BASHIST NARAYAN SINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. By consent rule made returnable forthwith.

(2.) HEARD Shri Mundargi for the petitioner and Shri Nalavade, A. P. P. for the respondent-State. . This revision application is directed against the order dated 1st February 1996, passed by the Additional Sessions Judge and Special Judge (Narcotics), Bombay, below Misc. Application No. 426 of 1995 in NDPS Special Case No. 170 of 1993, rejecting thereby prayer made by the petitioner for his discharge under section 227 of the Criminal Procedure Code. 4. The petitioner - Bashist Narayan Singh was working as Assistant Collector of Customs and Central Excise, Division G-1, Bombay, at the relevant time. He is accused No. 7 in NDPS Special Case No. 170 of 1993, arising out of C. R. No. 38 of 1992, registered at Narcotic Cell, C. B. , C. I. D. , Bombay, on the complaint of Shri Nitin V. Yadav, Police Inspector attached to this cell. The offences under sections 8 (c) r/w 21 and 29 of the N. D. P. s. Act are alleged to be committed by the petitioner. In that behalf, case of the prosecution in short is as follows. 2. On 2nd September 1993, upon reliable information a jeep bearing No. MH-12-0538, which was standing in front of Jewel of India Restaurant, Nehru Planetorium Centre, Worli, Bombay, was seized by the Police, and on search 150kg. of Mandrax tablets were recovered. Further investigation in that behalf resulted in arrest of accused No. 1- Milind Chalke and accused No. 2.- Dhananjay Sudhar Jadhav, his brother-in-law. Further, 12,500 Kgs. of Mandrax tablets were recovered. Then, on 4th September 1993, on further information, at the instance of accused No. 1, Chemical Factory of accused No. 1 was searched and 1600 Kgs. of Methaqualone powder and 110 Kgs. of Mandrax tablets and machinery were recovered by the police. It was found that these goods were supplied by accused No. 8 and his nephew-accused No. 3 who came to be arrested on 7th September 1993. On 18th September 1993, at the instance of accused No. 3 100 Kg. of Metha- qualone powder was seized from the premises of accused Nos. 4 and 5 who also came to be arrested from the said premises. It transpired that accused Nos. 4, 5 and 6 left the said jeep in front of Jewel of India Restaurant, Nehru Planetorium Centre, Worli. From the interrogation of accused No. 1 - Milind Chalke, it transpired that sometime in September 1992, the petitioner herein helped accused No. 1 in getting the said Mandrax tablets tested from a private laboratory. For that purpose, the petitioner wrote letter dated 28-9-1992 by using his official position, with a view to help accused No. 1 in establishing a Chemical Factory for the purpose of manufacturing Mandrax tablets. That is how, the petitioner is alleged to have abetted accused No. 1 in commission of offences under the NDPS Act. As such, petitioner came to be arrested on 12-10-1993. The petitioner then applied to the Special Judge for grant of bail by preferring Criminal Application No. 315/93 and it was rejected on 17-12-1993. He then moved the High Court by filing Cri. Application No. 377/94 and the High Court granted bail in his favour. It is the case of the petitioner that time and again he has insisted that in the course of his duty as Assistant Collector of Customs and Central Excise, he has acted on secret intelligence/information to gather specific information and to satisfy himself about the genuineness of the intelligence/information which he received from accused No. 1- Chalke, who had brought the three tablets to him sometime in September 1992. Before acting on such intelligence, petitioner thought it proper to get tablets tested as in the past tablets smuggled wore found not genuine. Therefore, in his official capacity, petitioner opened a file and with his confidential letter sent the tablets to a private laboratory for testing. Since the information/intelligence was secret, in order to check the authenticity, the work was carried out secretly but confidential record was maintained properly. In fact, he had apprised senior officer like the Additional Director General of D. R. I. After his release on bail, the State applied for cancellation of the bail, by filing Criminal Application No. 2466 of 1994. In that application petitioner not only filed his affidavit-in-reply, but insisted that the then Investigating Officer be directed to collect relevant records from his office to support his stand that he is innocent and falsely implicated in this case. It appears that further investigation was carried out by Shri Wahule, Police Inspector, who, during the course of it, recovered secret file maintained by the office and also recorded statements of some officials from Central Excise and Customs Department. As such, report of further investigation was submitted by the Police Officer Wahule before the Special Judge. On the basis of the aforesaid circumstances, petitioner filed Misc. Application No. 426/95 in NDPS Spl. Case No. 170/ 93, for discharge under section 227 of the Criminal Procedure Code.

(3.) THIS application was opposed on behalf of the prosecution and on consideration of the submissions of both the sides, and documents on record, the learned Judge came to the conclusion that further investigation carried out by Shri Wahule, Police Inspector was an afterthought attempt to save the petitioner and this plea is raised by the petitioner for the first time after his release on bail. The record suitable to the plea of the petitioner has been created by the Investigating Officer. Shri Wahule with the help of officials of the Customs and Excise and, therefore, further investigation was suspicious. Not only that, but formal permission of the Court was not at all obtained and the Court was not made aware of such further investigation being carried out. It was also found that the material collected in the earlier investigation was sufficient to sustain the charge for the offences under section 8 (c) read with section 21 and 29 of the NDPS Act against the petitioner and therefore, the learned Judge rejected the application for discharge made by the petitioner and this order has been challenged in the present Revision Application.