The High Court dismissed the appeal filed by a bail-seeking accused against the Single Judge's order refusing to transfer a drug investigation to the Police. The Court held that an accused cannot choose the investigating agency and that disputed facts regarding false implication are not for the writ court to decide.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941
WA.No.288 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 12551/2019(T) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
VISAKHMON
AGED 25 YEARS
S/O. SUJITHKUMAR,'VISAKHAM', SAKTHIKULANGARA P.O., KOLLAM-691 581
BY ADV. SRI.SHABU SREEDHARAN
RESPONDENTS/RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, VAZHUTHAKKAD P.O., THIRUVANANTHAPURAM-695 014
2 THE EXCISE COMMISSIONER, KERALA EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM-695 033
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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(C.R.)
JUDGMENT
Dated this the 24th day of February, 2020
S.Manikumar, CJ
Instant writ appeal is filed against the judgment passed by a learned Single Judge of this Court dated 06.01.2020 in W.P.(C) No.12551 of 2019. The reliefs sought for in the writ petition are as under:
“W.P.(C) No.12551 of 2019 is filed seeking to direct the 2nd respondent - the Excise Commissioner, Thiruvananthapuram, to transfer investigation in Crime No.1/2018 of Karunagappally Excise Range, Kollam District to the police under the 1st respondent- the Director General
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of Police, and also seeking consequent reliefs. When the writ petition came up for hearing on 06.01.2020, appellant pressed for the reliefs sought in the writ petition. But, without properly considering the facts and circumstances of the case, writ court dismissed the same. Being aggrieved and totally dissatisfied with the said judgment, the appellant has preferred this writ appeal before this Court at this stage seeking appropriate reliefs.”
“10. The accused can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, the accused can avail the appropriate remedies permissible under law such as seeking bail. During the trial of the case, the accused can opt for the remedy of discharge at the appropriate stage. He can also opt for quashing of the criminal case, if there is no legal evidence whatsoever, to indicate his complicity in the commission of the offence.
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will prove the said fact. The scooter was actually ridden to the said place near Edappallykkotta by the above said excise official. The evidence of CCTV footage will prove the said fact.
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stage itself. It is highly paradoxical on the part of the learned single judge in saying that the courts have only limited power to interfere with the investigation of a case. The appellant has not sought any relief so as to direct the investigating officer to investigate case from a particular point of view. There is no merit in the observation of the learned single judge that the court cannot issue directions to the investigating officer to investigate case from a particular point of view.
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investigation. What the learned single judge observed about the remedies at different stages during the investigation as well as the trial of the case are devoid of any merit.
the Investigating Officer, filed before the writ court:
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“ It is submitted that the statement is being filed by the investigation officer R. Bijukumar, Circle Inspector of Excise,Karunagappally in Cr. No. 01/2018 of Excise Range Office,Karunagappally on behalf of the second respondent, as he is duly authorized by the second respondent, the Commissioner of Excise pursuant to the direction of this Honourable Court in the above case.
The prayers in the writ petition are not maintainable either on law or facts.
On 05/01/2018, at about 12.Noon, Sri. P.A.Sahadulla, Excise Inspector, Excise Range Office, Karunagappally and party detected an NDPS case from Pooroorkkara in Panmana village in Karunagappally Taluk, while on Patrolling and checking vehicles, seized 2 Kilo gram of Ganja in KL 02 BC 3076 Honda Scooter and arrested VishakhMon as first accused from the spot. Samples were collected; thondy articles were properly sealed and labeled. After preparing mahazar and other records, party reached the Second spot as per the confession statement of the first accused Visakhmon. The second spot was the rented house of second accused Rakhi Latha owned by Santhosh, S/o. Chandra sekharan Pillai, Santhosh Bhavan, Mathilil, Thrikkadavoor Village, Kollam Taluk, from where the Excise Inspector and party seized 3 Kilo gram Ganja and arrested Rakhilatha as Second accused at 2.40 PM. The second accused is the elder sister of the first accused's mother. After collection of Samples,thondy articles were properly sealed and labeled and taken into excise custody. After preparing mahazar and other records, party reached the office with the first and second accused, thondy articles and
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case records. This case was registered at Excise Range Office, Karunagappally as NDPS Crime No. 01/2018 U/s 20(b)(ii)B of NDPS Act 1985. After conducting a detailed medical checkup both the accused along with thondy articles and case records were produced before the Hon'ble court. The accused were remanded into judicial custody and presently both the accused are on bail, granted by the honourable court.
The second accused Rakhilatha and her husband Stephan are frequent NDPS offenders. The first accused, being the close relative of this couple, was a close associate in their ganja sale. The first accused become the main partner of the second accused after her husband's judicial custody in another NDPS case while detecting this case. As the couple was habitual offenders in NDPS cases, they both were under the close surveillance of the enforcement authorities. So they started using the first accused for the transaction of ganja to other ganja sellers at various places and this was the first instance in which the first accused was caught.
