JUDGEMENT - V.R. DATAR, J. :---Rule. By consent rule made returnable forthwith. 2.Heard Shri Mundargi for the petitioner and Shri Nalavade, A.P.P. for the respondent-State. 3.This revision application is directed against the order dated 1st February 1996, passed by the Additional Sessions Judge Special Judge (Narcotics), Bombay, below Misc. Application No. 426 of 1995 in NDPS Special Case No. 170 of 1993, rejecting thereby prayer made by the petitioner for his discharge under section 227 of the Criminal Procedure Code. 4.The petitioner - Bashist Narayan Singh was working as Assistant Collector of Customs and Central Excise, Division G-1, Bombay, at the relevant time. He is accused No. 7 in NDPS Special Case No. 170 of 1993, arising out of C.R. No. 38 of 1992, registered at Narcotic Cell, C.B., C.I.D., Bombay, on the complaint of Shri Nitin V. Yadav, Police Inspector attached to this cell. The offences under sections 8(c) r/w 21 and 29 of the N.D.P.s. Act are alleged to be committed by the petitioner. In that behalf, case of the prosecution in short is as follows. 2.On 2nd September 1993, upon reliable information a jeep bearing No. MH-12-0538, which was standing in front of Jewel of India Restaurant, Nehru Planetorium Centre, Worli, Bombay, was seized by the Police, and on search 150Kg. of Mandrax tablets were recovered. Further investigation in that behalf resulted in arrest of accused No. 1- Milind Chalke and accused No. 2.- Dhananjay Sudhar Jadhav, his brother-in-law. Further, 12,500 Kgs. of Mandrax tablets were recovered. Then, on 4th September 1993, on further information, at the instance of accused No. 1, Chemical Factory of accused No. 1 was searched and 1600 Kgs. of Methaqualone powder and 110 Kgs. of Mandrax tablets and machinery were recovered by the police. It was found that these goods were supplied by accused No. 8 and his nephew-accused No. 3 who came to be arrested on 7th September 1993. On 18th September 1993, at the instance of accused No. 3 100 Kg. of Metha- qualone powder was seized from the premises of accused Nos. 4 and 5 who also came to be arrested from the said premises. It transpired that accused Nos. 4, 5 and 6 left the said jeep in front of Jewel of India Restaurant, Nehru Planetorium Centre, Worli. of Metha- qualone powder was seized from the premises of accused Nos. 4 and 5 who also came to be arrested from the said premises. It transpired that accused Nos. 4, 5 and 6 left the said jeep in front of Jewel of India Restaurant, Nehru Planetorium Centre, Worli. From the interrogation of accused No. 1 - Milind Chalke, it transpired that sometime in September 1992, the petitioner herein helped accused No. 1 in getting the said Mandrax tablets tested from a private laboratory. For that purpose, the petitioner wrote letter dated 28-9-1992 by using his official position, with a view to help accused No. 1 in establishing a Chemical Factory for the purpose of manufacturing Mandrax tablets. That is how, the petitioner is alleged to have abetted accused No. 1 in commission of offences under the NDPS Act. As such, petitioner came to be arrested on 12-10-1993. The petitioner then applied to the Special Judge for grant of bail by preferring Criminal Application No. 315/93 and it was rejected on 17-12-1993. He then moved the High Court by filing Cri. Application No. 377/94 and the High Court granted bail in his favour. It is the case of the petitioner that time and again he has insisted that in the course of his duty as Assistant Collector of Customs Central Excise, he has acted on secret intelligence/information to gather specific information and to satisfy himself about the genuineness of the intelligence/information which he received from accused No. 1- Chalke, who had brought the three tablets to him sometime in September 1992. Before acting on such intelligence, petitioner thought it proper to get tablets tested as in the past tablets smuggled wore found not genuine. Therefore, in his official capacity, petitioner opened a file and with his confidential letter sent the tablets to a private laboratory for testing. Since the information/intelligence was secret, in order to check the authenticity, the work was carried out secretly but confidential record was maintained properly. In fact, he had apprised senior officer like the Additional Director General of D.R.I. After his release on bail, the State applied for cancellation of the bail, by filing Criminal Application No. 2466 of 1994. Since the information/intelligence was secret, in order to check the authenticity, the work was carried out secretly but confidential record was maintained properly. In fact, he had apprised senior officer like the Additional Director General of D.R.I. After his release on bail, the State applied for cancellation of the bail, by filing Criminal Application No. 2466 of 1994. In that application petitioner not only filed his affidavit-in-reply, but insisted that the then Investigating Officer be directed to collect relevant records from his office to support his stand that he is innocent and falsely implicated in this case. It appears that further investigation was carried out by Shri Wahule, Police Inspector, who, during the course of it, recovered secret file maintained by the office and also recorded statements of some officials from Central Excise Customs Department. As such, report of further investigation was submitted by the Police Officer Wahule before the Special