ORDER : By way of instant petition, petitioner has sought quashing of charges framed against him by learned Special Judge-II, Kullu, under Sections 8, 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). 2. The record reveals that petitioner has been charged by learned Special Judge-II, Kullu, on 30.8.2019 in case titled NCB vs. Amar Nath & another for offences under Sections 8, 20 and 29 of the NDPS Act. 3. The petition, as filed before this Court, initially was under Section 401 read with Section 482 Cr.P.C. with prayer to quash the proceedings pending before learned Special Judge-II, Kullu, in addition to quashing of charges framed against him. On 27.8.2020, the following order came to be passed by this Court :- “Learned counsel for the petitioner submits that this petition may be treated as a Criminal Revision Petition filed under Section 397 of the Code of Criminal Procedure. Prayer so made is allowed. Learned counsel for the petitioner is permitted to make necessary alterations/ amendments in the petition in the Court itself today. Registry is directed to make necessary entries in the register by treating this petition as a Criminal Revision Petition.” As a consequence of aforesaid conduct of petitioner, the left out limited prayer sought by petitioner is to quash charges dated 30.8.2019, framed against him by learned Special Judge-II, Kullu. 4. The revisional power of this Court emanates from Section 397 of Cr.P.C., whereunder this Court is empowered to call for and examine the records of any proceeding before any inferior Criminal Court, situate within its local jurisdiction for the purpose of satisfying itself, as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court. 5. Petitioner in the instant petition has sought quashing of the charges framed against him on 30.8.2019. The procedure of framing of charges was preceded by an order passed by learned Special Judge-II, Kullu on 30.8.2019. The framing of charges was a consequence of the aforesaid order. However, there is no prayer made in the petition for setting aside said order. Assumingly, the prayer to quash charges framed against petitioner on 30.8.2019 includes prayer to quash order dated 30.8.2019, the ground of challenge raised on behalf of the petitioner at the time of hearing is twofold. The framing of charges was a consequence of the aforesaid order. However, there is no prayer made in the petition for setting aside said order. Assumingly, the prayer to quash charges framed against petitioner on 30.8.2019 includes prayer to quash order dated 30.8.2019, the ground of challenge raised on behalf of the petitioner at the time of hearing is twofold. Firstly, that from the contents of complaint itself, no case is made out against the petitioner. Special reference has been made to contents of para-55 of the complaint, which reads as under: - “55. That from the above facts forming part of the Complaint it is clear that the accused persons are liable to be tried, convicted & punished for offences punishable under section 8, 20 & 29 of NDPS Act 1985. The guilt of the accused persons Amar nath @ Amri s/o Rup Chand and Mohar Singh @ Pujari s/o Devi Ram would be established by their confessional statement recorded u/s 67 of NDPS Act.” Secondly, it is submitted that the complaint filed against the petitioner on behalf of the respondent is not maintainable in light of law laid down by a Division Bench of this Court in Khekh Ram vs. Narcotics Central Bureau & another, 2018 (1) Shimla Law Cases 219. It is alleged that the complaint has been filed without prior express permission of the Court and secondly, 6. While exercising the revisional jurisdiction, this Court will confine itself to adjudge whether the order impugned in the instant petition is correct, legal and proper? 7. Sections 227 and 228 of the Cr.P.C. empower the Sessions Judge to either discharge the accused or frame charges against him after consideration of the records of the case, documents submitted therewith and hearing the submissions of the accused and prosecution in this behalf. Perusal of order dated 30.8.2019, which finds place at page No.9 of the paper book, reveals that the same has been passed by learned Special Judge-II, Kullu, after having complied with the aforesaid provisions. The order records that the contentions of learned special prosecutor and also the learned defence counsel were heard. The records were perused with care and thereafter the opinion was formed to frame charges against the petitioner. In this view of the matter, the order dated 30.8.2019 satisfies the requirements of sections 227 and 228 of Cr.P.C. 8. The order records that the contentions of learned special prosecutor and also the learned defence counsel were heard. The records were perused with care and thereafter the opinion was formed to frame charges against the petitioner. In this view of the matter, the order dated 30.8.2019 satisfies the requirements of sections 227 and 228 of Cr.P.C. 8. Learned counsel for petitioner has further submitted that there was no material on record which could be converted to legal evidence to secure the conviction of petitioner. It is contended that confessional statements relied upon by NCB were neither relevant nor admissible as evidence. This court finds merit in the contention so raised to the extent that the confessional statement allegedly made by the petitioner and other co-accused, were neither relevant nor admissible, in view of law laid down in Tofan Singh vs. State of Tamil Nadu, 2021 (4) SCC 1 in which it has been held as under:- “158. We answer the reference by stating : 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” 9. However, it is not a case where apart from reliance on confessional statements no other material was relied upon by the NCB. It has also been alleged in the complaint that the NCB during investigation found from analysis of mobile phone call records that petitioner was probable suspect behind arranging the consignment of charas for Neelmani. The Consumer Application forms (CAF) of mobile number of Petitioner and those of Neelmani and Khekh Ram have also been relied upon. It is alleged that petitioner used mobile No. 98167-11354. Such allegations are subject to proof during trial and as such, the impugned order dated 30.8.2019, cannot be faulted. 