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2010 DIGILAW 719 (GAU)

Union of India v. Dipak Kumar Singh

2010-09-14

ANIMA HAZARIKA

body2010
JUDGMENT Smt. Anima Hazarika, J. 1. This revision petition is directed against the order dated 15.12.2009 passed by learned Additional Sessions Judge, Kamrup, Guwahati in Sessions (Special) Case No. 184(K) of 2009 (D.R.I. v. Dipak Kr. Singh and Ors. 2. The brief facts which prompted the Petitioner-complainant to invoke revisional jurisdiction of this Court are as follows: 3. On the basis of specific intelligence report, the officers of the Directorate of Revenue Intelligence ('DRI') intercepted the truck bearing registration No. WB-25B-4251 on 3.6.2009 at about 1.00 a.m. on National High Way 37 at Azara in the district of Kamrup, Assam; however, the said truck in violation of the signal of the DRI Officers to stop, fled away in a high speed. The DRI Officers followed the vehicle and finally intercepted it near Boxirhat Sales Tax Gate on NH-31 at Panbari near the camp of Border Security Force (BSF) in the district of Dhubri, Assam. The opposite party Nos. 1 and 2 who were Handyman (Khalasi) and the Driver respectively of the truck were apprehended. On preliminary interrogation by the DRI Officers, the opposite party Nos. 1 and 2 confessed of having load of Manipuri Ganja concealed under the load of coal on the truck. It was I also revealed by them, as alleged, that the consignment of the Ganja belonged to one Baharuddin @ Bahar. The DRI Officers brought back the loaded truck to Guwahati along with the opposite party Nos. 1 and 2 and recovered 211 packets of Manipuri Ganja weighing 3549 kgs. net under a load of 23 MT coal in presence of the opposite parties and two independent witnesses. Besides the said Manipuri Ganja, the DRI Officers also seized some some documents form the truck vide case No. 01/NARC/GANJA/DRI/GAU-2009-10 dated 4.6.2009. The opposite parties were also arrested on 4.6.2009 at 5 p.m. at Guwahati under Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Narcotic Drugs and Psychotropic Substances Act'). Thereafter, the opposite parties were interrogated and their statements were recorded by the DRI Officers. On 5.6.2009 the opposite parties were produced before the learned Chief Judicial Magistrate, Kamrup at Guwahati and on the basis of prayer of the DRI Officer, they were remanded to judicial custody. 4. Thereafter, the opposite parties were interrogated and their statements were recorded by the DRI Officers. On 5.6.2009 the opposite parties were produced before the learned Chief Judicial Magistrate, Kamrup at Guwahati and on the basis of prayer of the DRI Officer, they were remanded to judicial custody. 4. During the course of further investigation into the case, it came to the notice of the DRI Officer that the opposite parties/accused made some falser/wrong statements in respect of the places of loading and unloading of the ganja in question. Apart from that the other persons who were named by the opposite parties/accused as involved with the crime, have absconded immediately after arrest of the opposite parties as a result of which, it is contended, the investigation of the case has come to a standstill. Therefore, for the purpose of further interrogation, the DRI Officers filed a petition in the court of learned Sessions Judge, Kamrup at Guwahati praying for custody of the opposite parties/accused. However, by order dated 4.11.2009 (Annexure 4) the learned Sessions Judge refused to grant custody of the opposite parties, but allowed the DRI Officer (I/O) to further interrogate them in the jail in presence of the jail officials. Accordingly, the concerned Investigating Officer, DRI again interrogated the opposite parties (accused) in jail which according to the contentions made in the instant petition proved to be futile exercise since they repeated their previous versions which were not consistent with locations, places, etc., in respect of commission of the offence. On the other hand as per statutory requirement, the DRI Officer concerned filed the Final Complaint in the court of the learned Sessions Judge, Kamrup at Guwahati on 27.11.2009 although the investigation was not completed in respect of certain aspects of the crime. In the final complaint it has been stated that the investigation was on till filing of the final complaint and report about further investigation will be submitted in due course by way of filing supplementary report. Subsequently the case was transferred to the court of the learned Additional Sessions Judge, Guwahati which is numbered as Sessions (Special) No. 184/2009. In the final complaint it has been stated that the investigation was on till filing of the final complaint and report about further investigation will be submitted in due course by way of filing supplementary report. Subsequently the case was transferred to the court of the learned Additional Sessions Judge, Guwahati which is numbered as Sessions (Special) No. 184/2009. Since the interrogation carried on in jail as stated above became futile exercise, the Investigating Officer, DRI filed another application on 7.12.2009 in the court of the learned Additional Sessions Judge, Kamrup, Guwahati praying for custody of the opposite parties/accused from judicial custody for 6 (six) hours, i.e., from 10 a.m. to 4 p.m. for verification of certain spots which they referred to in their statements but do not tally in reality. The learned Additional Sessions Judge, Guwahati by his order dated 15.12.2009 (Annexure 7) rejected the prayer so made by the Investigating Officer, DRI. Hence, this revision petition. 