The main legal point established in the judgment is the requirement for a reasonable ground of suspicion for invoking Section 58 of the NDPS Act and the importance of following the procedure of law for prosecuting an officer under the special Act.

JUDGMENT :

1. Heard Sri Dharm Raj Mishra, learned counsel for the applicant, Sri Rajan Mishra, Advocate holding brief of Sri Quazi Vakil Ahmad, learned counsel for the opposite party no.2, Sri Aniruddh Kumar Singh, learned A.G.A.-I and Sri Sanjay Kumar Yadav, learned AGA for the State.

2. By means of the instant petition, the applicant has sought following:-

(I) issue an order or direction in appropriate nature for setting aside the impugned order dated 26.04.2023 passed by the learned Additional Session Judge, F.T.C. -II, Bahraich contained as annexure No.1 to the petition and further may pleased to set aside the charge sheet No.7 of 2022 contained as annexure No.5 to the petition.

(II) Issue an order or direction in appropriate nature to set-aside the proceeding of case crime No.67/2005 under Section-342, 379, 427, 468, 471, 120 (B) I.P.C. and under Section 8/20/29 of the N.D.P.S. Act pending before learned Additional Session Judge, F.T.C. -II, Bahraich and direct the opposite party No.1 to investigate the matter in fair and impartial manner.

3. Factual matrix of the case is that the petitioner with other members of the Police team, on an information, raided and arrested Sarfaraz on 18 June 2003 from Nepal border and 1 KG of Charas, i.e., contraband substance was recovered from his possession and a First Information Report was lodged as Case Crime No. 202 of 2003 under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the Act 1985'). Thereafter, Shrinath Yadav was appointed as Investigating Officer who recorded the statement of the witnesses and prepared the site plan and submitted the chargesheet on 6 July 2003 but in the meanwhile, the father of the accused wrote a letter to the Human Rights Commission, that his son is being falsely implicated and thereafter the Special Secretary Home wrote a letter to the Superintendent of Police, Bahraich to conduct an enquiry regarding allegations levelled by the father of the opposite party no. 3 and Circle Officer, Nanpara, Bahraich was appointed to enquire the matter. Thereafter recording the statement of opposite party no. 2 and the witnesses, submitted his report that the allegations made by the opposite party no. 2, are not correct and ignoring the report of the Circle Officer dated 17.11.2003, the Under Secretary, Government of Uttar Pradesh, directed to the Director General of Police to transfer the investigation of Case Crime No. 202 of 2003 to CBCID, with immediate effect. In the meantime, the trial Court took cognizance on the chargesheet dated 28 July 2003 submitted by the Investigating Officer and charges were also framed against the opposite party no. 3 vide order dated 24 January 2004.

4. In compliance of the order of the Under Secretary, Government of UP, Nihal Prasad was appointed as Investigating Officer who submitted the final report before the trial Court. A First Information Report was lodged against the applicant under Section 8/20 of the Act, 1985, which was registered as Case Crime No. 67 of 2005. Being aggrieved, the applicant filed a writ petition, namely, 1306 (MB) of 2005 before this Court wherein the arrest of the applicant was stayed vide order dated 2 March 2005. Thereafter, Sarfaraz filed a petition under Section 482 No. 1316 of 2006, challenging the chargesheet dated 6 July 2003 filed against him which was dismissed vide order dated 18 September 2012. Further, the final report which was submitted by the Investigating Officer was rejected by the trial Court on 4 January 2006 on the protest application of the applicant and against the aforesaid order, no appeal or revision has been filed and that has attained finality.

5. Father of accused filed Writ Petition No. 25227 of 2020 before this Court for conducting proper and fair investigation in Case Crime No. 67 of 2005, which was finally disposed of vide order dated 9 July 2021, and a recall application of the order dated 9 July 2021 was moved by the applicant which