10. The Hon’ble Supreme Court in Bhawna Bai vs. Ghanshyam & others, 2020 (2) SCC 217 , has held as under:- “14. It is alleged that petitioner used mobile No. 98167-11354. Such allegations are subject to proof during trial and as such, the impugned order dated 30.8.2019, cannot be faulted. 10. The Hon’ble Supreme Court in Bhawna Bai vs. Ghanshyam & others, 2020 (2) SCC 217 , has held as under:- “14. Chapter XVIII Cr.P.C. deals with “Trial before a Court of Session”. As per Section 226 Cr.P.C., the public prosecutor is required to open the case before the Sessions Court by describing the charge brought against the accused and stating by what evidence, he proposes to prove the guilt of the accused. Section 227 Cr.P.C. deals with discharge and it reads as under:- “227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 15. Considering the scope of Sections 227 and 228 Cr.P.C., in Amit Kapoor v. Ramesh Chander the Supreme Court held as under:- “17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. 19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh : “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 227. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which — … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused’, as provided in Section 228. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which — … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused’, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 11. Now the question arises that after having adjudicated upon the matter, as far as prayer made therein is concerned, should this court indulge in deciding the other question regarding maintainability of complaint itself without there being any challenge to the filing of complaint or cognizance taken thereon by learned Special Judge? 12. A Division Bench of this Court allowed the Criminal appeal No. 450 of 2016 of Khekh Ram vide judgment dated 29.12.2017, reported in 2018(1) Shimla Law Cases 219, by holding as under:- “34. From the conspectus of the aforesaid discussion, we have no hesitation to conclude even though there exists no specific provision in the Code of Criminal Procedure to file supplementary complaint in a complaint case, however, if on further investigation and with the express leave of the court, the culpability and the complicity of any other person is established the supplementary complaint be filed. 35. Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. 35. Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside. 36. Accordingly, Appeal No. 450 of 2016 is allowed and the impugned judgment of conviction and sentence passed by the learned Special Judge-I, Kullu on 26.09.2016, is set aside. The appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case. Registry is directed to prepare release warrants immediately.” It is also not in dispute that NCB has filed the complaint against petitioner without prior express permission from the Court. 13. In light of the judgment passed by a Division Bench of this Court in Khekh Ram’s case (supra) coupled with admitted position that complaint against petitioner is without prior express permission of the Court, this Court finds it unable to sit as a silent spectator merely for want of appropriate prayer in the petition. This is a fit case where the inherent jurisdiction saved in this Court under Section 482 Cr.P.C. need to be exercised to serve cause of justice. 14. The respondent contends that the facts in Khekh Ram’s case (supra) were different, as Khekh Ram was the named accused initially with the principal accused Neelmani, whereas, the petitioner is on different footing. 15. To adjudge the rival contentions, this Court considers it appropriate to gainfully reproduce the necessary facts in the case of Khekh Ram, as also the facts culminating in filing of complaint against petitioner. 16. On 20.10.2014, a team of NCB, during routine surveillance received secret information that a person named Neelmani @ Neelu was to receive about 15-20 kg of charas through a span at a place about ½ to one km ahead of a village Shaat towards Manikaran. The information was recorded in writing and was communicated to superior officer in compliance of Section 42 of NDPS Act. The raiding party was formed and eventually Neelmani was apprehended immediately after receipt of a packet by him through span at the nominated place. The packet was checked and found to contain 19.780 k.g. of charas. The information was recorded in writing and was communicated to superior officer in compliance of Section 42 of NDPS Act. The raiding party was formed and eventually Neelmani was apprehended immediately after receipt of a packet by him through span at the nominated place. The packet was checked and found to contain 19.780 k.g. of charas. During investigation, NCB further found complicity of Khekh Ram. However, Khekh Ram absconded and did not join investigation. Proceedings for declaring Khekh Ram as proclaimed offender was initiated. It was during such proceedings that Khekh Ram surrendered on 2.6.2015. Khekh Ram was also tried by filing a supplementary complaint against him. 17. Both Neelmani and Khekh Ram were convicted by Learned Special Judge. Khekh Ram assailed his conviction and sentence before a Division Bench of this Court in Criminal Appeal No. 450 of 2016 and Neelmani assailed his conviction and sentence in Criminal Appeal No. 38 of 2017. One of the grounds of challenge raised on behalf of Khekh Ram was that the supplementary complaint filed against him was not maintainable, as there was no provision either in Cr.P.C or in NDPS Act for filing supplementary complaint. Criminal Appeal No. 38 of 2017 of Neelmani was also allowed vide same judgment and Neelmani was also acquitted of the charges framed against him. 18. Sh. Ashwani Pathak, learned Senior Advocate representing the NCB has submitted that the aforesaid judgment, acquitting Khekh Ram and Neelmani has not attained finality as the NCB has already assailed the said judgment by way