JUDGMENT : 1. Heard Sri Dharm Raj Mishra, learned counsel for the applicant, Sri Rajan Mishra, Advocate holding brief of Sri Quazi Vakil Ahmad, learned counsel for the opposite party no.2, Sri Aniruddh Kumar Singh, learned A.G.A.-I and Sri Sanjay Kumar Yadav, learned AGA for the State. 2. By means of the instant petition, the applicant has sought following:- (I) issue an order or direction in appropriate nature for setting aside the impugned order dated 26.04.2023 passed by the learned Additional Session Judge, F.T.C. -II, Bahraich contained as annexure No.1 to the petition and further may pleased to set aside the charge sheet No.7 of 2022 contained as annexure No.5 to the petition. (II) Issue an order or direction in appropriate nature to set-aside the proceeding of case crime No.67/2005 under Section-342, 379, 427, 468, 471, 120 (B) I.P.C. and under Section 8/20/29 of the N.D.P.S. Act pending before learned Additional Session Judge, F.T.C. -II, Bahraich and direct the opposite party No.1 to investigate the matter in fair and impartial manner. 3. Factual matrix of the case is that the petitioner with other members of the Police team, on an information, raided and arrested Sarfaraz on 18 June 2003 from Nepal border and 1 KG of Charas, i.e., contraband substance was recovered from his possession and a First Information Report was lodged as Case Crime No. 202 of 2003 under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the Act 1985'). Thereafter, Shrinath Yadav was appointed as Investigating Officer who recorded the statement of the witnesses and prepared the site plan and submitted the chargesheet on 6 July 2003 but in the meanwhile, the father of the accused wrote a letter to the Human Rights Commission, that his son is being falsely implicated and thereafter the Special Secretary Home wrote a letter to the Superintendent of Police, Bahraich to conduct an enquiry regarding allegations levelled by the father of the opposite party no. 3 and Circle Officer, Nanpara, Bahraich was appointed to enquire the matter. Thereafter recording the statement of opposite party no. 2 and the witnesses, submitted his report that the allegations made by the opposite party no. 3 and Circle Officer, Nanpara, Bahraich was appointed to enquire the matter. Thereafter recording the statement of opposite party no. 2 and the witnesses, submitted his report that the allegations made by the opposite party no. 2, are not correct and ignoring the report of the Circle Officer dated 17.11.2003, the Under Secretary, Government of Uttar Pradesh, directed to the Director General of Police to transfer the investigation of Case Crime No. 202 of 2003 to CBCID, with immediate effect. In the meantime, the trial Court took cognizance on the chargesheet dated 28 July 2003 submitted by the Investigating Officer and charges were also framed against the opposite party no. 3 vide order dated 24 January 2004. 4. In compliance of the order of the Under Secretary, Government of UP, Nihal Prasad was appointed as Investigating Officer who submitted the final report before the trial Court. A First Information Report was lodged against the applicant under Section 8/20 of the Act, 1985, which was registered as Case Crime No. 67 of 2005. Being aggrieved, the applicant filed a writ petition, namely, 1306 (MB) of 2005 before this Court wherein the arrest of the applicant was stayed vide order dated 2 March 2005. Thereafter, Sarfaraz filed a petition under Section 482 No. 1316 of 2006, challenging the chargesheet dated 6 July 2003 filed against him which was dismissed vide order dated 18 September 2012. Further, the final report which was submitted by the Investigating Officer was rejected by the trial Court on 4 January 2006 on the protest application of the applicant and against the aforesaid order, no appeal or revision has been filed and that has attained finality. 5. Father of accused filed Writ Petition No. 25227 of 2020 before this Court for conducting proper and fair investigation in Case Crime No. 67 of 2005, which was finally disposed of vide order dated 9 July 2021, and a recall application of the order dated 9 July 2021 was moved by the applicant which is still pending. Thereafter, the father of the accused, Sarfaraz filed contempt petition bearing No. 1636 (C) of 2021. Later on, the Writ Petition No. 1306 of 2005 filed by the applicant was dismissed and a special leave petition was instituted which too was dismissed. 6. Thereafter, the father of the accused, Sarfaraz filed contempt petition bearing No. 1636 (C) of 2021. Later on, the Writ Petition No. 1306 of 2005 filed by the applicant was dismissed and a special leave petition was instituted which too was dismissed. 6. On 19.12.2022, chargesheet was filed in Case Crime No. 67 of 2005 under Sections 342, 379, 427, 467, 468, 471, 120-B of IPC and 8/20/29 of the Act, 1985. On 26 April 2023, the trial Court took cognizance against the applicant and issued summons. 7. So far as, the prosecution sanction was granted in Case Crime No. 67 of 2005, the same is under challenge before this Hon. Court and is pending consideration. 8. Contention of the learned counsel for the applicant is that, the Act, 1985 is a special Act and the intent of the legislature is clear by expressly providing punishment under Section 58 for vexatious entry and unlawful search, seizure or arrest. He added that the case in hand is that it is malicious prosecution, as the present applicant has not made vexatious entry and unlawfully arrested the opposite party no. 3. He added that the applicant acted in a good faith and there was no intention to falsely implicate opposite party no. 3 and the evidence which was collected by the Investigating Officer do not disclose that how the entry is vexatious and the search, seizure or arrest are unlawful or without any reasonable ground of suspicion. 