Presently this case is under the investigation of Excise Circle Inspector, Karunagappally and it is reaching at its final stage now. After detection of this case, the first accused raised many complaints against the detecting team. The first complaint was enquired by the Assistant Excise commissioner Kollam and he reported this complaint as worthless. Another complaint was forwarded to the Excise Commissioner and was enquired by the Excise Vigilance officer who was also found this complaint as baseless. Both the officers conducted enquiry on the
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complaints are superior to the present investigating officer and the vigilance officer is equivalent to the rank of Superintendent of Police. Since the findings of both the officers investigated the complaints are not in his favor, this application before the honourable court is seems to be anther attempt by the accused to delay the investigation process, which is at its final stage.
The First accused Visakhmon filed another petition before the honourable Human Rights Commission of Kerala and the Commission dismissed the petition finding it as baseless.
More over the frequent questioning and enquiries conducted by the officials causes tremendous mental pressure on the detecting team and such practices may act as a demoralizing factor on the officials of the department who performs selflessly for such seizure.
The enquiry conducted so far and the statements recorded from the public witnesses reveals that, the accused Visakh Mon has a major role in transporting and distribution of Ganja in Karunagappally area. Investigation of this case is at its final stage and almost completed. Hence it is humbly reported before the honourable court that the present investigation is going on in a very professional and speedy manner and will be completed soon. Changing of the investigating officer is not at all necessary at this stage. The Excise Department is a small department and have a very few in number of officers of the rank equivalent to Superintendent of Police. It always not practical to entrust them with the enquiries of cases demanded by the accused, as they all are engaged with
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many other responsibilities entrusted upon them. More over such practices will badly affect the morality of officers who carry out their duties with great dedication to eradicate the drug mafia trying to spread over the state.
There is no necessity in entrusting the enquiry of this case to a higher officer, which will only delay the process of filing the complaint report before the Honourable Court, which is the aim of the petitioner. Hence I humbly request that, the honourable court may kindly dismiss the writ petition filed by the accused.
Bijukumar.R 23rd September 2019 Circle inspector of Excise Karunagappally”
the writ court, with reference to the reliefs sought for.
“8. In Narmada Bai v. State of Gujarat: AIR 2011 SC
1804 , the Hon'ble Supreme Court held as follows:
“It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them”
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offences he is charged with (See Central Bureau of Investigation v. Rajesh Gandhi : AIR 1997 SC 93) . The accused cannot ask for changing the investigating agency or to do investigation in a particular manner (See Romila Thapper v. Union of India : AIR 2018 SC 4683) .”
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false registration is disputed. If there is dispute in facts, which requires evidence, writ court is not the proper forum. Reference can be made to few decisions.
“(a) In Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad and Ors. reported in (1976) 1 SCC 292, the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Hon'ble Supreme Court.
(b) In the decision reported in (2003) 4 SCC 317 ( Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr. ), it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Hon'ble Supreme Court held as follows:
“19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 was essentially a question of fact....”
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“(c) In Himmat Singh v. State of Haryana and Ors . reported in (2006) 9 SCC 256, the Hon'ble Supreme Court held that,“the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained.”
(d) In Food Corporation of India v. Harmesh Chand reported in (2007) 7 MLJ 687, the Hon'ble Supreme Court held as follows:
(e) In D. L. F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn. reported in (1976) 3 SCC 160, the Hon'ble Supreme Court held thus:
“18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The rights course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark
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upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit.”
Writ appeal is, therefore, dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE
Sd/SHAJI P.CHALY JUDGE
shg
3 issues framed by the court
Whether the High Court can direct the transfer of an investigation from Excise to Police and appoint a superior officer for reinvestigation.
Whether an accused has a right to demand a change in the investigating agency or officer.
Whether disputed questions of fact regarding false implication can be entertained in a writ appeal.
Colour shows how this judgement treated each authority
Narmada Bai v. State of GujaratReferred¶8
Narmada Bai v. State of Gujarat : AIR 2011 SC 1804 · Who else cites this
Sanjiv Rajendra Bhatt v. Union of IndiaReferred¶8
Sanjiv Rajendra Bhatt v. Union of India : (2016) 1 SCC 1 · Who else cites this
Central Bureau of Investigation v. Rajesh GandhiReferred¶8
Central Bureau of Investigation v. Rajesh Gandhi : AIR 1997 SC 93 · Who else cites this
Romila Thapar v. Union of IndiaReferred¶8
Romila Thapar v. Union of India : AIR 2018 SC 4683 · Who else cites this
Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad and Ors.Referred¶90
Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad and Ors. : (1976) 1 SCC 292
Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.Referred¶91
Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr. : (2003) 4 SCC 317 · Who else cites this
Steel Authority of India Ltd. v. National Union Waterfront WorkersReferred¶93
Steel Authority of India Ltd. v. National Union Waterfront Workers : (2001) 7 SCC 1 · Who else cites this
Himmat Singh v. State of Haryana and Ors.Referred¶95
Himmat Singh v. State of Haryana and Ors. : (2006) 9 SCC 256 · Who else cites this
Food Corporation of India v. Harmesh ChandReferred¶96
Food Corporation of India v. Harmesh Chand : (2007) 7 MLJ 687
D. L. F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn.Referred¶98
D. L. F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn. : (1976) 3 SCC 160 · Who else cites this
Visakhmon
The Director General of Police
The Excise Commissioner
P.A Sahadulla
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
