ORDER
1. An interesting substantial legal question, propagated by Mr. K. Asokan, learned Counsel, however, almost already settled, in seeking the admission of this revision, to canvass the propriety and legality of the impugned order passed by the learned Special Judge, Special Court (N.D.P.S. Act), Madras in C.C. No. 418 of 1995, dated 8-7-1996, is extracted hereunder :
“Is the Assistant Director, Narcotics Control Bureau, South Zone, Madras competent to get permission from the Court under the N.D.P.S. Act for further investigation of a complaint filed under Section 200 of the Code of Criminal Procedure and if so, whether the Special Court is competent to grant such permission ?”
2. On 10-4-1995 the Office of the Narcotics Control Bureau, Madras, is said to have received a fax message from the Drug Liaison Officer, Her Majesty’s Customs & Excise, Bombay, regarding the seizure of 20,34,000 Mandrax tablets in the Kingdom of Swaziland and this consignment is said to have been sent from India and since the goods attracted the definition of Narcotic Drugs and Psychotropic substances Act, a case in F. No. 48/1/3/95/NCB/MDS was registered by the Assistant Director, Narcotics Control Bureau South Zonal Unit, Madras, the respondent herein. During the course of investigation it was found that the said goods have been sent by M/s. K.J. Exports at 36, Seventh Street, Sashtri Nagar, Madras-20 in the guise of clear bulbs to a company by name M/s. Dynamic Electronics Private Limited, P.O. Box. No. 6730, Anneferre, South Africa, Pursuant to the investigation conducted in India, a complaint in C.C. 418 of 1995 was filed in the Special Court for N.D.P.S. Act cases, Madras against four persons by name Arif U. Patel, Y. V. Nagaraj, G. N. Venugopal and Arumugham. The Special Court took it on file and a charge for the offence under Section 8(c) punishable under Section 23 of N.D.P.S. Act was framed.
3. The Officers of the Narcotics Control Bureau are working in Unison with Interpol and other agencies to fight drug trafficking pursuant to the Vienna convention, to which, India is a signatory. They gathered intelligence that the petitioner herein is likely to visit India. In the context of the telefax message received, followed by the investigation done by the respondent and the contents made in the complaint viz., “during the course of investigation in India and abroad according to law, on scrutiny of documents seized in searches and otherwise and from statements recorded from the persons concerned in India and abroad, it has come to light that A.1 to A.4 and other persons known and unknown based in India and abroad had committed an offence under the N.D.P.S. Act…” the respondent filed a petition before the Special Court for N.D.P.S. Act cases on 8-7-1996 for a formal permission to conduct further investigation in this case and accordingly, obtained the permission.
4. The application above referred to was filed under Section 173(8) of the Code of Criminal Procedure. The verbatim narration of the same is hereunder :
“Application under Section 173(8) Cr.P.C.
In the above case, complaint was filed and charges have been framed against the accused by this Hon’ble Court on 16-2-1996 and the case is now under trial.
Now, there is definite information that out of some persons who were parties to the criminal conspiracy and referred in the complaint ‘as other persons known and unknown based in India and abroad’ are now available in India. Their complicity in this offence has also been mentioned in the telefax message received from Interpol, South Africa through British Drug Liaison Officer, Bombay which Forms part of the record in this case in this Hon’ble Court.
It is submitted that Umar Abdul Shakoor Sorathia importer of the consignee of Mandrax into Mozambique, illicitly exported out of India, is now available in India and therefore, to bring out the involvement and complicity of the said Umar Abdul Shakoor Sorathia and other persons, he is necessarily to be interrogated. This part of the investigation is to be carried out in secrecy and any leakage of the message will alert the said person who will definitely flee from India. Therefore, in the interest of justice in order to bring out the nature of involvement of the said person and others, this Honourable Court may be pleased to grant permission to further investigate under Section 173(8) Cr.P.C. and submit further reports thereof.
Dated at Madras this the 8th July, 1996″.
5. On the same day i.e. on 8-7-1996, when the above petition was filed learned special Judge for N.D.P.S. Act cases, Madras has passed the following order :
“Petition to grant permission to further investigation under Sec. 173(8) Cr.P.C. and submit further reports thereon.
