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2021 DIGILAW 704 (KAR)

Fahim, S/o. Fizal K. v. Union of India

2021-06-23

SREENIVAS HARISH KUMAR

body2021
ORDER : The facts in brief are that on 30.7.2020, the Intelligence Officer of Narcotic Control Bureau (NCB), the respondent herein, received information that the Foreign Post Office, Bengaluru, had received a parcel which was addressed to one Kartik Pramod. The information given to the Intelligence Officer was that the parcel contained MDMA tablets. The officers of the NCB went to the Post Office and seized the parcel by writing a panchanama on 30.7.2020. When they opened the parcel, they found it containing 142 grams of MDMA. They tracked the addressee and came to know that the petitioner was the real receiver of the parcel. The petitioner is a student of engineering at NITTE, Karkala. He was not available as the college had been closed due to Covid-19. On 8.8.2020, the petitioner came to college to attend the examination which was scheduled to commence from 16.8.2020. The NCB officers questioned the petitioner about the parcel and he denied his knowledge about it. Thereafter, the NCB officers interrogated accused 2 to 4. Since they found inconsistency in their statements, they subjected the petitioner again for interrogation on 23.9.2020. Thereafter he was arrested and produced before the court with remand application on 25.9.2020. 2. After remand of the petitioner to judicial custody on 25.9.2020, the NCB officers had to file the charge sheet within 180 days, but it was not filed till 24.3.2021. Therefore, the petitioner got filed an application under section 167(2) of Cr.P.C. Later on the petitioner came to know that the respondent, instead of filing a charge sheet under section 173(2) of Cr.P.C, had filed a complaint before the Special Court on 19.3.2021. The Special Court took cognizance of the offences alleged in the complaint by making an endorsement on the complaint itself as “cognizance taken”. After taking cognizance, the Special Court passed an order dated 24.3.2021 issuing process to the petitioner and on 7.4.2021, passed another order rejecting his application filed under section 167(2) of Cr.P.C. Therefore, the petitioner has filed this Writ Petition under Articles 226 and 227 of the Constitution of India read with section 482 of Cr.P.C for quashing the order of taking cognizance dated 19.3.2021, the order of issuing process dated 24.3.2021 and rejecting his application under section 167(2) of Cr.P.C on 7.4.2021. 3. 3. I have heard the arguments of Sri Hashmath Pasha, learned senior counsel for the petitioner and Sri Madhukar Deshpande, learned standing counsel for the NCB. 4. The main thrust of argument of Sri Hashmath Pasha was that the petitioner was remanded to judicial custody on 24.9.2020, and 180 days, the time specified for filing the charge sheet according to section 36A(4) of NDPS Act expired on 23.3.2021. No charge sheet was filed within 180 days. Therefore the petitioner was entitled to be released on bail according to section 167(2) of Cr.P.C. It is an indefeasible right of the accused to be released on bail if charge sheet is not filed within the specified time. Surprisingly, the petitioner came to know that the respondent had filed a complaint before the Special Court on 19.3.2021. In fact the petitioner got filed an application under section 167(2) of Cr.P.C., but the learned Special Judge rejected the said application as according to him, complaint had been filed on 19.3.2021 within the period of 180 days from the date of remand of the petitioner to the judicial custody. 4.1. Sri Hashmath Pasha elaborated his argument by submitting that the respondent is invested with the powers of an officer in charge of a police station for the purpose of investigation of the offences under the NDPS Act. For this reason, the respondent, given the powers of station house officer for the purpose of investigation, is a police officer for all practical purposes and he should have filed charge sheet according to section 173(2) of Cr.P.C, he had no authority to make a complaint as has been done in this case. The procedure adopted by the respondent was illegal. He referred to the judgment of the Supreme Court in the case of TOFAN SINGH vs STATE OF TAMILNADU [2020 SCC ONLINE SC 882] to garner support for his argument that the respondent is a police officer and should have filed charge sheet instead of complaint. 4.2. He further argued that not only an officer of NCB, but also certain officers of other departments have been invested with the powers of investigation of crimes envisaged under NDPS Act. Narcotic Control Bureau has been established primarily for the purpose of preventing the offences under the NDPS Act from being committed and investigation of those offences if committed. 4.2. He further argued that not only an officer of NCB, but also certain officers of other departments have been invested with the powers of investigation of crimes envisaged under NDPS Act. Narcotic Control Bureau has been established primarily for the purpose of preventing the offences under the NDPS Act from being committed and investigation of those offences if committed. But, the officers of other departments as forthcoming in sections 41 and 42 of the NDPS Act, are not primarily meant for the prevention and detection of the crimes under NDPS Act. It is an additional duty conferred on them. In this view, the NCB officers stand on a different footing, they are police officers for all practical purposes and cannot file a complaint whereas it is permitted for the officers of other departments. He submitted that section 36A(1)(d) of NDPS Act is to be construed in this way and this aspect has been discussed in Tofan Singh case (supra) though the primary issue discussed therein was the admissibility of statement recorded under section 67 of the NDPS Act by an officer