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2017 DIGILAW 606 (RAJ)

PARMESHWAR VYAS v. UNION OF INDIA

2017-02-21

PANKAJ BHANDARI

body2017
ORDER : PANKAJ BHANDARI, J. 1. The petitioner has moved this Criminal Misc. Petition under Section 482 Cr.P.C. for quashing of entire proceedings in relation to DRI File No. DRI/MZU/C/INTE-109/2016. 2. It is contended by counsel for the petitioner that no formal FIR was lodged in this case and without lodging of FIR, the DRI Officers were not competent to either arrest the petitioner or record the statement under Section 67 of the Act and seize the contraband or proceed in any manner. It is further contended that the powers of an investigating officer is similar to that of a police officer and the NDPS Act specifically makes a provision that the provisions of the Code of Criminal Procedure would apply, meaning thereby that a formal FIR is required to be lodged before proceedings in the case. 3. Counsel for the petitioner has drawn my attention towards Section 36C of the NDPS Act, which is reproduced hereunder :- "36C. Application of Code of proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor." 4. It is also contended that no offence whatsoever is made out against the present petitioner, in his statement recorded under Section 67 also, there is no mention with regard to the commission of any offence under the NDPS Act. It is contended that the Methaqualone tablets (Mandrax tablets) were not recovered from the premises of the present petitioner who is a Chartered Accountant by profession and who is residing in Mumbai. 5. The other limb of argument of counsel for the petitioner is that the entire proceedings including taking on remand and then sending to judicial custody is de hors the Act and for that reason, the petitioner has prayed that the proceedings with relation to the DRI file as far as the petitioner is concerned be quashed. 5. The other limb of argument of counsel for the petitioner is that the entire proceedings including taking on remand and then sending to judicial custody is de hors the Act and for that reason, the petitioner has prayed that the proceedings with relation to the DRI file as far as the petitioner is concerned be quashed. It is further contended that there is no admission with regard to commission of offence by the present petitioner and it is only on the statement of the co-accused that the Revenue Intelligence Officers are proceeding against the present petitioner. 6. Counsel for the Union of India has opposed the misc. petition. His main contention is that Section 53 of the NDPS Act authorizes the Central Government to invest any officer of the department of Central Excise, Narcotics, Customs, Revenue Intelligence or any class of such officers with the powers of an office-in-charge of a police station for the investigation of the offences under this Act. It is contended that the powers which are vested in Station House Officer with relation to investigation of the offence, in view of Section 53, vest in the Revenue Intelligence Officer. It is further contended that sub-clause (d) of sub-section (1) of Section 36A provides that a Special Court may, upon perusal of police report or upon complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of the offence. 7. It is contended that if the SHO is investigating the matter then a police report is required to be filed but if the investigation is being done by any other officer authorized by the Central or State Government, a complaint is required to be presented before the Special Court and the Special Court on receipt of such complaint is required to take cognizance of the offence, if offence is made out. It is contended that there is no requirement under the law for lodging an FIR. 8. Counsel for Union of India has placed reliance on Kishin S. Loungani v. Union of India in WP(Crl.) No. 333 of 2015 decided by Division Bench of Kerala High Court on 19-12-2016. It is contended that there is no requirement under the law for lodging an FIR. 8. Counsel for Union of India has placed reliance on Kishin S. Loungani v. Union of India in WP(Crl.) No. 333 of 2015 decided by Division Bench of Kerala High Court on 19-12-2016. The Kerala High Court was seized with a case under the Customs Act and the Court after applying the principles of law laid down by the Hon'ble Supreme Court and other High Courts came to the conclusion that registration of FIR is not necessary before arrest, the person under Section 104 of the Customs Act and Sections 154 to 157 of Code of Criminal Procedure do not apply to a case under the Customs Act. 9. Reliance has also been placed on (1990) 2 Supreme Court Cases 409 = 1990 (48) E.L.T. 496 (S.C.); Raj Kumar Karwal v. Union of India and Others, wherein the Hon'ble Apex Court held that the Officers of Department of Revenue Intelligence invested with powers of officer-in-charge of police station under Section 53 are not police officers. The Hon'ble Apex Court was dealing with a case under the NDPS Act, the Court held that Section 36A(d) of the NDPS Act makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authroized officer of the concerned Government. 10. Reliance has also been placed on (2011) 11 Supreme Court Cases 347; Ram Singh v. Central Bureau of Narcotics, wherein the Hon'ble Apex Court held that the officers on whom powers conferred by the Central Government are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and confession made before them is not hit by Sections 25 and 26 of the Evidence Act. 11. Reliance has also been placed on 2005 Cri LJ 3276; Samir Ganguly v. The Intelligence Officer, Narcotic Control Bureau, Eastern Zone Unit, wherein the Calcutta High Court held that the offence under the NDPS Act are triable by Special Court and not by a Judicial Magistrate and for the purpose of the said Act, a Special Court shall be deemed to be a court of Sessions. It was further held that the Special Courts having power under Section 36A(1)(d) of the Act to take cognizance of the offence and there is no need for commitment for Special Court to take cognizance. It was held that Section 36A begins with a non obstante clause which necessarily indicates that the procedure contemplated in the Code is not applicable and the procedure as provided under the NDPS Act would have to be followed. The contention in that case was that Chapter-XIX of the Code of Criminal Procedure is required to be followed was negated by the Calcutta High Court. 