This petition coming on this day for hearing before me upon perusing the material papers on record and in the presence of Thiru P. N. Prakash, Central Govt. Public Prosecutor, for complainant, this Court made the following
ORDER
Received this day the 8th July, 1996 and keep it in sealed cover in safe custody and permitted.
Dated this the 8th day of July, 1996″.
It is the order which is being challenged in this revision, which is pending admission for canvassing its legality and propriety.
6. It appears further from the case records and the written submissions made on behalf of the respondent that the telefax message above referred to was sent to the British Liaison Officer by one C.J.D. Venter, Brigadier in South African Police and in the said fax message, he has given particulars about the various trips made to Mozambique by Mr. Arif Patel, which would be relevant to show his involvement in the illicit export. The name of the revision petitioner herein is also referred to as a person who is the importer of Mandrax tablets in Mozambique and the petitioner’s business address has been given as Miami travel and tours and under the bill of entry, the importer of the consignment is shown as Dynamic Electronics Limited, South Africa. The message of C.J.D. Venter has not thrown any light with regard to the connection between Umar Abdul Shakoor Sorathia and M/s. Dynamic Electronics. In the absence of any material to show the connection between the Dynamic Electronics and Umar Abdul Shakoor Sorathia, the [involvement] of Umar Abdul Shakoor Sorathia necessarily required further probe. The respondent in unison with Interpol and other agencies to fight drug trafficking pursuant to the Vienna convention gathered intelligence through secret Sources, which would reveal that the petitioner was likely to visit India during July, 1996 and when it became imminent that the revision petitioner was likely to come to India, the respondent approached the Special Court for a case under N.D.P.S. Act, Madras, and filed the above petition on 8-7-1996 for a formal permission to conduct further investigation in the matter of [involvement] of the petitioner in the importing of the consignment sent from India. In the said petition, a specific request was made to the Special Judge to keep the petition and the orders passed thereon in a sealed cover, because it was apprehended that if the petition was placed for the scrutiny of all the accused who were facing trial in C.C. No. 418 of 1995 would normally get scent of it and would surely alert the petitioner and others to prevent his coming to India. It was thus occasioned the Court below to pass an order permitting the complainant to carry on with further investigation with a direction to keep the petition and the orders passed thereon in a sealed cover. After having obtained the permission for further investigation, the respondent made a request on 10-7-1996 to the Director-General of Narcotics Control Bureau, New Delhi, to issue a red alert to all the International Airports in India to mount surveillance on the petitioner’s movement and on 22-7-1996, the Superintendent of Narcotics Control Bureau of Bombay Unit, Identified the petitioner and gave him the summons to appear before him under Section 67 of the N.D.P.S. Act. On the basis of the summons, he gave a statement, from which, it came to be known that he is directly involved in the commission of the Offence of consignment of commodity specified under N.D.P.S. Act. When the consignment was intercepted, the link between the illicit export by K.J. Exports, from India and the person who actually got cleared the illicit export came to be identified and fixed viz., the petitioner herein. The fact remains that the importer, M/s. Dynamic Electronics as per records is a non-existent person and the exporter is a concern floated just for the purposes of illicit export of Mandrax tablets and the petitioner cleared the goods on behalf of the non-existent concern in South Africa. It is made known that the petitioner is fully involved in the said deal as revealed from his statement, and he is the partner in Miami Tours and Travels. Under the above circumstances, the petitioner was arrested on 23-7-1996 and remanded by the Chief Metropolitan Magistrate, Bombay, who forwarded him to the Special Court for N.D.P.S. Act cases, Madras who in turn, gave him for the departmental custody to the respondent and now he is under the periodical remand for every 15 days since further investigation is in progress.
7. In the above backdrop, I have heard the Bar for the revision petitioner assailing the impugned order and the contra from the respondent through its counsel justifying the same.