conferred with powers of investigation in the background of the bar contained under section 25 of the Evidence Act. 4.3. It was his further argument that though the Central Government issued a notification on 27th September 1989 enabling the officers conferred with powers of SHO under section 53 of the NDPS Act to file complaint under section 36A(1)(d), this notification cannot be understood in such a way as to say that it also enables an NCB officer to file a complaint. He submitted that in Tofan Singh’s case, the earlier judgments of the Supreme Court in the cases of RAJKUMAR KARWAL vs UNION OF INDIA AND OTHERS [ (1990) 2 SCC 409 ] and STATE OF PUNJAB vs BARKAT RAM [ AIR 1962 SC 276 ] have been referred to and it was held ultimately by the Supreme Court that the principle laid down in Rajkumar Karwal was not a good law. The Supreme Court has made the position of law very clear in Tofan Singh’s case holding that NCB officer is as good as a regular police officer and he has to file charge sheet only. Since charge sheet was not filed in this case within 180 days, the petitioner is required to be released on bail. The Supreme Court has made the position of law very clear in Tofan Singh’s case holding that NCB officer is as good as a regular police officer and he has to file charge sheet only. Since charge sheet was not filed in this case within 180 days, the petitioner is required to be released on bail. While arguing, Sri Hashmath Pasha referred at length to various paragraphs in Tofan Singh’s case judgment to which I will refer in the course of discussion. He has also placed reliance on some other judgments which will be referred to later. 5. Sri Madhukar Deshpande firstly referred to section 4 of Cr.P.C. to submit that according to its sub-section (1), the offences under the IPC are to be investigated, enquired into and tried according to the provisions of Cr.P.C, but in regard to offences under any other law, investigation, or trial should be conducted according to Cr.P.C. and if the other law in force regulates the manner or place of investigation, enquiry or trial, the procedure prescribed there shall be followed. He also referred to section 5 of Cr.P.C to argue that the provisions of Cr.P.C., in the absence of specific provision to the contrary, shall not affect special or local law which is in force or any special jurisdiction or power conferred, or special form of procedure prescribed by any other law for the time being in force. Placing reliance on these two sections, he developed his argument in such a way that since in the NDPS Act, a special procedure has been prescribed, the powers of the NCB officers must be construed in the light of the provisions of NDPS Act and not Cr.P.C. Then he referred to the preamble of the NDPS Act to highlight the reason for conferring powers on the officers of other departments; he submitted that it was with a view to combating the drug abuse effectively and in this view Narcotic Control Bureau was established according to section 4 of the NDPS Act. Narcotic Control Bureau is a separate department and is a statutory authority. Narcotic Control Bureau is a separate department and is a statutory authority. It has been very clearly held by the Supreme Court in the case of State Through Narcotics Control Bureau vs Kulwant Singh [ AIR 2003 SC 1599 ] that NCB is like any other department and therefore the officer of the NCB is authorized to conduct search and seize the contraband substance in accordance with sections 41 and 42 of the NDPS Act. Under the scheme of the NDPS Act, the officers of other departments namely customs, excise, narcotics, paramilitary forces, revenue are empowered to take action as much as police officers can. If the action is taken by a police officer, he has to file charge sheet according to section 173(2) of Cr.P.C and if the officers of other departments conduct investigation, they cannot file charge sheet and that they have to file a complaint in accordance with section 36A(1)(d) of NDPS Act. Here lies the distinction, he argued. 5.1. Referring to section 53 of the NDPS Act, he argued that, what the section envisages is, conferment of powers of SHO on the officers of other departments. That means they have been invested with the powers of SHO only for the purpose of investigation, but they cannot file charge sheet. Merely for the reason that power of investigation has been conferred on them, they cannot be treated as regular police officers. He also referred to the judgment of the Supreme Court in Tofan Singh to argue that actually what is discussed in this case is whether statement recorded under section 67 of the NDPS Act can be said to be hit by section 25 of the Indian Evidence Act because of conferment of the powers of a police officer on the officers of some other departments. It is held in the said judgment that the statement made under section 67 is nothing but a confession statement of an accused which is inadmissible in evidence according to section 25 of the Indian Evidence Act. Though it is held in the said judgment that the officers of other departments are treated as police officers, it is for the limited purpose of holding investigation only; this will not permit them to file a charge sheet. 5.2. Though it is held in the said judgment that the officers of other departments are treated as police officers, it is for the limited purpose of holding investigation only; this will not permit them to file a charge sheet. 