Judge. On the basis of the aforesaid circumstances, petitioner filed Misc. Application No. 426/95 in NDPS Spl. Case No. 170/ 93, for discharge under section 227 of the Criminal Procedure Code. 3.This application was opposed on behalf of the prosecution and on consideration of the submissions of both the sides, and documents on record, the learned Judge came to the conclusion that further investigation carried out by Shri Wahule, Police Inspector was an afterthought attempt to save the petitioner and this plea is raised by the petitioner for the first time after his release on bail. The record suitable to the plea of the petitioner has been created by the Investigating Officer. Shri Wahule with the help of officials of the Customs Excise and, therefore, further investigation was suspicious. Not only that, but formal permission of the Court was not at all obtained and the Court was not made aware of such further investigation being carried out. It was also found that the material collected in the earlier investigation was sufficient to sustain the charge for the offences under section 8(c) read with section 21 and 29 of the NDPS Act against the petitioner and therefore, the learned Judge rejected the application for discharge made by the petitioner and this order has been challenged in the present Revision Application. 4.Shri Mundargi for the petitioner submitted that the further investigation carried out by Wahule fully supports the contention of the petitioner that he was acting in the official capacity and working with secret information. Not only that, but the secret file consisting of office copy of the letter and note prepared by the petitioner has been found by the Investigating Officer making further investigation. This would clearly exonerate the petitioner from the charge levelled against him. Shri Mundargi further submitted that even excluding the papers of further investigation , from consideration what at the most comes is that on 28-9-1992, accused No. 1 Milind Chalke made over 3 tablets to the petitioner to send them with his official letter to the private laboratory and no analysis could be carried out for want of sufficient quantity. As such, there is nothing on record to show that those were Mandrax tablets and, therefore, petitioner used his official position to help accused No. 1. Shri Mundargi pointed out that from the papers of investigation, it would be apparent that accused No. 1. Chalke secured machinery and premises for the factory in January 1993 and thereafter manufacturing of Mandrax tablets by securing Menthaqualens powder and other material started. There is nothing to show that in September 1992, Milind Chalke was having such business and petitioner in any way helped accused No. 1 in such business. Thus, taking the record of investigation as it is, no charge for the alleged offences can be sustained and the petitioner is entitled to discharge. 5.Shri Nalavade, learned Addl. Public Prosecutor for the Respondent-State supported the order of the lower Court. It was pointed out by him that the very witnesses whose statements have been recorded in the initial investigation have gone back upon their statements in the subsequent statements recorded during further investigation and this would go to show that further investigation was carried out to suit the purpose of the petitioner. The alleged confidential file maintained by the petitioner could be created at any time and, therefore, order of the trial Court is justified and no interference is called for. The alleged confidential file maintained by the petitioner could be created at any time and, therefore, order of the trial Court is justified and no interference is called for. 7.So far as contention of Shri Mundargi that no permission of the Court for further investigation under section 173(8) of the Criminal Procedure Code is necessary is concerned, though appears to be right, having regard to the provisions of section 173 of the Criminal Procedure Code, but as observed by the Supreme Court in the case of (Ram Lal Narang v. State, (Delhi Admn.)1, A.I.R. 1979 S.C. 1791, the Police should express their regard and respect for the Court by seeking its formal permission to make further investigation., The learned Judge has also relied upon this decision. It is not disputed that no such formal permission was obtained by Police Inspector Wahule before making further investigation in the matter. Shri Mundargi tried to show that the observation of the learned Judge of the trial Court, when petitioner made grievance about processing of the secret intelligence/ information, is erroneous inasmuch as the petitioner raised his grievance in his application for grant of bail before the Special Judge, Sessions Court and repeated the same on numerous occasions in subsequent petitions. Thus, observation of the learned Judge that such a grievance made by the petitioner for the first time after his release on bail, is not at all correct. In that behalf, Shri Mundargi has taken me through copies of such applications. However, it is clear from the record that further investigation started only after filing of discharge application by the petitioner on 6-8-1995. In paragraph 10 of the his judgment, the learned Judge has given reasons as to why papers of further investigation made by P.I.Wahule, could not be relied upon to discharge the petitioner as claimed. It will not be proper at this stage to express any opinion about that aspect of the matter. However, I feel, after going through the judgment of the trial Court, that reasons given by him for discarding the papers of further investigation cannot be brushed aside lightly. 