9. Section 58 of the Act, 1985 is reproduced hereinunder :- "58. Punishrnent for vexatious entry, search, seizure or arrest.-(1) Any person empowered under section 42 or section 43 or section 44 who- (a) without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place; (b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under this Act, or of seizing any document or other article liable to be seized under section 42, section 43 or section 44; or (c) vexatiously and unnecessarily detains, searches or arrests any person, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. (2) Any person wilfully and maliciously giving false information and so causing an arrest or a search being made under this Act shall be punishable with imprisonment for a term which may extend to two years or with fine or with both." 10. Referring the aforesaid he submits that under Section 58 of the Act, 1985, there is a provision for prosecution of an Officer empowered under Section 42, 43 and 44 of the Act, 1985 for false or malicious or vexatious entry, search, seizure or arrest but the fact remains that the opposite party no. 3 who is the accused person and was arrested by the present applicant and the contraband, 1 KG Charas was seized from his possession, the chargesheet was filed against him and his discharge application was rejected and charges has been framed, meaning thereby the trial Court at first hand applied its mind and there was substantial material against the opposite party no. 3 for framing of charges and therefore, this could not be said that arrest of the opposite party no. 3 was unlawful or there is any vexatious entry or unlawful search and seizure. 11. He further argued that under Section 54 of the Act, 1985, there is a provision of presumption regarding the possession of contraband substance recovered and seized by the empowered officer, until proved otherwise. Since, the substance was admittedly recovered and seized from the possession of Sarfaraz and trial against Sarfaraz is at final stage, therefore, on the basis of presumption that such contraband was in possession of the applicant, is wholly unbelievable and baseless. Further contention of the learned counsel for the applicant is that the impugned order and the chargesheet are against the provision of section 69 of the Act, 1985. 12. Section 69 of the Act, 1985 is reproduced here in under :- "69. Protection of action taken in good faith. No suit, prosecution or other legal proceeding shall lie against the Central Government or a State Government or any officer of the Central Government or of the State Government or any other person exercising any powers or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule or order made thereunder." 13. Referring the aforesaid he submits that looking into the provision of Section 58 and for giving a safeguard to the authority under this Act, it has cautiously been provided by the legislature that no suit, prosecution or other legal proceeding shall lie against any officer of the Central Government or State Government or any person exercising any power or discharging any function under this Act which has been done in a good faith. This provision clearly shows that while promulgating the stringent punishment for offences in the Act, 1985, the legislature was aware of the misuse of the provision, and therefore provided protection, thereby inserting the provision of Section 69. 14. While adding his argument, he submits that the provision of Section 58 of the Act, 1985 provides the procedure with respect to punishment and being the special Act, if an offence is been committed by any person, which is provided in the Act itself, unless otherwise provided under law, such person or authority shall be dealt in accordance with the provision of this Act, not otherwise. He submits that chargesheet has been filed under Section 8/20/29 of the Act, 1985 along with several Sections of Indian Penal Code, which is not permissible under the law. 15. Further initiation of criminal prosecution against the present applicant is of no avail and this could only be done in the exigencies, if the final report is filed and accepted by the trial Court against the accused who has been arrested by such a person, liable to be prosecuted under Section 58 of the Act, 1985 or the criminal proceeding are concluded and such accused person is acquitted. He submits that so far as, the case in hand is concerned, the chargesheet has been filed against the opposite party no. 3 and the discharge application has been rejected and charges have been framed and that has not been challenged at any Court of law and has attained finality. He added that this, prima facie, shows that the entry is not vexatious and there is no maliciousness apparent so far as the allegation of false implication against the applicant is concerned. 16. In support of his contention, he has placed reliance on the following judgements : 1. (2000) 10 SCC 92 ; Ravindra B. Dixit Vs. State of M.P. and has referred paragraph 4 and 5 which is quoted hereinunder :- “4. 16. In support of his contention, he has placed reliance on the following judgements : 1. (2000) 10 SCC 92 ; Ravindra B. Dixit Vs. State of M.P. and has referred paragraph 4 and 5 which is quoted hereinunder :- “4. A bare reading of the aforesaid section would indicate that recourse can be taken to the said provision only when the court comes to the conclusion that the entry, search, seizure or arrest was either vexatious or unnecessary as is apparent from subsection (1)(b) of Section 58. 