5.2. He went through various paragraphs in Tofan Singh to fortify his submission that nowhere in the said judgment it is held that the NCB officer can file charge sheet. Referring to section 36C of the NDPS Act he submitted that even on a complaint, the Special Judge has to hold trial following the sessions trial procedure. The complaint can be directly filed before the Special Court which can take cognizance of the offence without the accused being committed to it. If all these provisions are seen, it can be said that a special procedure has been provided for investigation and trial of offences under NDPS Act, and Cr.P.C. is not applicable so far as these aspects are concerned though it is applicable for some other aspects in accordance with section 36C of NDPS Act. Therefore, it was his argument that the complaint made by the respondent on 19.3.2021 cannot be said to be contrary to law. Sri Madhukar Deshpande submitted further that very recently, a coordinate bench of this court in the case of Rijesh Ravindran vs Union of India (Criminal Revision Petition 321/2021) has held that an officer of NCB has to file complaint only. Since complaint was made within 180 days in this case, the petitioner cannot claim to be released on bail. 6. Sri Hashmath Pasha replied that the officers of other departments have been given full powers of a police officer, he referred to section 52(3) of the NDPS Act and submitted that those officers including an officer of NCB could produce the seized articles before the Magistrate for the purpose of obtaining orders for their disposal. This shows that the officers of NCB and other departments as mentioned in sections 41 and 42 can act independently for conducting investigation and filing final report. There cannot be any distinction between a regular police officer and an officer of NCB so far as investigation and filing of final report is concerned. He referred to paragraph 148 of Tofan Singh to argue that the whole position is made clear there. There cannot be any distinction between a regular police officer and an officer of NCB so far as investigation and filing of final report is concerned. He referred to paragraph 148 of Tofan Singh to argue that the whole position is made clear there. He also referred to section 55 of the Excise Act to argue that the word “deemed” is used in the said section, such a deeming provision is not there in the NDPS Act. In this regard he referred to the judgment of this court in the case of State of Karnataka vs Guruva Pujari [1975 Crl.L.J 1708]. 6.1. Referring to recent judgment of the coordinate bench of this court in the case of Rijesh Ravindran, Sri Hashmath Pasha submitted that the coordinate bench has not properly understood the principle laid down in Tofan Singh. This court may either concur with the views expressed by the coordinate bench or differ from it if it can be said that Tofan Singh has not been properly applied. The matter may also be referred to a larger bench. These three courses are open, but he submitted that since Tofan Singh has not been properly applied in Rijesh Ravindran, this court can distinguish it to arrive at a different opinion. Discussion:- 7. The whole exercise of Sri Hashmath Pasha is very clear, in the sense that, if the respondent ought to file charge sheet only, it is needless to say that the petitioner would be entitled to be released on bail in accordance with section 167(2) of Cr.P.C. The right to be released under section 167(2) of Cr.P.C is indefeasible and I do not think that it is necessary to refer to ‘n’ number of rulings cited by Sri Hashmath Pasha in this regard. In this case, the respondent filed a complaint under section 36A(1)(d) of NDPS Act on 19.3.2021, instead of filing charge sheet on or before expiry of 180 days from 24.9.2020, the date of remand of the petitioner to custody. 8. The respondent is not an officer of police force. He is an officer of NCB who derives authority to investigate under section 53 of NDPS Act. Section 53 reads : - “53. 8. The respondent is not an officer of police force. He is an officer of NCB who derives authority to investigate under section 53 of NDPS Act. Section 53 reads : - “53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.— (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces 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 this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.” Given a plain reading to section 53, it is possible to understand that the Central Government may invest any officer of the department of central excise, narcotics, customs, revenue intelligence, paramilitary forces or armed forces with the powers of officer-in-charge of police station, and the requirement is that Central Government should consult with the State Government before issuing notification in the official gazette. Likewise, the State Government may also invest the officer of drugs control, revenue or excise or any other department with the power of an officer-in-charge of police station. 9. The legislative intent behind conferring the power of officer in charge of police station is found in Statement and Objects of enacting NDPS Act, 1985. Objective No. (ii) is extracted as it is apposite here. “(ii) The existing Central laws do not provide for investing the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc., with the power of investigation of offences under the said laws.” 10. It may be stated further that offences relating to narcotic drugs and substances have a large scale devastating effect on the society. If a murder takes place, it may be due to personal enemity; but a perpetrator of an offence under NDPS Act has no any individual as his target; the affected persons are mainly the youth. It may be stated further that offences relating to narcotic drugs and substances have a large scale devastating effect on the society. If a murder takes place, it may be due to personal enemity; but a perpetrator of an offence under NDPS Act has no any individual as his target; the affected persons are mainly the youth. Probably, with a view to effectively combating the drug menace, the legislature might have thought that in addition to the police force, officers of certain other departments should be empowered to take action, identical to that of a police officer. Mere conferment of power is not enough; for effectively dealing with perpetrators of crime, they must have all the powers of investigation, otherwise it is like a snake without teeth. Having been invested with power of investigation, those officers must come out with a report of the result of their investigation. 