Mondal Vs. Pranjal Bardalai & Anr  Insc 319 (6 May 2005)
& Tarun Chatterjee Y. K. Sabharwal, J.
complaint dated 17th
March, 2003 under
Sections 21(c) and 29 of the Narcotics Drugs and Psychotropic Substances Act,
1985 (for short, 'the NDPS Act') was filed by the respondents. The petitioner
and one Dilip Das were arraigned as the accused. The basis of the complaint was
alleged seizure of 2.050 kg heroin. It was, inter alia, alleged that during the
search of the residential premises of Dilip Das, the heroin was found concealed
amongst garbage heaped upon the floor under the staircase. During
interrogation, Dilip Das stated that the recovered substance was supplied by
the petitioner through his carrier to his brother-in-law Sunit Banerjee and he
used to keep the said substance in safe custody for further delivery to Bangladesh. According to the statement made by
Dilip Das, the petitioner was the real owner of the recovered heroin. It was
further alleged that one Alek Mondal appeared before Narcotic Control Bureau
Officer and stated that the petitioner, his brother, had left the family seven
years ago and was living separately at unknown address and that he had no
connection or contact with the petitioner. A notice under Section 67 of the
NDPS Act issued in the name of the petitioner was received by said Alek Mondal.
allegations in the complaint is that the petitioner was issued various notices
under the NDPS Act to appear before the Intelligence Officer but he failed to appear.
The complainant made a prayer for issue of warrants of arrest against the
petitioner. In the complaint, it was submitted that a supplementary complaint
will be filed before the learned special court against the petitioner in the
event of his arrest and after further investigation. Praying that the court may
take cognizance of the offence punishable under Sections 21(c) and 29 of the
NDPS Act, it was submitted that since the petitioner could not be intercepted,
the court may issue necessary orders to the Superintendent of Police to produce
him before the court.
learned Special Judge, NDPS
cognizance of the case in terms of order dated 17th March, 2003 when Dilip Das was produced from judicial custody. Dilip Das
was ordered to be produced on 28th April, 2003
and investigating officer was directed to file report.
were issued for the arrest and production of the petitioner in terms of orders
passed by the special court on 28th April, 2003.
The prayer of accused Dilip Das for grant of bail was, however, rejected.
prior to the filing of the complaint, a prayer was made before the learned
Special Judge for issue of warrants of arrest against the petitioner while
producing before the court accused Dilip Das from custody.
stage, the special court in terms of order dated 17th February, 2003, observing that no substantial piece of documentary
evidence had been produced by the complainant, had refused the prayer for issue
of warrants of arrest against the petitioner.
sought quashing of the complaint by filing a criminal revision petition before
the High Court, inter alia, on the ground that the mandatory provision of
Section 42 of the NDPS Act had not been complied with and there was no material
to proceed against him. The said petition has been rejected by the High Court
by the impugned judgment, inter alia, observing that where allegations of such
grave nature have been made, the prosecution should be given opportunity to
prove the case and that the proceedings were at the very initial stage when
only cognizance of offence has been taken by the special court. The High Court
has further noticed that material has been collected by NCB Officers against
the petitioner which is sufficient for the purpose of proceeding further in the
matter. It has also been noticed that the petitioner has been absconding till
date and warrants of arrest against him have been rightly issued.
the impugned judgment, it has been contended by learned counsel for the
petitioner that the complaint deserves to be quashed for non-compliance of
mandatory provision of Section 42 and also that there is no material to proceed
against the petitioner. Further contention is that the special court has no
power to issue warrants of arrest.
proceedings of the complaint are at initial stage after the cognizance has been
taken. The petitioner could not be interrogated since he has been avoiding to
appear before the NCB Officer despite issue of various notices as per the
averments made in the complaint. The allegations in the complaint are grave.
The recovery, according to the prosecution, is of 2.050 kg. of heroin which,
according to the statement of Dilip Das, belonged to the petitioner. The
question whether Section 42 of the NDPS Act has been complied or not being a
question of fact has to be gone into on appreciation of evidence that may be
adduced before the Special Judge. Prima facie, the High Court has come to the
conclusion that there has been compliance. This is not the stage for in depth
examination of this question. The contention that there is no material against
the petitioner since the only material on record was inadmissible retracted
statement allegedly made by the co-accused, Dilip Das, also cannot be accepted,
at this stage, when only cognizance has been taken and the petitioner is still
to be interrogated. The question about corroborative nature of evidence may
also have to be gone into at the appropriate stage. The only other contention
urged is about the lack of power of the Special Judge to issue warrants of
upon Section 41 of the NDPS Act, it has been contended that power to issue
warrants of arrest only vests in the Magistrate and not in the special court.
Section 41 does not take away powers vested in special court by Section 36A of
the NDPS Act. There is no merit in this contention as well.
parting, we may also note that wide extraordinary power of quashing vested in
the High Court is to be exercised sparingly and with caution and not to stifle
legitimate prosecution. Such a power is required to be exercised in a case
where the complaint does not disclose any offence and it is frivolous,
vexatious or oppressive. At that stage, there cannot be meticulous analysis of
the case. The High Court has rightly declined the prayer to quash the complaint
at this initial stage. It cannot be said that there was no material for taking
cognizance by the special court.
reading of the complaint as a whole shows that as per prosecution case a huge
recovery of heroine was made. The recovered substance was stated to belong to
the petitioner, the petitioner did not respond and failed to appear before NCB
Officers despite written notices. Under these circumstances, the complaint was
filed against the petitioner and Dilip Das seeking leave of the Court to file
supplementary complaint after further investigation that may be carried out
after custodial interrogation of the petitioner. In this background, the
complaint cannot be quashed.
the aforesaid reasons we find no merit in the petition. It is accordingly