5. From the mere fact that there has been an infraction of Sections 42 and 50 of the Act, the Court cannot jump to the conclusion that the arrest or seizure in question was either vexatious or unnecessary. In that view of the matter, the impugned direction of the High Court must be held to be without jurisdiction as the condition precedent for application of Section 58 has been found to be lacking. In these circumstances, we set aside the impugned direction and allow these appeals accordingly.” 2. (2021) AIR SC 4476; Union of India through Narcotic Control Bureau, Lucknow Vs. M.D. Nawaz Khan and has referred paragraph 9 (iv), which is quoted hereinunder :- “9 (iv) A presumption under Section 54 of the NDPS Act would arise in respect of the possession of a narcotic drug which is found to be in the conscious possession of the accused.” 17. On the other hand, the learned counsel appearing for the private respondent has opposed the contentions aforesaid and submits that the applicant falsely implicated the opposite party no. 2 by registering a First Information Report as Case Crime No. 202 of 2003 at Police Station Nawabganj District Bahraich and that’s why the opposite party no. 2 wrote several letters, including letter to the Human Rights Commission, New Delhi and thereafter, the matter was investigated by the CBCID. The CBCID after thoroughly investigating the matter, found the charges that the opposite party no. 2 has been falsely implicated as it was found that there was some criminal conspiracies committed by the Investigating Officer and by showing false recovery of the contraband substance, the opposite party no. 2 was thrown to face stringent criminal proceedings. 18. The CBCID after thoroughly investigating the matter, found the charges that the opposite party no. 2 has been falsely implicated as it was found that there was some criminal conspiracies committed by the Investigating Officer and by showing false recovery of the contraband substance, the opposite party no. 2 was thrown to face stringent criminal proceedings. 18. During the course of his argument, he has also pointed out that the Human Rights Commission took notice of the complaint dated 02.08.2003 made by the respondent and action taken report was sought from the Superintendent of Police, Bahraich, whereafter a report was submitted, wherein, the clean chit was given to the Investigating Officer as well as other Police officers. He added that the applicant challenged the Government Order dated 24.12.2003 as well as the First Information Report dated 19.02.2005 before this Court vide criminal Writ Petition No.1306 (MB) of 2005, wherein, the order dated 13.09.2019 was passed and the petition was dismissed. He submitted that the applicant had also taken all the plea before the Division Bench of this Court, which are also being placed before this Court vide this petition. 19. He argued that the matter has thoroughly been investigated by the CBCID and thereafter the matter proceeded against the applicant and once the material substance was found against the applicant, the trial Court issued summons. Further contention of the private respondent is that the protection under Section 58 of the NDPS act cannot be granted to the applicant as the Division Bench of this Court had already expressed its view that the First Information Report has rightly been registered against the applicant and therefore, in the event of material substance against the applicant as well as the order of this Court, no interference is warranted. 20. Per contra, the learned counsel for the State submits that initially the First Information Report was lodged against the respondent and thereafter the matter proceeded and they were found involved in committing offence under the NDPS Act, as the contrabands were recovered from their possession. 20. Per contra, the learned counsel for the State submits that initially the First Information Report was lodged against the respondent and thereafter the matter proceeded and they were found involved in committing offence under the NDPS Act, as the contrabands were recovered from their possession. He submits that being aggrieved, he moved before the Human Rights Commission, New Delhi and after certain developments, the investigation against the applicant, completed and the chargesheet was filed and after taking cognizance, the Magistrate has also summoned the private respondent and in between, the CBCID has also investigated the matter and found that the applicant was involved in committing the offence and therefore the First Information Report was registered and after investigation the chargesheet has been filed. 21. Having heard the counsel for the parties and after perusal of the material placed on record, it transpires that the police team on an information raided the place of occurance and arrested Sarfaraz, respondent no. 3 at Nepal border with 1 kg of Charas and thereafter completing the formalities of recovery thereafter, the accused persons were arrested and sent to jail. Further, a complaint was made by the accused persons to the Human Rights Commission, New Delhi whereafter an investigation was also started by the CBCID and a First Information Report was lodged against the applicant with a charge of falsely implicating the accused persons in Case Crime No. 202 of 2003. Though, the applicant filed a writ petition before this Court challenging the FIR, but since the investigation was almost at the completion stage, therefore, the Court did not enter into the matter and dismissed the same. 22. When this Court examines the present matter in the light of the law regarding the false implication in the matters of the NDPS Act, it reveals that Section 58 provides punishment for vexatious entry, search, seizure, or arrest by a person empowered under Section 42 or 43 or 44 of the Act, 1985. Since, the criminal proceedings under the Act, 1985, are stringent, therefore cautiously, the Parliament has inserted provisions for the safeguard of the accused persons. Since, the