11. Now in so far as investigation into cognizable offence are concerned, it starts with registration of FIR under section 154(1) Cr.P.C and ends up with final report under section 173(2). To file a charge sheet against an accused, the investigation must disclose commission of an offence by the accused. If no offence is disclosed and if the accused is in custody, the officer in charge of police station should release him in accordance with section 169 Cr.P.C. Releasing of an accused under section 169 and making a final report under section 173(2) are the exclusive powers of a police officer. 12. In regard to investigation of offences under the NDPS Act, not only the police, but also officers of some other departments have power. Chapter IV of NDPS Act deals with offences and penalties, and Chapter V, with the procedure. Relevantly, sections 4 and 5 of Cr.P.C can be referred to here. If section 4 (1) states that all the offences under IPC are to be investigated according to provisions of Cr.P.C, subsection (2) states that in respect of offences under other law, the investigation, inquiry and trial may be held according to the provisions of Cr.P.C, but if the other enactment specifies a procedure regulating investigation, inquiry or trial, Cr.P.C is not applicable. Section 5 of Cr.P.C also makes it clear that in the absence of specific provisions to the contrary, provisions of Cr.P.C shall not affect any special or local law which is in force, or special jurisdiction or power conferred, or any other law for the time being in force. In other words, if any procedure as to investigation, inquiry or trial is prescribed in any other law, it prevails, provisions of Cr.P.C may be applied to the extent they are made applicable in the other law. In NDPS Act, sections 33, 36, 36A(c), 36C, 37(2) make it clear as to the extent of applicability of Cr.P.C. Therefore, it is to be stated that even though a police officer takes up investigation of the offences under NDPS Act, he has to follow the procedure prescribed under NDPS Act, and not according to provisions of Cr.P.C, except to the extent its provisions can be applied. As rightly submitted by Sri Madhukar Deshpande, there is interplay between the provisions of NDPS Act and the Cr.P.C. It is in this background the scope of section 53 of NDPS Act has to be first understood in order to answer the question raised by Sri Hashmath Pasha. The question is: “Can’t an officer of NCB file a complaint under section 36A(1)(d) of NDPS Act? 13. Before answering this question, the judgment of the Supreme Court in Tofan Singh needs to be referred to here, as both Sri. Hashmath Pasha and Sri.Madhukar Deshpande have based their arguments to this decision. In Tofan Singh, the primary question that arose was not about filing of a charge sheet or complaint by an officer invested with power of officer in charge of police station under section 53 of NDPS Act, but about the applicability of bar under section 25 of the Indian Evidence Act to a statement of an accused given under section 67 of NDPS Act. Though the Hon’ble Supreme Court posed the question “whether an officer designated under section 53 of the NDPS Act can be said to be a police officer”, but in my opinion, the said question was to examine the main question about scope of statement under section 67 vis-à-vis section 25 of the Indian Evidence Act. The question as has arisen in the case on hand did not arise in Tofan Singh, though incidentally reference is made to section 36A(1) (d) of NDPS Act. The question as has arisen in the case on hand did not arise in Tofan Singh, though incidentally reference is made to section 36A(1) (d) of NDPS Act. Sri. Hashmath Pasha argued that ratio in Rajkumar Karwal has been overruled in Tofan Singh and therefore filing of complaint by officers empowered under section 53 of NDPS Act is not permitted. 14. Sri Hashmath Pasha mainly refers to the following paragraphs of the said judgment : - “128.The golden thread running through all these decisions – some of these being decisions of five-Judge Benches which are binding upon us – beginning with Barkat Ram (supra), is that where limited powers of investigation are given to officers primarily or predominantly for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers under section 25 of the Evidence Act. What must be remembered is the discussion in Barkat Ram (supra) that a “police officer” does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station. The broad view has been accepted, and never dissented from, in all the aforesaid judgments, namely, that where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions. 129. Shri Lekhi’s assault on Raja Ram Jaiswal (supra), stating that it is wrongly decided and ought to be held to be per incuriam, cannot be countenanced. Raja Ram Jaiswal (supra) correctly decided that the Court in Barkat Ram (supra) had held that the words “police officer” to be found in section 25 of the Evidence Act are not to be construed in a narrow way, but in a wide and popular sense. It is wholly incorrect to say, from a strained reading of Barkat Ram (supra) that, in reality, Barkat Ram (supra) preferred the “narrow” view over the “broad” view. It is wholly incorrect to say, from a strained reading of Barkat Ram (supra) that, in reality, Barkat Ram (supra) preferred the “narrow” view over the “broad” view. This is also contrary to the understanding of several judgments of this Court which refer to Barkat Ram (supra), and which continued to adopt the broad, and not narrow, test laid down in the said judgment. Also, Raja Ram Jaiswal (supra) has been referred to by several Constitution Benches of this Court, as has been pointed out by us hereinabove, as also other Division Benches, and has never been doubted. In fact, it has always been distinguished in the revenue statute cases as well as the railway protection force cases as being a case in which all powers of investigation, which would lead to the filing of a police report, were invested with excise officers, who therefore, despite not belonging to the police force properly so-called, must yet be regarded as police officers for the purpose of section 25 of the Evidence Act. The vital link between section 25 and such officers then gets established, namely, that in the course of investigation it is possible for such officers to take a shortcut by extorting confessions from an accused person. 