8. The main plank of attack made by Mr. K. Asokan, learned counsel for and on behalf of the revision petitioner is that Section 173(8) of the Code of Criminal Procedure has no application to the Officers of Narcotics Control Bureau, because they do not file a final report under Section 173(2) of the Code of Criminal Procedure, 1973 and since they do not have powers under Section 173(8) of the Code, they cannot conduct further investigation when they had filed the complaint before the Special Court. He also contended further that once a complaint has been filed and the cognizance of the offences under the provisions of N.D.P.S. Act has been taken, a new accused can be roped in only by virtue of Section 319 of the Code of Criminal Procedure and certainly not by otherwise. In other words, learned counsel would contend that the impugned order passed by the learned Special Judge is a non-speaking one in the context that any order passed by the Court of law without reasoning and grounds is deemed to be void in law and therefore, the impugned order is manifest for its character of non-speaking and on this ground alone the impugned order has become vitiated. While assailing the impugned order, Mr. K. Asokan, learned counsel for and on behalf of the revision petitioner, placed much reliance in the case laws held by the Supreme Court and dwelt his main [throng] of attack on the ground that either the respondent or the Court below has no competency to seek permission or grant permission to further investigate the case which has already been taken cognizance of for the offences under the provisions of N.D.P.S. Act, by virtue of Section 173(8) of the Code of Criminal Procedure. Following the ratio held by the Supreme Court, the learned counsel would submit, that the impugned order passed by the Court below would clearly become incompetent and as such it has to be set aside as totally vitiated.
9. While controverting the said contentions with every vehemence, it was strenuously contended by Mr. P. Rajamanickam, learned counsel for the respondent that in the context of the factual aspect referred to above and in the context of the scope and object of the very enactment in dealing with the menace of trafficking in drugs in the international scenario, when our country happens to be a signatory to the vienna convention, the provisions of amended Act have come into effect and therefore, while considering the nuggets of the instant case, the very object and scope of the amended enactment cannot at all be ignored and if the same analogy is kept in mind and the whole matter is looked into in this view, according to the learned counsel, the granting of the prayer of permission to investigate further to nab the brain behind the whole [episode], who is the foreign national, has become necessary and it is perfectly correct and within the legal competence. He would further contend that while agreeing the concept that the investigating agency specially empowered to investigate the cases under N.D.P.S. Act and to file a report, in the instant case, Narcotics Control Bureau, is not a police within the meaning of the Code, once the respondent is empowered to investigate the case and file the complaint, on the materials collected during the course of investigation, the respondent is certainly empowered to further investigate whenever it comes across with any other new facts in connection with the old one, which is pending trial under the same logic and analogy of power of the police provided under Section 173 of the Code. Therefore, learned counsel would submit that the Narcotics Control Bureau being an independent investigating agency and not being the police, under the Code of Criminal Procedure, is certainly empowered to conduct further investigation when it comes across with new facts to nab the culprits. To substantiate the above contentions, learned counsel placed strong reliance upon the case-laws held by the Supreme Court as well as by this Court. In short to say, learned counsel would contend that this revision lacks every merit and event if it is to be taken, it is merely on technicality which does not affect the rights of the party, nor cause any prejudice and for the said reasonings, this revision involves no legal matter to be probed further.
10. In the light of the said rival position, the only question that arises for consideration is whether the impugned order passed by the Court below is vitiated for want of legal sanctity or propriety, in the sense that the respondent has no competency to ask for permission to investigate further under Section 173(8) of the Code and if so, whether the Court below has granted permission without any power to do so ?
11. As the whole matter involves the question of law pertaining to the procedure to be followed by the Special Court constituted for trying the offences under N.D.P.S. Act, the whole procedure has to be traced which is mandated for the purpose of investigation and conduction of the trial. Needless to say at this stage, the respondent herein is one of the investigating agencies specially empowered to investigate the offences under N.D.P.S. Act by the Central Government in consultation with the State Government pursuant to Section 53 of N.D.P.S. Act and accordingly, on receipt of the telefax message on 10-4-1995, the respondent swung into the action and in accordance with the procedure, the respondent investigated the case and filed the complaint before the learned Special Judge under N.D.P.S. Act against four accused which is pending in C.C. 418 of 1995 and after issuance of processes, charges under Section 8(c) read with Section 23 of the N.D.P.S. Act were also framed. A scrutiny of the complaint filed in this case under Section 36 of the N.D.P.S. Act by the respondent, particularly, Paragraph 7 would show that the persons shown as accused 1 to 4 had committed the offence along with other persons known and unknown based in India and abroad. This complaint filed by the respondent was taken on file and the cognizance of the offence was taken. On 8-7-1996, the petition extracted above appears to have been filed by the respondent seeking permission from the trial court to investigate further with regard to the intelligence gathered in respect of the alleged involvement of the revision petitioner herein in the same offence and accordingly, the permission, was granted by passing the impugned order.
