MAHESH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who was arrested under sections 8/18 and 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985)., for short The Narcotic Act has sought his release from detention through writ of Habeas Corpus on the sole ground that charge-sheet has not been filed against him within the period of 90 days referred to in sub-section (2) of Clause (a) of the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973, for short CodeT.

(2.) The petitioner was arrested on December 23, 1985. The arresting authority was the Central Customs and Excise Officer, On December 24, 1985 he was produced before Chief Judicial Magistrate, Lucknow who put him in Judicial custody and sent him to jail. From time to time remand was extended and till date the petitioner continues to be detained in jail. After completing investigation the Customs authorities filed complaint on March 22, 1986. The petitioner had applied for being enlarged on bail but the application was rejected by the learned Sessions Judge, Lucknow by his order dated February 17, 1986. Thereafter the petitioner applied for release on bail in this Court but the application was rejected by Honble P. Dayal J., on April 15, 1986. Now, the petitioner has moved the instant application.

(3.) On behalf of Union of India appearance has been put in through Sri O.K. Mehrotra Advocate. Sri Mehrotra has submitted that the present case is not governed by a section 167 of the Code in as much as the investigation was not done by the Police but the same was done by the officers appointed under the Narcotic Act. The learned counsel points out that section 167 appears in Chapter XII of the Code of Criminal Procedure which bears the heading. Information to the Police and their powers to investigate in support of the plea that section 167 is not applicable the learned counsel has placed reliance upon the following authorities: Badaku Joti Svant v. State of Mysore, Illias v. The Collector of Custom Madras, The Superintendent of Customs, C.I.U., Cochin v. P.K. Ummerkutty, and M K. Ayoob and others v. Superintendent, Customs Intelligence Unit, Cochin and anothers. Sri Mehrotra has also submitted that the officers of the Customs Department are not guilty of laches in as much as they filed the complaint within 90 days. The learned counsel for the petitioner has not disputed Sri Mehrotras claim that the complaint was filed on March 22, 1986. He, however, submits that the complaint cannot be equated with a charge-sheet and the Customs Officers although competent to file charge sheet preferred to file a complaint and therefore, section 167 of the Code is attracted. According to the learned counsel under section 53 of the Narcotic Act Officers appointed under the Act are Police Officers and therefore investigation by the said officers was by the Police Officers and consequently, they were competent to file charge-sheet.