KANISHKA SHEKHAR SINGH Vs. STATE OF H. P.

JUDGEMENT

(1.) A police party consisting of HC Sameer Kumar No. 46, C. Maha Chand No. 403 and HHG Anil Kumar, No. 7-2/16 were present at Rashi-Aage Jungle on 16/4/2019 at around 11.00 PM for Nakabandi and traffic checking duty. A vehicle bearing registration No. UP-63Z-0003 came from Malana at about 11:20 PM. The police stopped the vehicle for checking. Shreshta Pandey (petitioner No.5) was driving the vehicle and other petitioners were present in the vehicle. The police searched the vehicle and recovered one black bag kept underneath the driver seat containing 118 grams of charas. The police arrested the occupants, seized the charas, conducted the investigation and filed the charge sheet against the accused before the Court.

(2.) The petitioners-accused filed an application for discharge asserting that the Investigating Officer was not vested with the powers to carry out the investigation. The investigation could have been conducted by a Non-Gazetted Police Officer Grade-I who should be assisted by Non-Gazetted Police Officer Grade-II. The State had not framed any rules and the rules prescribed by the Central Government would apply to the present case. The entire exercise conducted by the Head Constable is without jurisdiction and the accused cannot be charged and tried for the commission of any offence. The Assistant Sub Inspector is a Non-Gazetted Police Officer in Grade I and the Head Constables are Police Officers in Grade II. In the absence of the Assistant Sub Inspector, the investigation could not have been conducted by the Head Constable. Therefore, it was prayed that the accused be discharged.

(3.) The application was opposed by the State by asserting that HC Sameer Kumar, who conducted the investigation, was competent to do so. There is no bar under Sec. 78(2) of the H.P. Police Act to the Head Constable to carry out the investigations. Provisions of Sec. 42 of the ND&PS Act do not apply to the present case. Therefore, it was prayed that the application be dismissed.