12. The main plank of attack raised by Mr. K. Asokan on behalf of the revision petitioner is that either the respondent or the Court below has no power to ask for permission to seek further investigation or to grant any permission to further investigate in this matter as the complaint against the four accused persons had already been taken cognizance of. Learned counsel seems to have emphasized the above contention presumably on the basis that the respondent, Narcotics Control Bureau, an independent agency, is not a police at all warranting into file a final report in the Court under Section 173(1) or (2) of the Code of Criminal Procedure, nor to seek permission under Section 173(8) of the Code, and if the respondent is not a Police Officer to investigate the offences under N.D.P.S. Act, certainly, the respondent will not be entitled to file any final report as provided under Section 173 of the Act, much less to say, the respondent will not be entitled to seek any permission under Section 173(8) of the Code. This being the position, according to the learned counsel, the impugned order has become incompetent and invalid and consequently, all further investigation done by the respondent is deemed to have been a non-est.
13. Reliance was placed by the learned counsel on a case held in Raj Kumar Karwal v. Union of India – . While dealing with the characteristic nature of the investigating Officer or the power vested with the Officer to investigate under Section 53 of N.D.P.S. Act in conjunction with Section 25 of the Evidence Act. Their Lordships of the Supreme Court, after having adverted to various case-laws ruled the following :
“Section 25 of Evidence Act which engrafts a wholesome protection must not be construed in a narrow or technical sense but must be understood in broad and popular sense. But at the same time, it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. The importance attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Section 173 of the Code. Unless an Officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘police officer’ under Section 25, Evidence Act. The Officer, other than a police officer, invested under Section 53 of the 1985 Act with powers of an officer-in-charge of a police station, is not entitle to exercise ‘all’ the powers under Chapter XII of the Criminal P.C. including the power to submit a report or charge-sheet under Section 173 of the Criminal P.C. That being so, such Officer is not a ‘police officer’ within the meaning of Section 25 of Evidence Act. There is nothing in the provisions found in Chapter V of the 1985 Act to show that all the power under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-in-charge of a police station under Section 53, for the purpose of investigation of offences under the Act. The Act was enacted for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Under Section 41, 42, 43, 44 and 49 of the Act certain powers of arrest, search and seizure have been conferred on certain officers of different departments. If the arrest or seizure is made pursuant to a warrant issued under Section 41(1), the person arrested or the article seized has to be forwarded to the Magistrate with despatch. If the arrest or seizure is made under Section 41(1), 42, 43 or 44 the person arrested or the article seized has to be forwarded to the officer-in-charge of the nearest police station or the officer empowered under Section 53 of the Act. Special procedure has been prescribed for the disposal of narcotic drugs and psychotropic substances having regard to the facts set out in Section 52A. The role of the officers effecting arrest or seizure, except in the case of a police officer, ends with the disposal of the person arrested and the article seized in the manner provided by Section 52 and 52A of the Act. Section 57 obliges the officer making the arrest or seizure to report the same to his superior within 48 hours. These powers are more or less similar to the powers conferred on Customs Officers under the Customs Act, 1962. Moreover, Section 36A of the 1985 Act runs counter to the plea that as the 1985 Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Criminal P.C. Clause (a) of Section 36A(1) makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code.”
14. The concept of investigation is a polymorphous stage which gives a different meaning in different context, but unique in character as provided by the Code or the statute. The word, ‘Investigation’ has not been defined at all anywhere under the special statute viz., N.D.P.S. Act. But, the answer for this can be got from Section 2(h) of the Code of Criminal Procedure and for this, reliance has to be necessarily placed on the ratio ruled by the Apex Court in Directorate of Enforcement v. Deepak Mahajan which is extracted as under :
“It cannot be said that either the officer of Enforcement or the Customs Officer is not expowered with the power of investigation though not with the power of filing a final report as in [the] case of a Police Officer. The word, ‘investigation’ cannot be limited only to police investigation but on the other hand the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation.”
