K.ABDUL SAFEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The proceedings on hand is initiated against the order passed by Special Judge (NDPS Act Cases), Vadakara (for short 'the court below') on 31.12.2018 in Criminal Miscellaneous Petition No.1226/2018. The said petition was filed by the learned Public Prosecutor under Section 309 Cr.P.C, seeking to stop the trial in S.C No.43/2016, originated from Crime No. 46/2016 of Mukkam Police Station. The prayer was to stop the trial of the case till a supplementary report is filed in the case within a time frame as permitted by the court in the order. The court below has allowed the application and granted the relief as follows:

(2.) The grievance of Sri. Ashis Korattyswaroopam, the learned Counsel for the petitioner was that the court below is highly unjustified in passing an order of the nature. According to him, the investigation was already held by the Inspector of Police, Mukkom and on conclusion of it a final report under Sub Section (2) of Section 173 was filed before the Court. Thereafter, an application was filed as Crl.MP No.1226/2018 by the Public Prosecutor under Section 309 Cr.P.C to stop the trial, till a fresh report is filed in the case. According to him filing of a supplementary report was sought solely on the basis of the judgment reported in Mohan Lal v. State of Punjab [2018(3) KLT 852 (SC)] which laid the dictum that the detection and investigation if done by one and the same officer, the prosecution will be vitiated. According to him, the application was filed by the learned Public Prosecutor and a report is appended thereto as evidenced from the averments. Accordingly, trial was sought to be stopped till the filing of a report under sub-section (8) of Section 173 Cr.P.C at a stage when the charge framed was read over and the plea of the accused that he is not guilty of the offence was recorded. The trial was proposed to be scheduled. After three years of filing of the final report in the crime that the present application is filed. Further investigation is sought to be conducted under sub Section (8) of Section 173 Cr.P.C but it is not stated in the application that additional evidence, either oral or documentary have been received by the investigating officer for the purpose of conduct of further investigation. On the contrary, the investigation was sought to be pursued with further for the sole reason of the finding of the Apex Court in Mohan Lal's Case (supra) that the prosecution will not sustain if the detection and investigation were conducted by one and the same officer. Therefore, on their apprehension that the trial proposed to be held against the petitioner will be vitiated and culminated in acquittal of him in view of the passing of the dictum in Mohan Lal's Case (supra), the aforesaid application was moved by the learned Public Prosecutor before the court below pursuant to which the trial scheduled was stopped and further investigation was ordered vide the order under challenge.

(3.) The court below in fact had received the original final report filed by the investigating officer after concluding the investigation in Crime No.46/2016, and after framing of charges on its basis and on the accused's raising a plea that he is not guilty of the accusations levelled in the charge framed, on being read over and explained to him. The court below passed the order under challenge herein in the application without applying it's mind to the averments raised by the Additional Public Prosecutor in the application. On a reading of the application, this Court is convinced that no sufficient ground is pleaded therein to invoke the power to conduct further investigation as contemplated under sub-section (8) of Section 173 Cr.P.C. The sole ground raised in the application was that the investigation needs to be held again by a competent officer as directed by the Director General of Police based on the judgment in Mohan Lal's Case (supra). Raising an averment of the nature, investigation by an officer superior to the one who had already concluded the investigation and laid the final report originally under sub-section (2) of Section 173 was sought. The case on hand is one involving detection and seizure of Ganja, a narcotic substance, and those were actually done by SHO of Mukkom Police Station. The very same officer had also ventured into the investigation which involve mainly questioning of witnesses of seizure and officials who marked their role in processes like detection and seizure of contraband and recording of their statements. Therefore, by filing the present application, conduct of an already concluded investigation was sought to be reopened and conducted afresh by another officer superior in rank to the one who held the same. It was not stated in the application that the investigation sought to be held was based on some new materials either oral or documentary received by the officer in charge of the police station as evidence, and a report summarizing those in the form prescribed is forwarded, to the court by him.