12. Arvind Kumar v. Union of India; Criminal Misc. Case No. 39426/2011 decided by the Patna High Court on 16-5-2014 has also been relied upon by counsel for the Union of India wherein the Court observed that the Special Court under the NDPS Act is the court of Sessions and it has to conduct the proceedings under Section 36C of the NDPS Act. It is further contended by counsel for the Union of India that in the statement recorded under Section 67 of the Act, the petitioner as admitted that his premises was being used for manufacture of Methaqualone (Mandrax Tablets), a psychotropic substance banned under the NDPS Act. 13. It is contended by counsel for the Union of India that the petitioner is a business associate of the main accused and is involved in the case where 23,320 kg. of Methaqualone tablets were seized and at this stage when a complaint has not yet been filed, no ground is made out for quashing of proceedings in relation to DRI file. 14. I have considered the rival contentions. 15. The NDPS Act deals with the two situations, one when the offence is investigated by a police officer and the other when offence is investigated by an officer authorized by the Central Government or State Government in accordance with Section 53 of the Act. The Act further provides that if the matter is investigated by a police officer, the Special Court would take cognizance on submission of a police report but if the matter is investigated by an officer authorized by the Central or State Government, the Special Court would take cognizance upon complaint being filed by such officer. The Act further provides that if the matter is investigated by a police officer, the Special Court would take cognizance on submission of a police report but if the matter is investigated by an officer authorized by the Central or State Government, the Special Court would take cognizance upon complaint being filed by such officer. There is no provision whatsoever under the Act directing the officer authorized by the Central or State Government to lodge an FIR, meaning thereby that the officer authorized by the Central or State Government may investigate a matter and after investigation if some case is made out, they can file a complaint straightway before the Special Court. If such complaint discloses commission of offence, the Special Court under Section 36A(1)(d) would take cognizance of the offence. 16. Section 36A makes it abundantly clear that notwithstanding anything contained in the Code of Criminal Procedure, all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area. The question that complaint should have been dealt with in accordance with Section 200 therefore, has no force because in the NDPS Act there is no question of the matter being first produced before a magistrate then the case being committed to the Special Court, since only a Special Court is authorized under the Act to deal with the offences under the NDPS Act where the punishment is for more than three years. 17. Section 51 of the NDPS Act provides that the provision of Code of Criminal Procedure shall apply, insofar as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. This provision by itself clarifies that Code of Criminal Procedure would apply if it is not inconsistent with this Act. But where the provisions of the Act have clarity, the same would apply. Section 42 of the NDPS Act gives power of entry, search, seizure or authorization to the officers mentioned in Section 42 and Section 67 of the NDPS Act also refers to the officers referred to in Section 42, who can call for the information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act. 18. 18. The present case in hand is akin to the case which was before the Kerala High Court in Kishin S. Loungani v. Union of India, wherein the Kerala High Court was dealing with a case under the Customs Act. Section 104 of the Customs Act gives power of arrest to an officer of Customs. The Court held that registration of FIR is not necessary before arrest. Similarly Section 42 of the NDPS Act empowers the officers authorized by the Central or State Government to enter, search, seize and arrest without warrant or authorization. 19. In the present case in hand also, the Act empowers the officers authorized by the Central or State Government to search, seize and arrest a person and there is no mandatory requirement that a FIR is required to be lodged before proceeding to search, seize or arrest. That being so, the objection that the DRI Officers could not investigate and arrest without lodging of the FIR do not have any force. 20. With regard to the contention of counsel for the petitioner that the petitioner is only a Chartered Accountant and even from statement under Section 67, it cannot be inferred that the petitioner has committed any offence under the NDPS Act, suffice to say that the petitioner is a business associate of the main accused, his factory Shrinath Industries was being used for manufacture of psychotropic substance and at this stage, it cannot be inferred that no offence whatsoever is made out against the present petitioner. The matter is still under investigation and the complaint is yet to be filed before the concerned court. Therefore, no case whatsoever is made for quashing the proceedings being conducted in pursuance of the DRI File. 21. Consequently, this Criminal Misc. Petition is dismissed. The stay petition also stands disposed.