Hamid Ullah vs State of U.P. and Another

Palok Basu, J.—These two petitions u/s 482 Code of Criminal Procedure arise out of the following facts:

On 20-8-1988 some contraband charas were recovered from the possession of Hamid Ullah, Wahid and Halim by one Sri. H.P. Singh, an Excise Inspector of the State of Uttar Pradesh. The three were consequently arrested on the said date. On 21-8-1988 all the three accused were produced before the C.J.M. Link Magistrate Meerut who passed the following order:

Aaj Dinank 21-8-1988 Ko Uprokt Apradh Men Muljim Uprokt Ko Thaney Dwara Giraftar Karkey Remand Key Merey Samaksh Pesh Kiya Gaya. I.R. Ki Remand Prarathana Patra Key Auolokan Dwara Giyat Hua Ke Vivechna Abhi Shesh Hai.

The G.D. has not been produced. The Excise Inspector has submitted that G.D. and C.D. are not maintained by the Excise Officers as only State complaint is preferred. The case property is duly sealed condition. The wraper has a lebel (D-19A) with the signature of the accused. The Excise Inspector has submitted that the seized property shall be sent for Chemical Examination report and if the report in positive then he shall prefer a complaint. Heard. Perused the material on record. The accused remanded to judicial custody till 29-3-1988.

Against the said remand order dated 21-8-1988 Cr. Revision No. 294 of 1988 was preferred by Halim, Criminal Revision No. 295 of 1988 was filed by Hamid Ullah and Cr. Revision No. 296 of 1988 was filed by Wahid before the Sessions Judge, Meerut. These revisions were admitted and the Sessions Judge granted bail to all three accused. By an order dated 3-10-1988 all the three petitions have been dismissed against which Hamid Ullah has filed Cr. Misc. Application No. 10031 of 1988 while Wahid and Halim have filed Cr. Misc. Application No. 10059 of 1988. When these matters came up before this Court on 7-10-1988 the Government Advocate was directed to obtain instructions or file a counter affidavit and the matter was directed to be taken up for admission on 12-10-1988. Sri. Satish Trivedi and Sri. Rajesh Kumar Sharma have argued the matter on behalf of the applicants and Sri. Prem Prakash Yadav learned Deputy Government Advocate has appeared on behalf of the State of Uttar Pradesh and also the Excise Inspector, U.P. Excise, Sector-1 Meerut.

Sri. Trivedi has argued that the remand granted by the Magistrate on 21-3-1988 is not in accordance with law and, therefore, the detention of all the three applicants was not legal and consequently the two petitions be allowed and the accused should be set at liberty. The applications are being contested on the ground that there is no illegality in the proceedings and all the actions and orders are in accord with the provisions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). My attention was drawn to Section 53 of the Act by Sri. Trivedi. It was argued that in view of Sub-section (2) of Section 53 a notification by the State of Uttar Pradesh investing an officer of the State Excise Department with the powers of officer-in-charge of Police Station for investigation of offences under the Act should be been made and in the absence of such notification the arrest, seizure and production of accused by Sri. H.P. Singh, Excise Inspector, is illegal For correct appraisal of the arguments Section 53 itself may be quoted below:

Section 53 Power to invest officers of certain department with powers of an officer-in-charge of police station- (l) The Central Government, after consultation with the State Government, may, by notification published in the official Gazettee invest any officer of the department of Central Excise, narcotics customs, revenue intelligence or Border Security Force of any class of such officers with the powers of an officer-in-charge of a Police Station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drags control, revenue or excise or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

It has further been argued that even if it be assumed that u/s 42 and 43 of the Act, Sri. H.P. Singh could effect arrest and seizure, he did not have power of investigation and, therefore, further remand could not be obtained by Sri. Singh. The attention of the Court was drawn by Sri. P.P. Yadav to Sections 51 and 52 of the Act which reads as under:

Provisions of the Code of Criminal Procedure 1973 to apply to warrants, arrests, searches and seizures. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and'' seizure made under this Act.

Disposal of persons arrested and articles seized.

(1) Any officer arresting a person u/s 41, Section 42, Section 43 or Section 44 shall as soon as may be, inform him of the grounds for such arrest.

(2) Every person arrested and article seized under warrant issued under Sub-section (1) of Section 41, shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and article seized under Sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered u/s 53.

(4) The Authority or officer to whom any person or article is forwarded under Sub-section (2) or Sub-section (3) shall with all convenient despatch, take such measures as may be necessary for disposal according to law of such person or article.

While judging the argument it may be necessary to refer to Clause (XIX) of Section 2 of the Act which reads as under:

Words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code.

It may be noted that Section 10 of the Act empowers the State Government to frame certains rules. Those rules will be subject to the provisions contained in Section 8 of the Act. Similarly Section 78 empowers the State Government to frame certain roles which reads as follows:

Subject to the other provisions of this Act, the State Government may, by notification in the official gazette, make rules, for carrying out the purposes of this Act.

On behalf of the State and the Excise Inspector the attention of the Court was drawn to the rules framed by the State of Uttar Pradesh vide Notification No. 3555-B-2/XIII-23-85 dated October 8, 1986. Rules 76, 77 and 78 are relevant for purpose of deciding the controversy raised which are being reproduced below:

All Gazetted Officers of the Excise, Police, Drugs Control or Revenue Departments may exercise the powers under Sub-section (2) of Section 41 of the Act.