140. What is clear, therefore, is that the designated officer under section 53, invested with the powers of an officer in charge of a police station, is to forward a police report stating the particulars that are mentioned in section 173(2) CrPC. Because of the special provision contained in section 36A(1) of the NDPS Act, this police report is not forwarded to a Magistrate, but only to a Special Court under section 36A(1)(d). Raj Kumar Karwal (supra), when it states that the designated officer cannot submit a police report under section 36A(1)(d), but would have to submit a “complaint” under section 190 of the CrPC misses the importance of the non obstante clause contained in section 36A(1), which makes it clear that the drill of section 36A is to be followed notwithstanding anything contained in section 2(d) of the CrPC. It is obvious that section 36A(1)(d) is inconsistent with section 2(d) and section 190 of the CrPC and therefore, any complaint that has to be made can only be made under section 36A(1)(d) to a Special Court, and not to a Magistrate under section 190. It is obvious that section 36A(1)(d) is inconsistent with section 2(d) and section 190 of the CrPC and therefore, any complaint that has to be made can only be made under section 36A(1)(d) to a Special Court, and not to a Magistrate under section 190. Shri Lekhi’s argument, that the procedure under section 190 has been replaced only in part, the police report and complaint procedure under section 190 not being displaced by section 36A(1)(d), cannot be accepted. Section 36A(1)(d) specifies a scheme which is completely different from that contained in the CrPC. Whereas under section 190 of the CrPC it is the Magistrate who takes cognizance of an offence, under section 36A(1)(d) it is only a Special Court that takes cognizance of an offence under the NDPS Act. Secondly, the “complaint” referred to in section 36A(1)(d) is not a private complaint that is referred to in section 190(1)(a) of the CrPC, but can only be by an authorised officer. Thirdly, section 190(1)(c) of the CrPC is conspicuous by its absence in section 36A(1)(d) of the NDPS Act – the Special Court cannot, upon information received from any person other than a police officer, or upon its own knowledge, take cognizance of an offence under the NDPS Act. Further, a Special Court under section 36A is deemed to be a Court of Session, for the applicability of the CrPC, under section 36C of the NDPS Act. A Court of Session under section 193 of the CrPC cannot take cognizance as a Court of original jurisdiction unless the case has been committed to it by a Magistrate. However, under section 36A(1)(d) of the NDPS Act, a Special Court may take cognizance of an offence under the NDPS Act without the accused being committed to it for trial. It is obvious, therefore, that in view of section 36A(1)(d), nothing contained in section 190 of the CrPC can be said to apply to a Special Court taking cognizance of an offence under the NDPS Act. 148. Shri Lekhi, however, argued that section 53 does not use the expression “deemed” and that therefore, the power contained in section 53(1) is only a truncated power to investigate which does not culminate in a police report being filed. We cannot agree. 148. Shri Lekhi, however, argued that section 53 does not use the expression “deemed” and that therefore, the power contained in section 53(1) is only a truncated power to investigate which does not culminate in a police report being filed. We cannot agree. The officer who is designated under section 53 can, by a legal fiction, be deemed to be an officer in charge of a police station, or can be given the powers of an officer in charge of a police station to investigate the offences under the NDPS Act. Whether he is deemed as an officer in charge of a police station, or given such powers, are only different sides of the same coin – the aforesaid officer is not, in either circumstance, a police officer who belongs to the police force of the State. To concede that a deeming fiction would give full powers of investigation, including the filing of a final report, to the designated officer, as against the powers of an officer in charge of a police station being given to a designated officer having only limited powers to investigate, does not stand to reason, and would be contrary to the express language and intendment of section 53(1).” 