KADER ALIAS KADER BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) This Crl. Appeal was referred to the Division Bench by learned single Judge doubting the decision of another single Bench decision of this Court in Naushad v. State of Kerala, (2000) 1 Ker LT 785 : (2000 Cri LJ 2870). There it was held by the learned single Judge of this Court that when complainant and investigating officer are one and the same, it cannot be said to be fair in a proceeding under Narcotic Drugs and Psychotropic Substances Act, 1985 (in short N.D.P.S. Act) and the learned Judge made the following observations in the reference order :

(2.) While deciding Naushad's case, learned single Judge referred to his own earlier judgment in Xavier v. State of Kerala, (1998) 1 Ker LT 686 : (1998 Cri LJ 3182), where the learned Judge held as follows :

(3.) Naushad's case (supra) is under the N.D.P.S. Act itself. In that case the learned Judge referred a decision of the Rajasthan High Court in Gyan Chand v. State of Rajasthan, 1993 Cri LJ 3716. That was a case where a Circle Inspector of Police seized some opium from an accused and continued the investigation himself. It was held by the learned single Judge on the facts of that case that his proceeding with the search and effecting recovery and continuing the investigation militate against the basic tenets of jurisprudence and fair investigation. It was, however, mentioned further that the status of the Investigating Officer could not be placed on any pedestal higher than that of a complainant and the complainant himself cannot be the sole agency of the investigation. Decision of the Supreme Court in Megha Singh v. State of Haryana, AIR 1995 SC 2339 : (1995 Cri LJ 3988) also was referred by the learned Judge in Naushad's case (2000 Cri LJ 2870). That was not a case under the N.D.P.S. Act. In that case a Head Constable recovered a pistol and cartridges and with reference to the said procedure, the Supreme Court held as follows :