5. I have heard Mr. Dhanesh Das, standing counsel, Customs and Central Excise appearing on behalf of the Petitioner. None appeared on behalf of the opposite parties though notices have been duly served on them through jail authority. 6. It has been strenuously argued by Mr. Das, the Learned Counsel for the Petitioner that for completion of investigation within 180 days is a statutory obligation under Section 36(A)(4) of the Narcotic Drugs and Psychotropic Substances Act and therefore, the Investigating Officer of the case had to file the final complaint on 7.12.2009 in spite of the fact that some aspects of the crime remained unearthed due to misleading or wrong statements made by the accused-opposite parties during their interrogation. Learned Counsel further submits that the opposite parties were arrested on 4.6.2009 and they were remanded to the judicial custody on 5.6.2009 on the prayer made by the DRI Officer concerned. The DRI Officer made prayer for judicial custody of the opposite party on the bona fide belief that the facts revealed by the opposite parties at the time of recording their statements were true. The DRI Officer made prayer for judicial custody of the opposite party on the bona fide belief that the facts revealed by the opposite parties at the time of recording their statements were true. Since the statements of the accused/opposite parties proved to be misleading or inconsistent, the learned trial court has committed error in law in refusing custodial interrogation of the opposite parties, inasmuch as, there is no bar in Section 167 of the Code of Criminal Procedure, 1973 ('Code') in granting or allowing custodial interrogation after submissions/or filing the final complaint. It has also been argued that the main culprits behind the crime are going to be scot free due to the impugned order dated 15; 12.2009 (Annexure 7). 7. I have heard, the Learned Counsel appearing for the Petitioner at length. Also perused the materials available on record. 8. Upon hearing the Learned Counsel and perusal of the materials on record now the question arises to be answered by this Court is as to whether custodial interrogation is permissible under the law after submission of final complaint or charge sheet under Section 173 of the Code? 9. From the provisions laid down in the code, it appears that under three different sections of the Code, the court can exercise the power of remand of an accused to custody. Section 167(2) of the Code empowers the Magistrates to remand an accused to custody during the course of investigation, while Section 209 empowers the Magistrates to pass an order of remand to custody in respect of a case exclusively triable by court of Sessions for which he has to commit the accused to the Court of Sessions and Section 309 of the Code empowers the court to remand an accused to custody during inquiry or trial. 10. Admittedly in the instant case the final complaint has been submitted and the case is now pending trial. In other words, the investigation of the case is completed so far the accused/opposite parties are concerned. Though the Petitioner complainant has stated in the final form (vide Annexure 5) that report in respect of investigation into some facts of the case from different offices of DRI were awaited at the time of filing final complaint, yet the scope of remand under Section167(2), Cr.PC does not arise in this case. Though the Petitioner complainant has stated in the final form (vide Annexure 5) that report in respect of investigation into some facts of the case from different offices of DRI were awaited at the time of filing final complaint, yet the scope of remand under Section167(2), Cr.PC does not arise in this case. While examining the provisions of Sections 209 and 309of the Code, I find that the said sections of law do not contemplate any provision for remanding an accused from judicial custody to the custody of Investigating Officer/or authority for further investigation of the case. Apart from that it is admitted position in the case in hand that the Petitioner-complainant itself prayed for remand of the accused/opposite parties to judicial custody at the time of producing them before the learned CJM, Kamrup (vide Annexure 3). Therefore, the contention made by the Learned Counsel for the Petitioner that there is ho bar in law to remand an accused from judicial custody to the custody of Investigating Authority cannot be a good ground to permit further custodial interrogation of the accused/opposite parties, more so, when the Petitioner-complainant was extended an opportunity for further interrogation of the accused/opposite parties in jail by order dated 4.11.2009 (vide Annexure 4) and the final complaint (Annexure 5) was filed thereafter on 27.11.2009. 11. Having regard to the foregoing discussions, I hold that no illegality has been committed by the learned court below in passing the impugned order date 15.12.2009 (Annexure 7). 12. The instant revision petition is without merit and, hence, the same is dismissed. No cost. Petition dismissed.