The expression, ‘investigation’ has been defined in Section 2(h). It is an inclusive definition. It being an inclusive definition the ordinary connotation of the expression, ‘investigation’ cannot be overlooked. An ‘investigation’ means search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it be made by the police officer or a customs officer who intends to lodge a complaint. The word ‘investigation’ though is not shown in any one of the sections of the Customs Act, certain powers enjoyed by the police officer during the investigation are vested on the specified officer of customs. However, in the FERA the word ‘investigation’ is used in various provisions, namely, Sections 34, 37, 38 and 40 reading “… any investigation or proceeding under this Act…” though limited in its scope. The operation of Section 4(1) of the Code is straight away attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operations of Section 167. Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction of applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading, “…. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences”. A reading of Section 4(2) read with Section 26(b) which governs every criminal proceeding as regards the course by which an offence is to be tried and as to the procedure to be followed, renders the provisions of the Code applicable in the field not covered by the provisions of the FERA or Customs Act.
15. Thus, the term, ‘investigation’, as ruled by the Supreme Court has a wider connotation and it is flexible so as to include the investigation carried on by an agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. As defined by the Code, in definition Section 2(h), the term ‘investigation’ is an inclusive definition and it being an inclusive definition the ordinary connotation of the expression ‘investigation’ cannot be overlooked and it would mean the search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by the police officer or a customs officer who intends to lodge a complaint. Section 4 of the Act is thus attracted to the area of investigation, inquiry and trial of the offences even under the special laws like. FERA and Customs Act and as such it is comprehensive and Section 5 is not in derogation of Section 4(2) as it relates to the extent of application of the Code in the matter of territorial and other jurisdiction, but does not nullify the effect of Section 4(2). It is thus made clear that the provisions of the Code, for the purpose of investigation either by the police or any independent agency like the Directorate of Revenue Intelligence, Customs or the Narcotics Control Bureau duly empowered by the State or Central Government in accordance with law, would be applicable subject to the contrary provisions in the special Act or any special provisions excluding the jurisdiction or applicability of the Code and the second limb of Section 4(2) limits the application of the provisions of the Code and if it is read with the corresponding provision in the special statute which governs every criminal proceeding as regards the course by which an offence is to be tried and as to the procedure to be followed, it renders the provisions of the Code applicable in the field not covered by the provisions of the special statute.
16. If the above ratio ruled and laid down by the Apex Court is understood properly in the context of Section 4(2) of the Code of Criminal Procedure read with Section 2(XXIX) of the N.D.P.S. Act, the words and expressions defined in the Code of Criminal Procedure (2 of 1974) have the meaning respectively assigned both in the Code and the Act. One has to necessarily take it that where no provisions have been made in the special statute, then the provisions of the Code of Criminal Procedure would be made applicable to such area for the very reasoning that the applicability of the Code has been duly authorised by the statute itself. If this meaning is culminated from the above sections both in the Code and the Special statute viz., N.D.P.S. Act, the respondent, Norcotics Control Bureau, a duly authorised independent investigating agency, empowered to investigate into the offences under N.D.P.S. Act, but certainly not a police, is entitled to file the complaint under Section 200 of the Code in the Special Court which is constituted under the provisions of the Act. When the complaint after the investigation has been filed under Section 36A(1)(d) of the N.D.P.S. Act, the Special Court viz., the Court below, in the instant case, upon a perusal of the facts constituting the offence has taken cognizance of the offence and accordingly, it appears, relevant charge has been framed against the four accused, and the further proceedings are pending. To this extent, there is no quarrel or dispute among the Bar with regard to the powers of the Court or the powers of investigation done either by the police or by the independent agency. Be that as it may, I would like to emphasize once again the question of law involved in this case and to understand and appreciate the same in its proper legal prospective from the ratio held by the Apex Court in the above mentioned case-law. The proper test to be made is whether the investigation done by the police or by an independent agency can be distinguished only by two ways or procedures laid down; one under Section 173(1) of the Code of Criminal Procedure by filing a final report by the police and another by the complaint by the independent investigating agency which cannot file any final report under Section 173(1) of the Code, as the Supreme Court held the law that in either case the cognizance of the offence shall be taken by the Magistrate or by the Special Court under Section 190 of the Code. But, however, the procedure to be followed in conducting further trial by a Special Court is under the provisions of the Code, as provided under Section 36A(1)(c) of N.D.P.S. Act and as settled by the Supreme Court under the term ‘legal fiction’.