8.Further, in paragraphs 12 to 16 of the judgment, the learned Judge has indicated as to the scope of enquiry for the purpose of discharging the accused. However, I feel, after going through the judgment of the trial Court, that reasons given by him for discarding the papers of further investigation cannot be brushed aside lightly. 8.Further, in paragraphs 12 to 16 of the judgment, the learned Judge has indicated as to the scope of enquiry for the purpose of discharging the accused. In regard to grounds for putting the accused for trial, the Court has to consider whether evidenciary material on record would reasonably connect the accused with crime and not whether conviction is possible or not. Further, the learned Judge has indicated how charge of conspiracy under section 29 of the NDPS Act can be prima facie supported by material on record from the first investigation. As such, I do not feel that on the basis of record of further investigation the petitioner could successfully claim discharge. 9.Shri Mundargi then submitted that even excluding papers of further investigation from consideration and relying upon entire record of initial investigation ,at the most it comes to this that, accused No. 1 Milind Chalke approached the petitioner on 28-9-1992 with 3 tablets which are not proved to be Mandrax tablets and the petitioner sent them to a private laboratory for the purpose of analysis. These tablets however, could not be analysed for want of sufficiency of the samples. In the circumstances, submits Shri Mundargi, there is nothing on record to show that those were Mandrax tablets. Further, it was pointed out that charge against accused Nos. 1 2 and other accused regarding the manufacture of Mandrax tablets and possession of the material for that purpose rests upon the fact of securing machinery, premises and material since 1993 January, and there is nothing to indicate that Milind Chalke was concerned with the business of manufacturing Mandrax tablets before January 1993 or that the petitioner in any way assisted him in doing so. Shri Mundargi also submitted that it is not clarified as to how analysis of 3 tablets sent by the petitioner with his letter through accused No. 1- Chalke, would substantiate the fact that the petitioner helped accused No. 1 for commencing his business of manufacturing Mandrax tablets in future. Shri Mundargi also submitted that it is not clarified as to how analysis of 3 tablets sent by the petitioner with his letter through accused No. 1- Chalke, would substantiate the fact that the petitioner helped accused No. 1 for commencing his business of manufacturing Mandrax tablets in future. So far as this aspect of the matter is concerned, though letter sent by the petitioner does not mention that tablets were of Mandrax, yet, the initial investigation has proceeded on that basis and charge for offences under section 8(c) read with sections 21 29 of the N.D.P.S. Act is made against the petitioner. There are sufficient and cogent reasons to hold that the tablets were suspected to be Mandrax tablets. Even the petitioner sent those tablets under his confidential letter for the analysis. Whether those tablets were Mandrax tablets or not has to be decided in the trial. In this behalf, section 35 of the NDPS Act is also relevant and the trial Court has relied upon the same, which reads thus:- "Sec. 35- Presumption of culpable mental state - (1) In any prosecution for an offence under this Act which requires an culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as offence in that prosecution. Explanation - In this section 'Culpable Mental State' includes intention motive, knowledge of a fact and belief in or reason to believe a fact. (2) for the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." Having regard to these provisions, it would be seen that claim made by the petitioner shall be a defence to prove fact that he had no such mental state with respect to the act charged as offence in the prosecution. The explanation shows that culpable mental state includes intention, motive and knowledge of a fact and belief in or reason to believe the fact. The explanation shows that culpable mental state includes intention, motive and knowledge of a fact and belief in or reason to believe the fact. Having regard to this provision, I find from the letter written by the petitioner to a private laboratory sending therewith three tablets given by accused No. 1- Milind Chalke, being messenger, with whom these tablets are allegedly sent, it would be for the petitioner to prove at the trial by way of defence that he had no intention motive or knowledge in regard to those tablets being of Mandrax. Therefore, I feel, that this is not a fit case where petitioner could claim discharge on the record as it stands and, therefore, the learned trial Judge was justified in rejecting the application. I do not see any reason to interfere with this order of the learned Judge. Consequently, this Revision Application will have to be dismissed and rule will have to be discharged. Accordingly, revision application is dismissed and the rule is discharged. The Special Judge, NDPS Court, Bombay, is directed to expedite trial against the petitioner. Application dismissed. *****