15. Sri Madhukar Deshpande has referred to paragraphs 136, 137, 140 and 141 of the same judgment. Paras 136, 137 and 141 are extracted below : - “136. The language of section 53(1) is crystal clear, and invests the officers mentioned therein with the powers of “an officer-in-charge of a police station for the investigation of the offences under this Act”. The expression “officer in charge of a police station” is defined in the CrPC as follows: “(o) “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;” 137. The expression “police report” is defined in section 2(r) of the CrPC as follows: “(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;” 141. The expression “police report” is defined in section 2(r) of the CrPC as follows: “(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;” 141. Also, the officer designated under section 53 by the Central Government or State Government to investigate offences under the NDPS Act, need not be the same as the officer authorised by the Central Government or State Government under section 36A(1)(d) to make a complaint before the Special Court. As a matter of fact, if the Central Government is to invest an officer with the power of an officer in charge of a police station under sub-section (1) of section 53, it can only do so after consultation with the State Government, which requirement is conspicuous by its absence when the Central Government authorises an officer under section 36A(1)(d). Also, both section 53(1) and (2) refer to officers who belong to particular departments of Government. Section 36A(1)(d) does not restrict the officer that can be appointed for the purpose of making a complaint to only an officer belonging to a department of the Central/State Government. There can also be a situation where officers have been designated under section 53 by the Government, but not so designated under section 36A(1)(d). It cannot be that in the absence of the designation of an officer under section 36A(1)(d), the culmination of an investigation by a designated officer under section 53 ends up by being an exercise in futility”. 16. The view expressed is that meaning of the word police officer cannot be understood in a narrow sense. There cannot be a second word with regard to this proposition for, any officer, who is not a member of police force, is invested with powers of investigation, he should have all the powers necessarily required for holding investigation and he must submit a final report, or otherwise, the investiture is nothing but an exercise in futility as observed in para 141 of Tofan Singh. It is not difficult to understand as to why Sri Hashmath Pasha emphasizes that only charge sheet should be filed by the respondent; it is because of what is stated in paragraph 141 that the designated officer under section 53 invested with the powers of an officer in charge of a police station, is to forward a police report stating the particulars that are mentioned in section 173(2) Cr.P.C and that because of special provision contained in section 36A(1) of the NDPS Act, this police report is not forwarded to a Magistrate, but only to a Special Court under section 36A(1)(d). But the argument of Sri Hashmath Pasha cannot be accepted merely by the observation made in para 140. To fortify my view, paragraph 147 of Tofan Singh may be referred to here. “147. .At this juncture, it is important to state that we do not accept the submission of Shri S.K. Jain that the “complaint” referred to in section 36A(1)(d) refers only to section 59 of the NDPS Act. A complaint can be made by a designated officer qua offences which arise under the NDPS Act – it is not circumscribed by a provision which requires previous sanction for an offence committed under section 58, as that would do violence to the plain language of section 36A(1)(d). This argument is, therefore, rejected. It is always open, therefore, to the designated officer, designated this time for the purpose of filing a complaint under section 36A(1)(d), to do so before the Special Court, which is a separate procedure provided for under the special statute, in addition to the procedure to be followed under section 53, as delineated hereinabove”. (emphasis supplied) 17. It may be noticed that in the above paragraph, the word ‘designated’ is used while referring to an officer not being a regular police officer. But the word found in section 36A(1)(d) is authorized. Section 53 of NDPS Act very clearly specifies that the officers of departments of central excise, narcotics, customs, revenue intelligence or any other department of Central Government including paramilitary forces or armed forces of the Central Government can be invested with the power of officer in charge of a police station. But the word found in section 36A(1)(d) is authorized. Section 53 of NDPS Act very clearly specifies that the officers of departments of central excise, narcotics, customs, revenue intelligence or any other department of Central Government including paramilitary forces or armed forces of the Central Government can be invested with the power of officer in charge of a police station. So far as the State Government is concerned, the power of investigation is invested in the officers of the department of drug control, revenue or excise, officers of any other department or any class of such officers. So in section 53, the word employed is ‘invest’. In Sections 41(2) and 42(1) of the NDPS Act, it is stated that the officers mentioned therein are to be empowered. Whatever may be the language of these sections with different wordings, they all convey one meaning that the officers empowered under section 41(2) and 42(1) are the officers invested with power of investigation under section 53, and they will ultimately end up with either filing a final report under section 173(2) or a complaint, and therefore the word designated as referred to in para 147 of Tofan Singh and ‘authorized’ employed in section 36A(1)(d) refer to officers empowered or invested with the powers of investigation. So far as the procedure of investigation is concerned, the police officers as also the officers of other departments specified in the sections have to follow the procedure prescribed under the NDPS Act only. 18. Now if sections 41(2) and 42 (1), and section 53 of the NDPS Act are seen it is very apparent that in section 53, the police officers are not specified though in section 41(2) and 42 (1) it is stated that the police officers are also to be empowered by the State Government. Here lies the subtle distinction. After the investigation, if the investigator has collected sufficient