Any officer of the Excise or Police Department not below the rank of Inspector or of the Revenue Department not below the rank of Tahsildar may exercise the powers u/s 42 of the Act.

Any officer of the Excise or Drugs Control Department, not below the rank of Inspector or of the Revenue Department not below the rank of Tahsildar, may...

exercise the powers of an officer-in-charge of a Police Station in matters of investigation of offences under the Act.

Sri. Trivedi further argued that in order to grant remand the magistrate must have had before him copy of the case diary as required u/s 167 Code of Criminal Procedure because Sub-section (1) of the said Section makes it imperative that when an accused is arrested he may be transmitted to the nearest judicial magistrate along with a copy of entries in the diary prescribed in the provisions of the Code of Criminal Procedure following. It is argued that no copy of cage diary was produced nor the recovery- memo was produced and as such the C.J.M. had not applied his mind to the w reasons for granting remand and as such the action was illegal.

The first point to be considered is whether because of Section 53 the power of the Excise Inspector to investigate matter and seek remand of the arrested accused is available or not. Sri. Trivedi argues that since the notification required by Sub-section (2) has not been issued, the action of Sri. H.P. Singh was illegal. I do not find any force in the said argument. It must be noted that Section 78 of the Act empowers the Government to frame rules and while framing rules the purposes of the Act may be taken note of. Admittedly the rules have been notified on 8-10-1986. In this view of the matter the requirement of law that there should be a notification under Sub-section (2) is fully complied. It will be too much to permit an argument that only a separate notification should be made u/s 53 so as to entitle an Excise Inspector or the like to investigate matter. Once the Government has applied its mind and in view of Section 78 proceeded to frame rules which includes rules 76, 77 and 78 whereby the concerned officers have been empowered to exercise the powers of investigation, I do not find any force in the argument that there is no notification specially issued u/s 53.

Having dealt with this aspect the other incidental questions raised by Sri. Trivedi must also be answered here and now. Admittedly the Excise Department or the Excise Official at the time of arrest or seizing a contraband article does not make a case diary under the rules applicable in the Excise Department. There is a distinction in the type of diaries maintained by the Excise Department and the diaries maintained by an officer-in-charge of the police station as envisaged by the Sections in the Code of Criminal Procedure. A case diary is the requirement of the Code of Criminal Procedure and not of the Act. If the accused, when produced before the Magistrate, was said to have been arrested along with contraband article and materials which is produced through an application before him, it will be sufficient compliance of Section 167 Code of Criminal Procedure. I have already quoted above the order that has been passed by the C.J.M. on the relevant date. It indicates that it was brought to the notice of the Magistrate when the accused was produced that contraband foods have been recovered and that the article was being sent for chemical examination and obviously the proceedings in Court would begin only after the report of the Chemical Analyst was available. A complaint only can be filed by the said Excise Inspector keeping in view the provisions contained in the Act. It must be noted that, there is no provision in the Act like filing of charge sheet by an Investigating Officer of a Police Station as is done in matters investigated under the Code of Criminal Procedure. But, in the instant case, matters will have to be brought to the notice of the Court only through a complaint. Thus the second argument raised by Sri. Trivedi also does not have any force and must be rejected.

An additional fact must be put down here. The word ''investigation'' has not been defined in the Act nor the words Incharge of a Police Station. For the definition of these words we have to go back to the provisions contained in the Code of Criminal Procedure. Officer-in-charge of a Police Station has been defined in Clause (o) of Section 2 Code of Criminal Procedure which is quoted hereunder:

(o). "Officer-in-charge of Police Station" includes, when the officer-in-charge of the police station is absent from the Station house, or unable from illness or other cause to perform his duties, the police officer present at the station home, who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present." Similarly, ''investigation'' has been defined in Clause (h) which is quoted hereunder:

(h) Investigation includes all proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Obviously when the powers of officer-in-charge of a police station an conferred by Rules 76, 77 and 78 of the Rules, it follows that the powers of investigation as defined in the Code of Criminal Procedure are available to an Excise Inspector. To bold otherwise will mean that inspite of notification u/s 53 the power of investigation shall not be available to the Excise Inspector and in that event it will be leading to a situation which will be difficult to envisage in the sense that while on the one hand he has the power to arrest an accused, seize contraband articles, still he will not be having power to produce it on him before the Magistrate and seek remand. Having examined the matter I find no force in the argument advanced by the learned Counsel for the applicant. Attention of the Court was drawn to the case of Mahesh v. Union of India 1986 ACR 406. While considering the powers of an officer acting u/s 53 it was held that he cannot be called a police officer within the contemplation of Code of Criminal Procedure. It may be noted that the said judgment was pronounced by a Division Bench on 5th May, 1986. The notification dated 8-10-1986 was not in existence. Consequently the view expressed therein cannot be said to apply to matters which are governed after the said notification dated 8-10-1986.

In view of the aforesaid discussion there is no force in these petitions which are accordingly dismissed.

The learned Counsel for the applicant then drew the attention of the Court that because of the interim order of this Court dated 7-10-1988 the applicants have not yet surrendered. If the time to surrender is not extended by three more days it will not be possible for them to appear in the Court and in that event unnecessary complications about surety bonds etc. may arise. Accepting the said argument, it is hereby directed that the applicant may surrender before the Magistrate''s Court by the 15th of October, 1988.