Himachal Pradesh High Court

Ram Lal vs Narcotics Control Bureau on 1 March, 2023

Bench: Sushil Kukreja

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                           Cr.MMO No.1158 of 2022
                                           Date of decision: 01.03.2023

    Ram Lal                                                         ....Petitioner




                                                                      .
                                         Versus





    Narcotics Control Bureau, Sub Zone, Mandi                       ....Respondent





    Coram:
    The Hon'ble Mr. Justice Sushil Kukreja, J.

Whether approved for reporting ?1

For the Petitioner: Mr. B.L. Soni, Advocate.

For the Respondent: Mr. Ashwani Pathak, Senior Advocate with Mr. Dev Raj, r Advocate.

Sushil Kukreja, Judge(Oral):

This petition has been filed for quashing criminal

proceedings in Complaint No.151 of 2019/(122/18) titled as

NCB vs. Ram Lal, pending in the Trial Court, i.e. learned Special

Judge-II, Kullu, H.P. against the petitioner Ram Lal, in NCB

Crime No.41 of 2014, dated 20.10.2014, initiated in pursuance

to supplementary report under Section 173(8) Cr.P.C submitted

by Narcotics Control Bureau (NCB) under Sections 8, 20 & 29 of

Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act').

Whether the reporters of Local Papers may be allowed to see the judgement?

2. The brief facts of the case are that on 20.10.2014,

on the basis of secret information, a team of NCB,apprehended

Nilmani alias Nilu along with 19.780 kilograms charas. During

investigation, NCB also found complicity of one Khekh Ram, but

said Khekh Ram did not join investigation and absconded and

proceedings for declaring him as proclaimed offender were

initiated and complaint against Nilmani was filed in the Court.

During pendency of aforesaid proceedings against Nilmani,

Khekh Ram surrendered on 02.06.2015 and supplementary

complaint was filed against him.

3. Nilmani and Khekh Ram were convicted by learned

Special Judge. They filed separate appeals against their

conviction. Besides other grounds of appeal, Khekh Ram in his

Criminal Appeal No. 450 of 2016, had also contended that there

was no provision either in Code of Criminal Procedure (Cr.P.C)

or in NDPS Act, for filing supplementary complaint and,

therefore, complaint filed against him was not maintainable.

4. Allowing criminal appeal of Khekh Ram, a Division

Bench of this Court vide judgment dated 29.12.2017, passed in

Criminal Appeal No. 450 of 2016, titled as Khekh Ram vs.

NCB, reported in 2018(1) Shim.LC 219, has held as under:-

"34. From the conspectuous 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. Therefore, the trial on the basis of such supplementary complaint

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."

5. Later on, NCB collected further evidence and on the

basis of that found complicity of Amar Nath and Mohar Singh in

commission of offence along with Nilmani alias Nilu and on the

basis of further investigation filed supplementary complaint

No.79 of 2019 against them. Mohar Singh assailed order dated

30.08.2019 of framing of charges against him by filing a petition

under Section 482 of Cr.P.C, which was directed to be converted

into Criminal Revision No. 209 of 2020 vide order dated

27.08.2020, passed by this Court. Amar Nath also assailed

order of framing of charges against him by filing a petition under

Section 482 of Cr.P.C which was registered as Cr. Misc. Petition

(Main) No.385 of 2022.

6. After taking into consideration and relying upon the

judgment passed by Division Bench of this Court in Khekh

Ram's case supra, and after referring to the judgment passed in

Vinubhai Haribhai Malaviya and others vs. State of Gujarat and

another (2019) 17 SCC 1, a Coordinate Bench of this court has

quashed complaint No. 79 of 2019, titled as NCB vs. Amar Nath

and another, against Mohar Singh, being not maintainable

holding that continuation of complaint against Mohar Singh

before learned Special Judge would be an abuse of process of

Court. The court also quashed the proceedings against Amar

Nath vide order dated 23.09.2022, passed in Cr. Misc. Petition

(Main) No.385 of 2022 being not maintainable.

7. Therefore, now proceeding in the said complaint is

pending against present petitioner Ram Lal only. He was

arrested on 06.05.2018.On the basis of supplementary

complaint, Court took cognizance against him on 30.10.2018

and learned Special Judge-II, Kullu, framed charges under

Sections 20 and 29 of the NDPS Act,1985 vide order dated

08.04.2019 against him. Feeling aggrieved by orders dated

30.10.2018 and 08.04.2019 and subsequent proceedings

passed by learned Special Judge-II, Kullu, petitioner has

preferred the present petition. It has been submitted by learned

counsel for the petitioner that the case of the petitioner is

identical to that of Mohar Singh and Amar Nath, who were the

co-accused with him in this criminal complaint.

8. Mr. Ashwani Pathak, learned arguing counsel,

representing NCB, under instructions, has submitted that no

reply is intended to be filed to the present petition .He further

submitted that judgments in Khekh Ram's as well as Nilmani's

cases supra, have not attained finality and NCB has assailed

the said judgments by preferring separate Special Leave

Petitions before the Supreme Court and in the case of Khekh

Ram, after grant of leave to appeal, appeal preferred by NCB

has been registered as Criminal Appeal No. 497 of 2019.

Admittedly, judgment passed by Division Bench of this Court in

Khekh Ram's case, under challenge in Criminal Appeal No. 497

of 2019, has not been stayed by the Supreme Court as such

the same is binding on this Court unless and until the same is

either stayed or set aside by the Supreme Court.

9. Hon'ble Supreme Court in Vinay Tyagi vs. Irshad

Ali alias Deepak and others (2013) 5 SCC 762, has held as

under:-

"40.5 The Code is a procedural document, thus, it must receive a construction which would advance the

cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to

curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation

which it could do on its own.

40.6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary charge-sheet. This approach has been approved by

this Court in a number of judgments. This as such would support the view that we are taking in the present case.

.... .... ...

48...What ultimately is the aim or significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the

investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means

in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and

.

in violation of the settled principles of investigative

canons.

49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have

been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct 'further investigation'

or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct 'further

investigation' and file 'supplementary report' with the

leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct 'further investigation' and/or to file a

'supplementary report' will have to be read into, and is a necessary implication of the provisions ofSection 173(8) of the Code. The doctrine of contemporanea exposition will fully come to the aid of such

interpretation as the matters which are understood and implemented for a long time, and such practice

that is supported by law should be accepted as part of the interpretative process.

50. Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore-noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would

be permissible with the aid of doctrine of contemporanea exposition. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused."

10. Three Judges Bench of the Supreme Court in

Vinubhai Haribhai Malaviya's case, referring previous judgments

of the Supreme Court in Sasikiri Vasu vs. State of U.P. (2008)

2 SCC 409; Samaj Parivartan Samudaya vs. State of

Karnataka (2012) 7 SCC 407; Vinay Tyagi's case supra; and

Hardeep Singh vs. State of Punjab (2014) 3 SCC 92, has

reiterated that though criminal trial does not begin after

cognizance is taken and it begins only after charges are framed,

however, a fair and just investigation would lead to conclusion

that police retain the power to further investigate an offence

under Section 173(8) Cr.P.C before pre-trial proceedings as well

as after beginning of the trial, but subject to Magistrate's nod.