17. In this context, the Apex Court in the above case-law had an occasion to refer to a judgment held by the Supreme Court in Badaku Joti v. State of Mysore [1978 (2) E.L.T. (J 323) (S.C.) = 1966 Crl. L.J. 1353]. That was a case decided by the Apex Court with regard to the offence under Sea Customs Act as well as Central Excises and Salt Act, particularly Section 21 of the Act. Whether a statement recorded by the Officer under the Central Excises and Salt Act or the Sea Customs Act would be hit by Section 25 of the Evidence Act or not was decided by the Supreme Court in the abovesaid case-law. The principles laid down in this case has been upheld by the Supreme Court in Raj Kumar Karwal’s case (cited supra) and so also the ratio held in Deepak Mahajan’s case (cited supra) has been upheld by the Apex Court with regard to the investigation and as such the decisions held in both the cases still hold good which are prevailing over all the other Courts. If this is the position, I have no hesitation to hold that in the facts of the instant case, the Narcotics Control Bureau, respondent herein, being an authorised independent investigating agency for investigating the offences under N.D.P.S. Act, while it is empowered to file a complaint under Section 200 of the Code of Criminal Procedure after investigation, is also empowered to ask for permission from the Court which takes the cognizance of the offences of the Act for further investigation of the case, when it comes Across with a new fact or a new person, for the purpose of collecting all material evidence and statements and so on, within the Purview of concept of investigation so as to nab the real accused under the law, by applying the provisions of the Code viz., Section 173(8) of the Code of Criminal Procedure. But, however, in the light of Section 173(8) of the Code, it would be made applicable only to the cases where the cases were taken cognizance of on the basis of police report, and it may not be proper to file any petition under Section 173(8) of the Code even for otherwise. The respondent herein being an independent investigating agency, empowered and authorised by the statute to file the Complaint, on coming to know the involvement of a third person during the pendency of the case filed, is entitled to investigate further, but, however, it must be subject to the area and circumstances pointed out by the Apex Court, not by the specific provisions of the N.D.P.S. Act.
18. In this context, I would like to advert to the legal ratio held by the Supreme Court in Ramlal Narang v. State (Delhi Administration) and Om Prakash Narang and Another v. State (Delhi Administration) , which is the following :
“Any one acquainted with the day-to-day working of the Criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the Investigating Agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the Investigating Agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the Investigating Agency, the Investigating Agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be Involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism, that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the Police to make further investigation. We should not, however, be understood to say that the Police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interest of the comity of the various agencies and institutions entrusted with different stage of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.”
The abovesaid ratio ruled by the Supreme Court has been fully accepted by Their Lordships of the Supreme Court in Raj Kumar Karwal’s case (cited supra).
19. If the above settled legal ratio is looked into, it is made clear that the filing of final report under Section 173(1) of the Code of Criminal Procedure to a Court of law by the Police which is an investigating agency vested with all powers to carry on investigation and to file a final report, is one way in which the Court is bound to take cognizance of the offence and try the case in accordance with law. Then, under the same logic, when the investigating agency viz., the respondent herein, is duly empowered to investigate a case, however without any power to file a final report under Section 173 of the Code of Criminal Procedure, but to file a complaint under Section 36A(1)(d) of the N.D.P.S. Act before the Special Court constituted to take cognizance of such offences, to commence the trial and to dispose of the case, the investigating agency, the respondent herein can also be permitted to for investigate further in the interest of independent judiciary, in the interest of purity of the administration of criminal justice and in the interest of the comity of the various agencies and institutions entrusted with different stages of such administration. On a clear understanding of the principles laid down by their Lordships of the Supreme Court properly, by applying the same analogy clothed upon the police in equanimity and akin to the independent investigating agency viz., the respondent herein, though different routes are provided only to reach the Court, I have no hesitation to say that the Court has got every power to direct the investigating agency to do further investigation into the case, when it happens to come across with a third person involved in the commission of such offence as provided by the Act and to try in accordance with law.
20. I would like to make emphasize upon the legal ratio held by the Supreme Court in State of Bihar v. J.A. Saldanna (1980 Cr. L.J. 98) for the following observations :
“There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the filed exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate.
