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Madhya Pradesh High Court · body

1998 DIGILAW 655 (MP)

Nand Kishore Tiwari v. State of M. P.

1998-09-03

S.B.SAKRIKAR

body1998
JUDGMENT The applicant has filed this application u/s 482 of CrPC for expunction of certain remarks made against the applicant by the Additional Sessions Judge and the Special Judge Shajapur, Shri M.A. Siddiqui in judgment dated 1.6.1996 rendered by him in ST No. 22/95 (State of M.P. through Police Akodia v. Hajikhan S/o Ali Asgar Khan). Briefly stated the facts of the case are that the applicant on 10.10.1995 was posted as SDO (Police) at District Shajapur. On the aforesaid date, SHO Police Station Akodia received an information from the informer that one Hajikhan S/o Ali Asgar Khan is selling opium in front of the cycle shop and possessed of the opium in his pockets. The information was reduced into writing by the SHO in compliance to the provisions of S. 42(1) of the NDPS Act. It is stated that at the time of receipt of information, the applicant was present at the PS Akodia in connection with some other official work. The SHO apprised the applicant of the information whereupon the applicant directed the SHO to act and investigate the information as the SHO was an Officer competent to investigate the offences under the NDPS Act under section 42 of the said Act. The SHO proceeded at the spot, apprehended the accused and held seizure and search of the contraband article from the possession of the accused and on completion of the investigation, filed challan against the said accused in the trial Court. The Addl. Sessions Judge and Special Judge Shajapur, Shri M.A. Siddiqui, on completion of the trial against the accused, passed the impugned judgment of and conviction against the accused Hajikhan and passed certain strictures against the applicant in para No. 24 to 27, 40 to 43 and 45 of the judgment. According to the applicant the strictures passed by the learned Judge against the applicant are uncalled for in view of the facts of the case and the relevant provisions of NDPS Act. This application has been filed by the applicant for expunction of the said strictures passed by the learned trial Judge against him in the judgment. I have heard Shri S.K. Vyas, learned counsel for applicant and Shri Vivek Saran, learned Panel Lawyer appeared for the non-applicant State. This application has been filed by the applicant for expunction of the said strictures passed by the learned trial Judge against him in the judgment. I have heard Shri S.K. Vyas, learned counsel for applicant and Shri Vivek Saran, learned Panel Lawyer appeared for the non-applicant State. Learned counsel for applicant in his argument referred the relevant provisions of S. 42, 43, 50, 56 and 59 of the NDPS Act, 1985 and contended that in view of the relevant provisions of the Act the strictures made against the applicant are uncalled for and are required to be expuncted to prevent miscarriage of the justice that may occasioned to the applicant in his future career of service. The learned Panel Lawyer for the State submitted that in view of the facts and the circumstances of the case the strictures passed against the applicant were justified. On perusal of the impugned judgment and the strictures passed against the applicant in the relevant paragraph of the judgment, in the light of the relevant provisions of the NDPS Act, I am of the opinion that the strictures made against the applicant are unwarranted. It is not disputed that SHO, PS Akodia Shri Gopalsingh (PW 5) the Police Officer authorised to investigate the offence under the NDPS Act as contemplated u/s 41 and 42 of the said Act. Section 42(1) of the NDPS Act provides that the Police Officer competent to investigate the offences under the NDPS Act, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, between sunrise and sunset, enter into and search any such building, conveyance or place or break open any door and remove any obstacle to such entry. Such Officer is also authorised to seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act. Such Officer is also authorised to seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act. He is also authorised to detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. Section 42(2) of the NDPS Act provided that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Under section 43 of the Act, the power of seizure and arrest in public places are given to the Officer competent and authorised to investigate the offences under the Act. Section 57 of the Act imposes a duty on the police officer investigating the offences to report, arrest and seizure of the contraband articles to his immediate superior official within 48 hours of such arrest or seizure. Section 59 of the NDPS Act provides for the criminal prosecution of any Officer acting under the Act, in case of his failure in duty or his connivance at the contravention of the provisions of this Act. In view of the aforesaid relevant provisions of the NDPS Act, when SHO was competent to conduct search, seizure, arrest and investigate the offences, it was not necessary for the applicant to proceed at the place of the incident and conduct search, seizure and arrest of the accused of the offence under the NDPS Act. No case of failure of the duty or his connivance for contravention of the provisions of the Act are made out against the applicant. In view of the facts and the circumstances of the case on hand and the relevant provisions of the NDPS Act, in my considered opinion, the strictures passed by the learned Judge in paragraphs 26, 27, 41, 43 and 45 of the impugned judgment are uncalled for the irrelevant for the disposal of the ST No. 22/95 registered against accused Hajikhan S/o Ali Asgar Khan. Possibility of miscarriage of justice in the future service career of the applicant cannot be ruled out, if the alleged strictures are not expunged. Possibility of miscarriage of justice in the future service career of the applicant cannot be ruled out, if the alleged strictures are not expunged. In the result, this petition is allowed and in exercise of the powers u/s 482 CrPC the strictures made against the applicant in paragraph No. 26, 27, 41, 43 and 45 are directed to be expunged from the impugned judgment, with no orders as to costs.