criminal proceedings under the Act, 1985, are stringent, therefore cautiously, the Parliament has inserted provisions for the safeguard of the accused persons. The provision of Section 58 would come into light when without any reasonable ground of suspicion, a person empowered under section 42, 43, 44 of the Act, 1985 enters or searches or causes to be entered or searched any building, convenience or place and vexatiously and unnecessarily seized the property for pretence of searching and seizing any narcotic drug or psychotropic substance or other article or detains, searches or arrest any person, he/she shall be punished. Meaning thereby that if at any point of time pleas are raised by the accused persons, who were searched or arrested or whose properties were seized, they would have right to make complaint and on such complaint and after investigation on it, if it is found that any person has resulting it to cause falsely and maliciously given false information or arrested or searched, must be prosecuted. 23. This court has noticed the fact that the applicant being Investigating Officer in Case Crime No. 202 of 2003, arrested the respondent/accused persons and recovered the contraband substance, i.e., 1 KG Charas from them and therefore the First Information Report was lodged and thereafter the matter was investigated and chargesheet was filed. The trial Court had also taken cognizance and issued summons and the matter is still pending consideration. But one thing is clear that at the first hand, the respondent accused persons are found involved in committing offence and they were chargesheeted. So far as the chargesheet filed against the applicant is concerned, that does not disclose that whether Section 69 of the Act, 1985 has been taken care of by the investigating agency, who has submitted the chargesheet against the applicant under Section 58 of the Act, 1985 is a protection to the action of an officer, who acted in a ‘good faith’. 24. 24. In view of the aforesaid backgrounds, the issues are cropped up; one is that whether, in a case, where the chargesheet has been filed against an accused for offences under the Act, 1985, but without completion of the trial proceeding, the police officer or any authority can be prosecuted for offences prescribed under section 58 of the Act, 1985 and secondly, that whether the protection, which were given to an officer under Section 69 of the Act, 1985 can be ignored by any of the investigating agency, in any eventuality. 25. As far as the first issue is concerned, it is clear from the fact of this case that after the applicant proceeded against the accused persons and recovered the contraband substance against them, thereby collecting the evidence, the investigating agency, i.e., CBCID without recording any reason that the act of the applicant is not in a good faith, proceeded in the matter and filed the chargesheet for the other offences than provided in Section 58 of the Act, 1985, which in the opinion of this Court is against the mandate of Section 69 of the Act, 1985. If the provision of Section 58 of the Act, 1985 is given in the act so as to protect the accused from the stringent action, then on the other hand, the officer who acts under Section 42, 43, 44 of the Act, 1985, has also been given protection under Section 69 of the Act, 1985. No doubt that a proceeding under Section 58 of the Act, 1985 can be invoked, but what would be the stage, is the foremost question. While searching out the answer, it is overt from the bare reading of the provision that the Court before whom the criminal proceeding against an accused is running, comes to the conclusion that entry, search, seizure or arrest was either vexatious or unnecessary or a case of unnecessary detention, he shall be prosecuted with the punishment provided under Section 58 of the Act, 1985. 26. In the instant matter, the First Information Report has been lodged under Section 342, 379, 427, 468, 471, 120(B) of IPC and under Sections 8/20/29 of the NDPS Act, against the applicant but the allegation against the applicant is that he has falsely implicated the opposite party no. 3 by showing false seizure of the contraband substance, from his possession. In the instant matter, the First Information Report has been lodged under Section 342, 379, 427, 468, 471, 120(B) of IPC and under Sections 8/20/29 of the NDPS Act, against the applicant but the allegation against the applicant is that he has falsely implicated the opposite party no. 3 by showing false seizure of the contraband substance, from his possession. For the aforesaid allegations, the punishment is provided under Section 58 of the Act, 1985 and being an Special Act, the prosecution of such an officer can be done by following the procedure of law but so far as the criminal proceeding initiated against the applicant is concerned, it was done ignoring the provision of Section 69 of the Act, 1985 and therefore, the criminal proceeding arising out of Case Crime No. 67 of 2005 is erroneous. 27. This Court has also taken note of the fact that after investigation in Case Crime No. 202 of 2003, the charge-sheet was filed against the opposite party no. 3 and thereafter the charges have also been framed and thus, the story which has been narrated by the opposite party no. 2, prima facie, seems to be incorrect. 28. In view of the aforesaid submissions and discussions, the entire criminal proceedings arising out of Case Crime No. 67 of 2005 under Section-342, 379, 427, 468, 471, 120(B) of IPC and under Section 8/20/29 of the N.D.P.S. Act pending before learned Additional Session Judge, F.T.C.- II, Bahraich are hereby quashed. 29. It is open to the prosecution to proceed further against the applicant, in accordance with law. 30. The instant application is hereby allowed.