Section 5 of the Code of Criminal Procedure provides that an offence under the Indian Penal Code shall be investigated, tried, or inquired in accordance with the provisions contained in the Cr. P.C. Investigation of offences are two in nature, one is cognizable and the other is non-cognizable. With reference to cognizable offences, when the complaint is received with respect to such commission of the offence, the concerned police Officer takes up the investigation. In the case of non-cognizable offences the Police Officer does not investigate without the order of a competent Magistrate. According to the scheme of the Code, investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts, on an information relating to the commission of an offence given to a Police Officer incharge of the police station. Investigation generally consists of various steps, namely, enquiry by the officers or ascertainment of facts and circumstances of the case from the complaint, proceeding to the spot by the officer concerned on the allegations of the complaint and discovery and arrest of suspected offender and the collection of evidence for the arrest of the offender relating to the commission of the offence which in turn may consist of examination of various persons including the accused person and the reduction of the Statement into writing with reference to seizures in mahazars and formation of opinion as to whether on materials collected by the Police Officer, there is a case to place the concerned person in action against whom complaint is lodged before the Magistrate for trial and filing of the charge-sheet under Section 173, Cr. P.C. In both the cases however, the final report of the police is to be submitted to the Magistrate under sub-section (1) of Section 173 Cr. P.C. If the Magistrate, on the other hand, disagrees with the report submitted by the police, then the accused comes into the picture and thereafter, he has a right to be heard and to adduce evidence in support of his innocence. But, in case an order is passed by the Magistrate under Section 173(3) Cr. P.C. in agreement with the police report that there is no case against the person accused. But, it is open to the Magistrate to agree with the police report and take cognizance of the offence under Section 190(1)(b) or to take the view that the facts disclosed do not make out an offence and decline to take cognizance”.
The above observations would clearly envisage the scope of investigation to the extent which has become essential in a case projected before a Court of law for the purpose of trial and awarding of adequate punishment if the guilt is proved. However, the investigation may be either by the police who can file a final report under Section 173 of the Code of Criminal Procedure or by an independent agency which can file a complaint under Section 200 of the Code of Criminal Procedure of under Section 36A(1)(d) of the N.D.P.S. Act and two lines of approaching the Court have been specifically provided by the statutes viz., the Code and the N.D.P.S. Act. An overall assessment of the ratio settled by now by the Apex Court in the above case-laws would clinch the fact that at no point of time, the term, ‘investigation’ is restricted to a limited meaning or a limitation in put to the process of investigation. In fact, the hierarchy of the Courts went to the extent of saying that during the pendency of the case, if any further investigation is found to be necessary, the Court can direct for the same, in order to collect materials for the purpose of full fledged trial and to find out the truth or otherwise. Therefore, the term, ‘investigation’ does not enter or culminate any verdict or decided decision by a Court of law. It is a continuing process which is always required to be essential for the purpose of conducting the case viz., the establishment of the guilt of the persons or otherwise that can be done only with proper investigation. As I have already adverted to, if the ratio held by the Apex Court is understood properly, then it may not be correct to say that after filing of the complaint against few accused and taking cognizance of the offence against them, there is an end for it and either the Court or the investigating agency has no power to give or get permission to investigate further and in my esteemed view, the contention with regard to this raised by the learned Counsel for the petitioner cannot be sustained for any moment. For all the reasonings given above, one may say that the respondent being an independent investigating agency and empowered to file a complaint under Section 200 of the Code of Criminal Procedure, has no competency to get any remedy under Section 173(8) of the Code of Criminal Procedure. This contention may have acquired a sizable force, since the respondent has opted for adopting Section 173(8) of the Code of Criminal Procedure, in the capacity of himself being not a Police Officer, having filed the case not under Section 173 of the Code, such act is, in my view, totally erroneous, but, however, the remedy provided in the context of the present case, has not exhausted. It is to be remembered that it is a well settled principle by now that a wrong quoting of a provision of law may not disentitle the party concerned of the proper legal redressal. Therefore, in this context, having considered the whole gamut of the case, I am constrained to say that asking permission to further investigation the case under Section 173(8) of the Code of Criminal Procedure is not correct. But, for the reasonings given above, it is a wrong quoting of provision of law and for the said reasoning alone, the impugned order cannot be deemed to be vitiated for any moment, particularly, when the Court has got every power to order further investigation. It may also be remembered at this stage, that once a complaint is filed, then the adjudicatory function of the Court starts and that therefore, there is nothing wrong or strange for the respondent in seeking permission from the Court to carry on further investigation in the facts of the instant case, and accordingly, the trial Court has granted the permission.
