the definition of "investigation" in the Code of Criminal Procedure (CrPC) includes all proceedings for the collection of evidence conducted by a police officer or any person authorized by a magistrate. The court also held that the production of the accused before the magistrate along with the contraband articles and materials, without a case diary, was sufficient compliance with Section 167 of the CrPC, as the Act does not require the filing of a charge sheet by an Investigating Officer of a Police Station.
Issues: 1. Whether the arrest, seizure, and production of the accused by the Excise Inspector were illegal due to the absence of a notification under Section 53(2) of the Act. 2. Whether the Excise Inspector had the power to investigate the matter and seek remand of the arrested accused. 3. Whether the production of the accused before the magistrate without a case diary was sufficient compliance with Section 167 of the CrPC.
Ratio Decidendi: 1. The notification dated 8-10-1986 issued by the State of Uttar Pradesh under Section 78 of the Act, which empowered certain officers of the Excise Department with the powers of an officer-in-charge of a police station for the investigation of offenses under the Act, was sufficient compliance with the requirement of Section 53(2). 2. The definition of "investigation" in the CrPC includes all proceedings for the collection of evidence conducted by a police officer or any person authorized by a magistrate. Therefore, the Excise Inspector had the power to investigate the matter and seek remand of the arrested accused. 3. The production of the accused before the magistrate along with the contraband articles and materials, without a case diary, was sufficient compliance with Section 167 of the CrPC, as the Act does not require the filing of a charge sheet by an Investigating Officer of a Police Station.
Final Decision: The court dismissed the petitions, holding that the remand order passed by the CJM was legal and that the petitioners should surrender before the magistrate's court by 15th October 1988.
PALOK BASU, J.
( 1 ) THESE two petitions under S. 482, Cr. P. C. arise out of the following facts : on 20-8-1988 some contraband charas was recovered from the possession of Hamid Ullah, Vahid and Halim by one Sri H. P. Singh, an Excise Inspector of the State of Uttar Pradesh. The three were consequently arrested on the said date. On 21-8-1988 all three accused were produced before the C. J. M. Link Magistrate Meerut who passed the following order :-"aaj Dinank 21-8-88 Ko Uprokt apradh Men Muljim Uprokt Ko Thaney Dwara Giraftar Karkey Remand Koy Merey Samaksh Pesh Kiya Gaya. I. R. Ki Remand Prarthna Patra Key Auolokan Dwara Giyat Hua Ke Vivechana Abhi Shesh Hai. The C. D. has not been produced. The Excise Inspector has submitted that G. D. and C. D. are not maintained by the Excise Officers as only State complaint is preferred. The case property is in duly sealed condition. The wrapper has a label (D-19a) with the signature of the accused. The Excise Inspector has submitted, that the seized property shall be sent for Charcoal examination report and if the report is positive then he shall prefer a complaint. Heard. Perused the material On record. The accused remanded to judicial custody till 29-3-1988. "
( 2 ) AGAINST the said remand order dated 21-8-88 Criminal Revision No. 294 of 1988 was preferred by Halim. Criminal Revision No. 295 of 1988 was filed by Hamid Ullah and Crl. Revision No. 296 of 1988 was filed by Wahid before the Sessions Judge Meerut. These revisions were admitted and the Sessions Judge granted bail to all the three accused. By an order dated 3-10-1988 all the three petitions have been dismissed against which Hamid Ullah has filed Cr. Misc. Application No. 10031 of 1988 while Wahid and Helium have filed Cr. Misc. Application No. 10059 of 1988. When these matters came up before this Court on 7-10-1988 the Government Advocate was directed to obtain instructions to file a counter-affidavit and the matter was directed to be taken up for admission on 12-10-1988. Sri Satish Trivedi and Sri Rajesh Kumar Sharma have argued the matter on behalf of the applicants and Sri Prem Prakash Yadav, learned Deputy Government Advocate has appeared on behalf of the State of Uttar Pradesh and also the Excise Inspector, U. P. Excise, Sector 1 Meerut.
( 3 ) SRI Trivedi has argued that the remand granted by the Magistrate on 21-3-88 is not in accordance with law and, therefore, the detention of all the three applicants was not legal and consequently the two petitions be allowed and the accused should be set at liberty. The applications are being contested on the ground that there is no illegality in the proceedings and all the actions and orders are in accord with the provisions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act. ). My attention was drawn to S. 53 of the Act by Sri Trivedi. It was argued that in view of Sub-Sec. (2) of S. 53 a notification by the State of Uttar. Pradesh investing an officer of the State Excise Department with the powers of officer-in-charge of a Police Station for investigation of offences under the Act should have been made and in the absence of such notification the arrest, seizure, and production of accused by Sri H. P. Singh, Excise Inspector, is illegal. For correct appraisal of the arguments S. 53 itself may be quoted below :"section 53, Power to invest officers of certain departments with powers of an officer-in-charge of police station - (1) The Central Government, after consultation with the State Government may be notification published in the official Gazette, invest any officer of the department of central excise narcotics customs, revenue intelligence, or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of
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