evidence about the involvement of the accused in commission of offence or offences under the NDPS Act, the investigation must result in prosecution of the accused either by filing the charge sheet or a complaint. Charge sheet or complaint is the result of investigation and not a part of investigation. Thus comes into picture section 36A(1)(d) of the NDPS Act. Charge sheet or complaint is the result of investigation and not a part of investigation. Thus comes into picture section 36A(1)(d) of the NDPS Act. It is needless to say that whenever a police officer investigates a case under NDPS Act or any other law, he must submit a final report in accordance with section 173(2) of Cr.P.C. If any other officer authorized or empowered makes investigation, such investigation must result in filing a complaint under section 36A(1)(d). So broadly two categories may be made among the officers who investigate into an offence under the NDPS Act, one category being the police officers and the other being all other empowered officers of other departments. The officers of narcotics department come under the second category. Sri Hashmath Pasha has made an attempt to further categorize among the empowered officers. He founded his argument based on an observation made in Tofan Singh that it is the primary duty of an officer of a department which decides whether he can be called a police officer or not. It may be true that the officers of the department of customs, revenue, etc., have been entrusted with detection and prevention of offences under the NDPS Act in addition to their regular departmental duty. It is on this line Sri Hashmath Pasha argued that the officers of narcotic department do not have other departmental duty and that they are primarily meant for prevention and investigation of the offences under the NDPS Act; they stand further distinguished from the officers of other departments and that they are the police officers. This argument cannot be accepted. There is inclusion of officers of narcotics in Section 53 of the NDPS Act and therefore though they have the powers of an officer in-charge of the police station, it is to be stated that this investiture of power is only for the purpose of investigation. That means they do not become regular police officers to file charge sheet. It is in this background that the Central Government issued a notification on 27.9.1989 authorizing the officers above the rank of Inspector in the Department of Customs, Central Excise, Narcotics, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotics Control Bureau for filing of complaints under section 36A(1)(d) of the NDPS Act. The argument of Sri Hashmath Pasha that this notification does not authorize the respondent to file complaint cannot be accepted. 19. The argument of Sri Hashmath Pasha that this notification does not authorize the respondent to file complaint cannot be accepted. 19. Sri Hashmath Pasha tries to garner support from the decision of a Division Bench of this court in the case of State of Karnataka vs Guruva Pujari (supra). This case was in relation to an offence punishable under section 32(1) of Karnataka Excise Act. In the first instance, the Magistrate convicted and sentenced the accused. In the appeal preferred by the accused to the Sessions Court, he was acquitted on the ground that the Excise Officer who conducted the raid was not a police officer and that the entire evidence collected was in the capacity of the Excise Officer and therefore the chemical examiner’s report obtained by him was not admissible in evidence. The acquittal judgment passed by the Sessions Court was on a technical ground. In the appeal preferred by the State against the judgment of the Sessions Court, the Division Bench of this court held that the Excise Officer who would be conducting investigation should submit a report to the Magistrate empowered to take cognizance on a police report and such report should be deemed to be a police report for the purpose of section 190 of Cr.P.C. Therefore it was the argument of Sri Hashmath Pasha that the Excise Officer who is invested with the power of investigation, since has to make a report in the nature of police report, here also, the respondent being empowered to conduct investigation and having all the powers of an officer in charge of a police station should file a police report or a charge sheet. This argument is difficult to be accepted. Section 56 of the Karnataka Excise Act is extracted here for clarity:- “56. Report by Investigating Officer.-If, on any investigation by an Inspector of Excise, a Sub-Inspector of Excise or an Excise Officer empowered under sub-section (1) of section 55, it appears that there is sufficient evidence to justify the prosecution of the accused, the Investigating Officer, shall submit a report (which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1973 , be deemed to be a police report) to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on police reports”. 20. 20. The language of this section is so clear that an officer conducting investigation has to file a police report which for the purpose of section 190 of Cr.P.C is deemed to be a police report. This refers to section 190 (1) (b) of Cr.P.C. Moreover sub-section (2) of section 55 is also very relevant to be mentioned here, it says that for the purposes of section 156 of Cr.P.C, the area in regard to which an Inspector of Excise or Sub-Inspector of Excise or an Excise Officer empowered under sub-section (1) of section 55 shall be deemed to be a police station. Since investigation is taken up by these officers in accordance with section 156 of Cr.P.C, their report after investigation will be a police report according to section 190 (1) (b) Cr.P.C. In fact in para 8 of the judgment of the Division Bench, it is stated that the report of an Excise Officer would fall within section 190 (1)(b) of Cr.P.C. Therefore it is clear that in view of section 56 of the Karnataka Excise Act, the investigator has to file a police report. The same is not the case here because section 36A(1)(d) makes it very clear that a complaint can be filed. Such a complaint is necessarily by an investigator from the departments specified in section 53, i.e., other than the police officer. 