Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 172 (KER)

Kader Alias Kader Babu v. State Of Kerala

2001-03-21

J.B.KOSHY, R.RAJENDRA BABU

body2001
Judgment :- KOSHY, J. This Crl. Appeal was referred to the Division Bench by learned single Judge doubting the decision of another single Bench decision of this Court in Naushad v. State of Kerala, (2000) 1 Ker LT 785 : (2000 Cri LJ 2870). There it was held by the learned single Judge of this Court that when complainant and investigating officer are one and the same, it cannot be said to be fair in a proceeding under Narcotic Drugs and Psychotropic Substances Act, 1985 (in short N.D.P.S. Act) and the learned Judge made the following observations in the reference order : "It is not unusual in this state that in N.D.P.S. 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 invariably 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 Investigating Officer who files a complaint before the Court should be a higher official than the person who detects the crime and whether detecting officer and the Investigating Officer can one and the same. While deciding Naushad's case, learned single Judge referred to his own earlier judgment in Xavier v. State of Kerala, (1998) 1 Ker LT 686 : (1998 Cri LJ 3182), where the learned Judge held as follows : "In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous informations recorded under Ss. 154 or 155, Cr. P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161, Cr. P.C. enjoined in Ss. 145 and 157 of the Indian Evidence Act and proviso of S. 162, Cr. 154 or 155, Cr. P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161, Cr. P.C. enjoined in Ss. 145 and 157 of the Indian Evidence Act and proviso of S. 162, Cr. P.C. In the instant case, before me, PW 1 is an Assistant Sub-Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub-Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub-Inspector of Police or any other Police Officer above the rank of PW 1. In the instant case, thus an incurable infirmity and flaw have been committed 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 that the above decision was rendered in a case where accused was found guilty under Section 51(a) of the Kerala Police Act. There is no question of any detailed investigation or recording of information regarding a complaint under Section 161 and therefore we are of the opinion that the decision reported in Xavier's case (1998 Cri LJ 3182) (supra) with respect to process under Section 51(a) of the Kerala Police Act does not lay down correct law as there is no question of separate Investigating Officer in such cases. In any event, the above is not a case under the N.D.P.S. Act and the decision is not applicable in a case under N.D.P.S. Act. Naushad's case (supra) is under the N.D.P.S. Act itself. In that case the learned Judge referred a decision of the Rajasthan High Court in Gyan Chand v. State of Rajasthan, 1993 Cri LJ 3716. That was a case where a Circle Inspector of Police seized some opium from an accused and continued the investigation himself. It was held by the learned single Judge on the facts of that case that his proceeding with the search and effecting recovery and continuing the investigation militate against the basic tenets of jurisprudence and fair investigation. That was a case where a Circle Inspector of Police seized some opium from an accused and continued the investigation himself. It was held by the learned single Judge on the facts of that case that his proceeding with the search and effecting recovery and continuing the investigation militate against the basic tenets of jurisprudence and fair investigation. It was, however, mentioned further that the status of the Investigating Officer could not be placed on any pedestal higher than that of a complainant and the complainant himself cannot be the sole agency of the investigation. Decision of the Supreme Court in Megha Singh v. State of Haryana, AIR 1995 SC 2339 : (1995 Cri LJ 3988) also was referred by the learned Judge in Naushad's case (2000 Cri LJ 2870). That was not a case under the N.D.P.S. Act. In that case a Head Constable recovered a pistol and cartridges and with reference to the said procedure, the Supreme Court held as follows : "After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. P.W. 3, Siri Chand, Head Constable arrested the accused and on search being 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 fair and impartial investigation." In that case Head Constable who arrested the accused and conducted search recovered a pistol and cartridges, filed F.I.R. and in the said case he carried on with the investigation and examined the witnesses under S. 161, Cr. P.C. Apex Court held that such practice should not be resorted to and the Court found that prejudice was actually caused as the same Head Constable detected, investigated and then filed the complaint. Section 51 of the N.D.P.S. Act provides as follows : "51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act." The Act also gives power to authorised officers for entry, search, seizure and arrest as can be seen from S. 41 to S. 43 and S. 53 gives power to the Central Government as well as the State Government by notification to invest any officer of the department of Central Excise, Narcotics, Customs, Revenue Intelligence or Border Security 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 the Act and as per the notification of the State Government Sub-Inspector and above rank are designated as authorised officers under S. 41(2) as well as under S. 53(2). In State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702) 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 follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. 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 follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act." After the above decision Rajasthan High Court in Pancha Ram v. State of Rajasthan, 1995 Cri LJ 1025 also held that the officer who has seized the article under the NDPS Act can proceed with the investigation also and it is not necessary that other officer should investigate and no illegality committed. Rajasthan High Court held as follows : "The position of law, which emerges from the judgment of Balbir Singh's case is that it is only the empowered officer who can conduct the investigation and if an empowered officer comes across a person being in possession of the narcotic drug or psychotropic substance and had made the search, seizure and arrested the accused under the Act then he can proceed with the investigation. It is not necessary, as per the view taken by the Hon'ble Supreme Court that it is only the other officer who should proceed with the investigation and the person, who has made the search or seized the article or arrested the accused or lodged the report, becomes disentitled to carry on the further investigation. The officer who has seized the article, arrested the accused and lodged the report, can be said to be a 'complainant' only in a technical sense in view of the Explanation appended to sub-section (d) of S. 2 of the Act, which defines the word '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 SC 172 : (1999 Cri LJ 3672) 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. By a Constitution Bench of Supreme Court in State of Punjab v. Baldev Singh (1999) 6 SC 172 : (1999 Cri LJ 3672) 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 affecting 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 being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the Investigating Officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr. P.C. in respect of search and seizure and particularly those of Ss. 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the Courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view." Another decision referred to us is the decision in Crl. A. No. 944 of 1998 reported in Johnson v. State of Kerala (2000) 1 Ker LT (SN) 4 (Case No. 5). The Court found violation of S. 42(2) in that particular case. There it was also observed that investigation was conducted by an officer subordinate to the detecting officer and there was a finding that prejudice has been caused. We are not considering a case where investigation was conducted by an officer subordinate to the detecting officer. The Court found violation of S. 42(2) in that particular case. There it was also observed that investigation was conducted by an officer subordinate to the detecting officer and there was a finding that prejudice has been caused. We are not considering a case where investigation was conducted by an officer subordinate to the detecting officer. Unlike usual cases under the Criminal Procedure Code, in cases 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 rank 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 Ker LT 785 : (2000 Cri LJ 2870) to the contrary is overruled. Since the term of imprisonment as imposed by the lower Court is already over, no further orders are necessary in this criminal appeal. The criminal appeal is disposed of accordingly. Order accordingly.