Single judge dismissed bail petition under Cr.P.C. The court held that although the Investigating Officer was also the complainant, this did not viciate the case enough to relax the statutory bar under Section 37 of the NDPS Act which prohibits bail in commercial quantity cases prima facie.
Criminal petition for enlargement of bail dismissed.
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.
HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL PETITION No.2718 of 2017
ORDER:
This Criminal Petition, under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is filed to enlarge the petitioner/A.1 on bail in Crime No.59 of 2016 of Hukumpeta Police Station, Visakhapatnam, registered for the offence punishable under Sections 8(c) read with 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’), as he is in judicial custody since 17.12.2016.
MSM, J Crl.P.No.2718 of 2017
ganja found in possession of the accused is 30 kgs. worth Rs.60,000/and seized the same and the persons made negotiations about ganja rate and also tried to give cash of Rs.10,000/-. On the strength of the report, a crime was registered for the offence punishable under Sections 8(c) read with 20(b)(ii)(C) of the Act.
1 (2010) 15 SCC 369
MSM, J Crl.P.No.2718 of 2017
2 AIR 1999 SC 2378
MSM, J Crl.P.No.2718 of 2017
“Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the prupose of (a) certifying the correctness of the inventory so prepared; or (2) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.”
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“The learned counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megna Singh v. State of Haryana (1996) 11 SCC 709, this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under:
"4. ........ We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
The ratio of Megna's case has been followed by other cases.
3 (2010) 15 SCC 369
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In another case in Balasundaran v. State 1999 (113) ELT 785 (Mad), in para 16, the Madras High Court took the same view. The relevant portion reads as under:
"16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated."
The judgment relates to conviction of an accused in criminal appeal, but not in consideration of bail petition.
the Megha Singh v. State of Haryana4 , the Investigating Officer himself being a complainant could not have proceeded with the investigation and therefore it is vitiated.
4 (1996) 11 SCC 709
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and seizure of contraband from the said vehicle, but did not record any statements further. Therefore, Circle Inspector of Police, being a complainant and Investigating Officer, though not competent, but for granting bail, this is not a ground in view of the bar under Section 37 of the Act. Section 37 of the Act mandates recording of satisfaction of this Court by the petitioner that there is a reasonable ground to believe that the petitioner did commit no office punishable under the provisions of Act where commercial quantity is involved and that there is no possibility of similar offences while on bail. Here, in this case, the material on record shows that the petitioner committed an offence, prima facie and quantity involved is commercial quantity, therefore, in view of the bar under Section 37 of the Act, it is difficult to conclude at this stage that the petitioner is entitled for enlarge of bail in view of the law declared by the Apex Court in State of Madhya Pradesh v. Kajad5 .
18th April 2017. mar
5 AIR 2001 SC 3317
_________________________________ M. SATYANARAYANA MURTHY, J
2 issues framed by the court
Whether bail can be granted under Section 439 Cr.P.C. to an accused charged with commercial quantity of narcotic drugs where the Investigating Officer was also the complainant.
Whether non-compliance with Section 50 and Section 53-A of the NDPS Act vitiates the investigation enough to grant bail under Section 37 of the Act.
Colour shows how this judgement treated each authority
State of Tamil Nadu v. RajangamReferred¶8
State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Rajangam (2010) 15 SCC 369 · Who else cites this
State of Punjab v. Baldev SinghReferred¶13
The State of Punjab v. Baldev Singh 2 AIR 1999 SC 2378 · Who else cites this
Megha Singh v. State of HaryanaFollowed¶35
Megna Singh v. State of Haryana (1996) 11 SCC 709 · Who else cites this
Balasundaran v. StateReferred¶31
Balasundaran v. State 1999 (113) ELT 785 (Mad)
State of Madhya Pradesh v. KajadApplied¶40
State of Madhya Pradesh v. Kajad 4 AIR 2001 SC 3317 · Who else cites this
5 provisions across 2 enactments
A.1 (Petitioner)
Inspector of Police, Narcotic Intelligence Bureau
M. Satyanarayana Murthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