21. Barring Section 173(2) of the Code of Criminal Procedure, 1973, the respondent have power to conduct investigation by virtue of provisions contained in Chapter V of the N.D.P.S. Act, in particular Section 53 of the Act. Therefore, I am given to understand that by virtue of powers under Section 67 of the N.D.P.S. Act, the petitioner was summoned and his statement was recorded and consequently, his arrest was effected by virtue of Section 41(2) of the Act and all further proceedings were then to follow. Therefore, having considered all the factual and legal aspects, when similar powers of investigation vested with the police are given to the respondent, Narcotics Control Bureau, an independent investigating agency, to lodge a complaint before a Special Court constituted, but, for the different ways that have been provided to approach the Court, it does not mean in any way that the respondent agency have no power to ask the Court to grant permission to do further investigation in a case when it happens to do so. As I have already held, not for the sake of mere repetition, but for the sake of clarity, I am constrained to held that the police upon coming to know that there exists further materials to be investigated, is empowered to do further investigation and as such, when the investigating power is vested with other agencies like the respondent herein, under the same analogy, the respondent can also be allowed by the law to carry out investigation and collect materials against the accused for the purpose of fulfilling the trial in the Court of law and except the wrong quoting of provision of law as Section 173(8) of the Code, before the Court below, I do not come across with any legal laches or impropriety or illegality in passing the impugned order. The observations quoted by me in the previous paragraphs, as ruled by the Supreme Court, clearly provide an answer to the very contentions made by Mr. K. Asokan, learned Counsel with all strains and nerves. On the other hand, for the reasonings given above, I am inclined to endorse my view with the contentions made by Mr. P. Rajamanickam, learned Counsel on behalf of the respondent. It has become now-a-days essential that every one accused of a crime should have free access to a Court of justice so that he may duly acquitted if found not guilty of the offence with which he is charged, and it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. One more reasoning which I feel necessary to advert to at this juncture is that the functions of the judiciary and the police are complementary, certainly not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved. Accordingly, when all the offences under the N.D.P.S. Act are held to be congnizable offences, then it is highly justifiable for the Court below to give permission to the respondent to investigate further with regard to the collection of materials found appearing against the very involvement of the petitioner in this case. Considering the increase in drug abuse and illicit drug trafficking, when certain deficiencies were found in the existing laws, as observed by the Supreme Court, it was necessary for the Parliament to enact a comprehensive legislation sufficiently stringent to compete the challenge posed by the drug traffickers. India had also participated in the Second International Opium Convention held at Geneva which adopted a resolution relating to the dangerous drugs and to give effect to the obligations undertaken by the Government of India by signing in the said convention, certain amendments to the N.D.P.S. Act were made providing severe punishment in order to prevent the drug trafficking and booking the drug traffickers under the law for the punishment and the Parliament has enacted such provisions in the year 1985 by quoting new powers to the investigating agency as well as the Court. If the whole matter is viewed in this angle, in the light of the legal ratio held by the Apex Court in the above case-laws and the provisions of law, in the factual aspects of the instant case, I do not come across with any illegality or impropriety in the impugned order passed by the learned trial Judge and as such, this revision lacks any merit. Though I am bound to place on record my deep appreciation on the efforts taken by the learned Counsel Mr. K. Asokan, in seriously emphasizing the very scope of the Act, could not accept his contention for the reasoning given above. On the other hand, I must place on record the services being rendered by Mr. P. Rajamanickam, learned counsel, for and on behalf of not only the investigating agency, but also the welfare of the whole society.
22. In the result, for all the foregoing reasonings, the revision is admitted and it is dismissed. Consequently, the order passed by the learned Special Judge, Special Court (N.D.P.S. Act) Madras in C.C. 418 of 1995, dated 8-7-1996 is hereby maintained and confirmed.