of separate SLPs (Criminal) before the Hon’ble Supreme Court. The learned counsel for the NCB has not been able to point out the exact status of the SLPs, so filed. From the downloaded copies from the website of Hon’ble Supreme Court of India, it has transpired that the leave to appeal has already been granted by the Hon’ble Supreme Court in Khekh Ram as well as Neelmani’s cases. Accordingly, Criminal Appeal No. 497 of 2019 has been registered in the case of Khekh Ram. However, the judgment passed by a Division Bench of this Court in Criminal Appeal No. 450 of 2016 does not appear to have been stayed till date. Accordingly, Criminal Appeal No. 497 of 2019 has been registered in the case of Khekh Ram. However, the judgment passed by a Division Bench of this Court in Criminal Appeal No. 450 of 2016 does not appear to have been stayed till date. That being so, the judgment passed by a Division Bench of this Court in Criminal Appeal No. 450 of 2016 is binding on this Court and in light of the law laid down in the aforesaid judgment, the complaint filed against petitioner without express permission of the Court cannot be held to be maintainable. 19. The distinction sought to be drawn on behalf of NCB in the case of petitioner Khekh Ram, as noticed above, in considered view of this Court has no basis. The fact of the matter is that the petitioner, as per contents of complaint filed against him, was at the radar of NCB immediately after apprehension of Neelmani. Para-34 of the complaint reads as under:- “That on dated 10.07.2015 and 15.07.2015 due to the suspected involvement of Mohar Singh and Amar Nath @ Amri, they were issued notices u/s 67 of NDPS Act and their statement were recorded, in which they denied their involvement. At that time there was no sufficient evidence found against them and they were allowed to go.” Even otherwise, all the accused involved in aforesaid case were to be tried/charged jointly in light of Section 223 (a) (b) (d) of Cr.P.C., which reads as under :- “223. What persons may be charged jointly.- The following persons may be charged and tried together, namely:- “(a) persons accused of the same offence committed in the course of the same transaction; (b) Persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (d) persons accused of different offences committed in the course of the same transaction.” The terms “may” used in Section 223 Cr.P.C. cannot be said to vest absolute discretion to charge and try separately on fulfillment of any of the condition prescribed under said section as the said event shall not only cause prejudice to the vested rights of accused persons, but shall also strike at the very basis of criminal justice system adopted in the country. 20. Under Section 190 Cr.P.C. the Magistrate can take cognizance of any offence either on a complaint or on police report or on his own information. 20. Under Section 190 Cr.P.C. the Magistrate can take cognizance of any offence either on a complaint or on police report or on his own information. Under Section 36A (i) (d), a Special Court constituted under the NDPS Act is empowered to take cognizance of offence under the said Act either upon complaint made by an officer of the Central Government or a State Government, authorized in this behalf or on perusal of police report. Thus, the power to take cognizance on complaint is akin to power to take cognizance under Section 190 Cr.P.C. Neither there is any provision in Cr.P.C. nor in NDPS Act that provides for filing of more than one police report or filing of more than one complaint in a single case. The only provision is section 173 (8) Cr.P.C. that empowers the investigating agency to carry out further investigation even after submission of report under subsection (2) of Section 173 and to file supplementary challan. In Vinubhai haribhaj Malaviya & others vs. State of Gujarat & another, 2019 (17) SCC 1 , a three Judges Bench of Hon’ble Supreme Court has held that power to further investigation of an offence would be available at all stages of the progress of criminal case before the trial actually commence. In paragraph-49 of the judgment, it has been held as under:- “49. Immediately after this judgment, Parliament enacted sub-sections (5) and (6). Despite the enactment of these provisions, this Court in Vijaysinh Chandubha Jadeja (supra) specifically held as follows: “24. In paragraph-49 of the judgment, it has been held as under:- “49. Immediately after this judgment, Parliament enacted sub-sections (5) and (6). Despite the enactment of these provisions, this Court in Vijaysinh Chandubha Jadeja (supra) specifically held as follows: “24. Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. xxx xxx xxx 27. It can, thus, be seen that apart from the fact that in Karnail Singh, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in Baldev Singh case insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial. xxx xxx xxx 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. xxx xxx xxx 31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor is it in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” Thus, the power under Section 173 (8) Cr.P.C. has been circumscribed and limited till the stage the trial actually commences. The Division Bench of this Court in Khekh Ram (supra) has further held that power to file supplementary complaint is subject to prior permission of the Court. It may be noticed that power to file supplementary complaint is akin and drawable from the power enshrined in Section 173 (8) Cr.P.C. 21. Thus, in the peculiar facts of this case, continuation of complaint against petitioner before learned Special Judge would be abuse of process of court. In order to secure the ends of justice, the complaint filed against the petitioner by the respondent NCB, pending adjudication before learned Special Judge-II, Kullu and proceedings under the NDPS Act in case No. 79 of 2019, titled NCB vs. Amar Nath and Another is quashed and set aside being not maintainable. 22. In view of the aforesaid observations, the present petition is disposed of. Pending applications, if any, also stand disposed of. Records be sent back forthwith.