TMI Blog2001 (3) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... d the learned Judge made the following observations in the reference order: It is not unusual in this State that in NDPS 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 invariable 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 Investigation Officer who file a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted 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 the above decision was rendered in a case where accused was found guilty under S. 51(a) of the Kerala Police Act. There is no question of any detailed investigation or recording of information regarding a complaint under S. 161 and therefore we are of the opinion that the decision reported in Xavier's case (supra) with respect to process under S. 51(a) of the Kerala Police Act does not la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW.3, Siri chand, head Constable arrested the accused and on search begin conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Punjab v. Balbir Singh (AIR 1994 SC 1872) the Supreme Court observed as follows: Consequently the provisions of the Cr.P.C. shall be applicable in so far as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrests made under the Act. But when a Police Officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follows thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;complainant'. We are perfectly in agreement with the observations of the Rajasthan High Court. By a Constitution Bench of Supreme Court in State of Punjab v. Baldev Singh (1999 (6) SCC 172) confirmed the dictum laid down in Balbir Singh's case (supra). In paragraph 14 of the above decision it is held as follows: 14. The provisions of Ss. 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person begin in possession of a narcotic drug or the psych ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same ranks as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under N.D.P.S. act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad v. State of Kerala 2000 (1) KLT 785 to the contrary is overruled. Since the term of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
