Research › Search › Judgment

Delhi High Court · body

2002 DIGILAW 581 (DEL)

ATUL B. KOHLY v. NARCOTICS CONTROL BUREAU

2002-04-23

S.K.AGARWAL

body2002
S. K. Agarwal ( 1 ) BY this petition under Section 439 read with Section 482 Code of Criminal Procedure, 1973 (for short, "cr. P. C. "), petitioner is seeking ball in the case under Sections 21/29/30 of The Narcotic Drugs and psyohotrophic Subsidences Act, 1985 (for short, "ndps act") (Kamal Kant Vs. Vasantan @ Raja and Ors.), pending trial in the court of Special Judge, Delhi. ( 2 ) PROSECUTION allegations in brief are: that they had received information that petitioner was indulging in illegal trade of heroin; the information was also received from the Central and Excise (National investigation Service) through British High Commission, chanakyapuri, New Delhi, showing that he was convicted in italy for sending heroin to England and Holland. Consequently a close surveillance was kept on the activities of the petitioner and his associates. On 13. 8. 88, at about 5:30 p. m. in pursuance of a specific information from the search of the House No. A-6/308c, paschim Vihar, New Delhi, the residence of co-accused vasantan @ Raja, brown powder weighing 1. 810 k. g. was recovered, in the presence of the panch witnesses. On testing it gave positive indication/result of heroin. After taking out samples, the powder was sealed and seized, as per rules. Statement of Vasantan @ Raja under section 67 of the NDPS Act was recorded, which revealed the active involvement of the petitioner and also one k. Balachandran, co-accused, in procuring Heroin from India and transporting it to Italy. Petitioner was summoned. He also confessed his involvement in the said conspiracy. On the above allegations, petitioner was arrested. After completion of investigation complaint against the co-accused and petitioner was filed and the case is pending trial. ( 3 ) I have heard learned counsel for petitioner and have been taken through the record. ( 4 ) LEARNED counsel for petitioner, at the outset argued that the complaint instituted by Kamal Kant, intelligent officer of the Narcotics Control Bureau (for short, "ncb"), is not competent; the same is liable to be quashed and conviction of the petitioner on such a complaint cannot recorded. He argued that the power to file complaints was conferred upon officer, above the rank of Inspector of the Department of Customs, Central Excise, narcotics, Revenue Intelligence, Central Economic, intelligence Bureau and the NCB, by the Government, vide notification No-S0763 (E) dated 27. 9. He argued that the power to file complaints was conferred upon officer, above the rank of Inspector of the Department of Customs, Central Excise, narcotics, Revenue Intelligence, Central Economic, intelligence Bureau and the NCB, by the Government, vide notification No-S0763 (E) dated 27. 9. 89 and that no such power could be conferred by the Central Government. He submits that only Section 83 of the NDPS Act empowered the government to issue such notifications, and it could be done within three years from the date when NDPS Act received assent of the President, which is 16. 9. 85. Thus he argued that three years having been elapsed, since the act received the assent of the President, the power under section 83 could not be exercised by the Central government. Learned counsel for NCB argued to the contrary. ( 5 ) IT is true that Section 83 of the NDPS act, empowered the Central Government for removal of difficulties in giving a fact to the provisions of the act, by issuing such notification, as may be necessary in the official Gazette, which are of course consistent with the scheme and the provisions of the Act and that such a power could not be exercised after the expiry of the period of three years from the date on which the NDPS Act had received assent of the President. But the notification in question was not issued under this section. In order to appreciate the contentions it would be appropriate to quote the notification dated 27. 9. 89 issued by the Central Government, which runs as under:- "s. O. 763 (E):- In exercise of the powers conferred by clause (d) of sub-section (1) of section 36a of the Narcotic Drugs and Psychotropic Substances Act. 1985 (61 of 1985), the Central Government hereby authorises the officers of and above the rank of Inspector in the Departments of customs. Central Excise, Narcotics. Revenue Intelligence, Central Economic intelligence Bureau and the Narcotics control Bureau under the Ministry of finance. Government of India for filing of complaints relating to an offence under the Said Act before Special Courts. sd/- (A. C. Saldanha) additional Secretary to the government of India. (No. 13/89. F. N. O. 664/99/89-Opium) " ( 6 ) THE above notification was issued in exercise of the power conferred by clause (d) of sub-section (1) of Section 36-A of the NDPS Act. sd/- (A. C. Saldanha) additional Secretary to the government of India. (No. 13/89. F. N. O. 664/99/89-Opium) " ( 6 ) THE above notification was issued in exercise of the power conferred by clause (d) of sub-section (1) of Section 36-A of the NDPS Act. By ndps (Amendment) Act, 1989, Section 36 of the Act was substituted. It empowered the Government to constitute special Courts for speedy trial of offences. Section 36a laid down that all offences under the Act, notwithstanding anything contained in Cr. P. C. shall be triable only by special court constituted for the area. Clause (d) of sub-section (1) of Section 36a empowered the special court to