21. Sri Hashmath Pasha also made it a point of argument that complaint can only be filed according to section 59 of the NDPS Act. This argument also fails for, what section 59 envisages is, in case an officer imposed with a duty under the NDPS Act refuses to perform the duties of his office, it amounts to an offence for which he can be prosecuted upon a complaint being made. The court should take cognizance only on a complaint. It is therefore clear that a complaint contemplated under section 59(3) is for a different reason, complaint contemplated under section 36A(1)(d) is in relation to offences specified in Chapter IV of NDPS Act. 22. Very recently the coordinate Bench of this court in the case of Mr. Rijesh Ravindran took a view that, “27. It is therefore clear that a complaint contemplated under section 59(3) is for a different reason, complaint contemplated under section 36A(1)(d) is in relation to offences specified in Chapter IV of NDPS Act. 22. Very recently the coordinate Bench of this court in the case of Mr. Rijesh Ravindran took a view that, “27. ………… Thus, when majority view has not categorically and specifically stated that invariably the concerned Officer should file a ‘police report’ only, and that he cannot file a complaint, on the other hand, the minority judgment has held that, there is no provision in the NDPS Act, which makes it incumbent upon the concerned Officer who make any enquiry/investigation under the NDPS Act, to prepare or file any report, it is clear that though the majority as well as the minority view has any difference on the point that the concerned Officer can file either a ‘Police report’ or a ‘complaint’. Therefore, the main argument of the learned Senior Counsel for the petitioner that, the Intelligence Officer of the respondent ought to have filed a ‘police report’ but not a ‘complaint’ in the matter, as such, it has to be taken that within the prescribed period of 180 days, no report has been filed entitling the petitioner for a default bail under Section 167(2) of the Cr.P.C. and also the taking of cognizance on such complaint would not hold good in the eye of law, is not acceptable”. (underlining by me) 23. In view of the above discussion, I do not think that the view expressed by the coordinate bench requires to be distinguished as submitted by Sri Hashmath Pasha, and I am in full agreement with the view taken by the coordinate bench. 24. In para 142 of the judgment in Tofan Singh, anomaly arising from the judgment of Rajkumar Karwal has been pointed out. Referring to this observation of the Hon’ble Supreme Court, Sri Hashmath Pasha made it a point of argument that only charge sheet is permitted to be filed by the respondent officer as, in case his investigation does not disclose existence of sufficient evidence against the accused, in accordance with section 169 of Cr.P.C., the investigator should have powers of releasing the accused. Para 142 is extracted below :- “142. Take the anomalous position that would arise as a result of the judgment in Raj Kumar Karwal (supra). Para 142 is extracted below :- “142. Take the anomalous position that would arise as a result of the judgment in Raj Kumar Karwal (supra). Suppose a designated officer under section 53 of the NDPS Act investigates a particular case and then arrives at the conclusion that no offence is made out. Unless such officer can give a police report to the Special Court stating that no offence had been made out, and utilise the power contained in section 169 CrPC to release the accused, there would be a major lacuna in the NDPS Act which cannot be filled”. 25. I do not deny existence of such an anomaly in view of the language employed in section 36A(1)(d). It is to the Special Court alone, a complaint can be preferred. Section 36A(1)(d) states that all offences punishable with imprisonment for more than three years shall be triable only by the Special Court, conversely the indication is that offences punishable with imprisonment for less than three years may be tried by a Magistrate. Anomaly pointed is that complaint cannot be filed to the Magistrate and in case investigator finds no evidence against the accused, power under section 169 Cr.P.C is not available to the investigator. Certainly this anomaly exists in the NDPS Act and it is for the legislature to set it right. If a situation of this nature arises, it may be stated that in case the investigator finds no evidence against the accused during investigation of an offence triable by a Magistrate, it cannot be said that the accused cannot be released. When there is no evidence, the accused detained in custody should be forthwith released as his detention becomes illegal. Therefore this point of argument is not available to Sri Hashmath Pasha. 26. From the analysis made above, the conclusion to be given is that in respect of an offence/offences investigated by a police officer, he has to file charge sheet in accordance with section 173(2) of Cr.P.C and the other specified officers empowered under section 53, have to file a complaint only to the Special Court under section 36A(1)(d) of NDPS Act. The complaint filed in the instant case is in accordance with the procedure prescribed under NDPS Act. The complaint filed in the instant case is in accordance with the procedure prescribed under NDPS Act. The complaint having been filed within 180 days of remand of the petitioners to custody, he is not entitled to statutory bail under section 167(2) Cr.P.C. Therefore this writ petition deserves dismissal, ordered accordingly.