take cognizance upon a perusal of the Police report of the facts constituting an offence under this Act or upon the complaint made by an officer of the Central Government or the State Government authorised in this behalf, without the accused being committed to it for trial. It reads as under: " (d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State government authorised in this behalf take cognizance of that offence without the accused being committed to it for trial. ( 7 ) THUS the special court can take cognizance of an offence under the Act, either upon the police report of the facts constituting an offence under this Act or upon a complaint. This Section specifically envisages that the complaint can be filed by an officer duly authorised by the Central Government or the State government in this behalf. The notification dated 2 7/09/1989 quoted above, was issued by the Central government not in exercise of the power conferred under section 83 of the NDPS Act, but in exercise of the power conferred by clause (d) of sub-section (1) of Section 36-A of the Act. In view of the same there is no merit in this contention and the same is rejected. ( 8 ) LEARNED counsel for petitioner next argued that the complainant Kamal Kant was the sub-inspector in Delhi Police and was not above the rank of Inspector in the department of Narcotics under the ministry of Finance. Therefore, he was not competent to file the complaint. ( 8 ) LEARNED counsel for petitioner next argued that the complainant Kamal Kant was the sub-inspector in Delhi Police and was not above the rank of Inspector in the department of Narcotics under the ministry of Finance. Therefore, he was not competent to file the complaint. Nothing has been placed on record to show that what was the rank of Kamal Kant in Delhi police; since when whether he was on deputation in NCB, and what rank he was holding in NCB. These are all questions of fact which cannot be appreciated in the absence of proper pleading and adequate material. Petitioner has not even cared to raise any such plea in the petition. Therefore, this contention is also declined. ( 9 ) LEARNED counsel for petitioner next argued that there is nothing on record against the petitioner. He was arrested only on the basis of statement of co-accused under Section 67 of the NDPS Act and his own confessional statement. He argued that the confessional statements were obtained by the complainant under threat, coercion and pressure. The confessionalstatement was retracted. Confessional statement of the petitioner as well as of the co-accused is not enough in law, to convict the petitioner and he is most likely to be acquitted. Learned counsel for NCB while arguing to contrary further submits that the petitioner was convicted in Italy in connection with a drug case and that the confessional statement are admissible in evidence. ( 10 ) SECTION 67 of the Act empowers the authorised officers referred to in Section 42 of the department of Narcotics, Customs, etc. or the Central government, during the course of any enquiry in connection with the contravention of any provision of this Act, to call for information etc. and to examine any person. As per the settled law officers of the NCB, are not the police officers and the statement of the accused recorded by them is admissible in evidence. Such a confession can be disregarded only if it is shown that the same was caused by inducement, threat or promise etc, by a person in authority, as envisaged under Section 24 of the Evidence Act. This again would be a question of fact which can be decided only after conclusion of the trial. Such a confession can be disregarded only if it is shown that the same was caused by inducement, threat or promise etc, by a person in authority, as envisaged under Section 24 of the Evidence Act. This again would be a question of fact which can be decided only after conclusion of the trial. ( 11 ) LASTLY learned counsel for petitioner argued that the petitioner is in custody for the last about three and a half years; the trial is still at initial stage and petitioner s fundamental right of expeditious trial is being violated and, therefore, petitioner is entitled to be released on bail. Learned counsel for NCB, on the other hand, argued that delay in the trial was not caused on account of their fault; the accused persons are themselves responsible for the delay and they cannot take advantage of their own wrong. Further relying on Supreme Court s decision in State of madhya Pradesh Vs. Kajad, AIR 2001 SC 3317 he argued that in view of Section 37 of the Act, the accused cannot be released on bail, unless there are reasonable grounds to believe that he is not guilty of an offence. In my view, each case depends on its own facts. In this case, nothing has been brought on record wherefrom it can be inferred that the prosecution was responsible for delay of the trial. Therefore, this also cannot help the petitioner. ( 12 ) FOR the foregoing reasons, taking into consideration nature of allegations and the material collected by the prosecution, particularly the fact that the petitioner was earlier allegedly held guilty in italy in a drug case, no case for grant of bail is made out. However, the trial court is directed to expedite the trial and to conclude the prosecution evidence preferably within six months from the next date fixed. ( 13 ) WITH the above directions petition stands disposed of. Any observation made herein shall not affect the merits of the case. Copy of this order be sent to the trial court.