2015 (11) TMI 690 - HC - Indian Laws

Application for transfer of case - Offense of preparation of intoxicating drugs - Offence under NDPS - Appllants pleads that they are made accused by false implications - Jurisdiction of Punjab Police - Held that - The power to transfer or entrust the investigation of a case to an agency like Central Bureau of Investigation without the consent of State Government indubitably vests in the High Court. Nonetheless, one cannot invoke that power as a matter of right or by mere levelling allegations against the local police. Since the power flows from extraordinary jurisdiction conferred under Article 226, it has to be exercised sparingly, cautiously and only in exceptional circumstances with the avowed object to restore credibility and instill confidence in the ongoing investigation. It is an integral part of one s fundamental as well as human rights. Such a right does accrue when the ongoing investigation by the local police lacks credibility or is hampered by influential and powerful people. Equally important is the evaluation of comparative efficacy and capability of the local police vis- -vis the new agency, for securing timely, fair, equitable and unbiased investigation. Yet another relevant factor would be in regard to who has sought the transfer of ongoing investigation, namely, the suspects of the crime or its victim(s)? The majority of the cases where the Apex Court or High Courts have entrusted investigation to an independent agency are at the instance of the victims of crime who were at the receiving end due to the lackadaisical, offhand and callous approach of the investigating agency, or because police officials themselves were accused in the case, or when involvement of an influential person was causing an impediment to the fair investigation by the local police. The petitioner has relied upon (a) audio/video recordings; (b) mobile phone call details (c) the reports or complaints sent by Canadian Embassy; (d) the complaint sent by his friend Ravinder Grewal @ Robin; and (e) the reports of Truth Labs etc. etc. to substantiate his allegations. The veracity of these allegations or counter- allegations can be determined only by the Special Court after the evidence is led by the parties. The investigating agency whosoever may be has got no jurisdiction to pronounce a verdict on the guilt or innocence of the petitioner. The Enforcement Directorate has declared the said amount of ₹ 1 crore as an illicit income and the matter is sub judice before the Special Judge, hence it is not expedient or desirable to comment upon the merits of such allegations. The plea that the pharmaceutical industries located outside the State of Punjab have been implicated in total abuse of the police powers rests on the premise that such manufacturing units are duly licensed by the State Drug Controller(s) or the Narcotic Control Bureau whereunder they are lawfully entitled to manufacture, distribute, sell, purchase and possess the controlled substances included in Schedule A of NDPS Act. The breach of any condition prescribed in these licences or the Rules, it was urged, may entail penal consequences at the instance of the Licensing Authorities but the Punjab Police has got no power to slap NDPS cases on the petitioners. - The plea taken by the manufacturers/proprietors of pharmaceutical units that the alleged violation of the terms and conditions of their licences would not clothe the police to slap a case under the NDPS Act thus carries no weight and deserves to be rejected. Objection against the jurisdictional competence of Punjab Police in registering cases against proprietors of pharmaceutical units located in State of Himachal Pradesh prima facie cannot be entertained at this stage. If the trails of the crime originating from those units were traced out in the Punjab territory also, it would be totally farcical to contend that Punjab Police cannot step in or take action against the suspects. - The very genesis of these drug scam cases lies in the police version that the proprietors or managers of the pharmaceutical units are involved in the illicit sale of their stocks of controlled substances like Ephedrine or Pseudoephedrine which have been supplied to them at concessional rates for manufacturing drugs but have been siphoned to the drug mafia for a hefty price. Both the controlled substances are stated to be the major constituents for manufacturing Methamphetamine (ICE). One of the Pharmaceutical units of Jagjit Singh Chahal i.e. MBP Pharmaceutical Private Limited approached Hon ble High Court of Himachal Pradesh in CWP No.3496 of 2014, questioning the legality of searches and seizures conducted by Punjab Police in its premises on 15th & 16th November, 2013, on the ground that the due procedure and mandate of law was not followed and its action was without any jurisdiction . The High Court dismissed the writ petition vide order dated 20th August, 2014 being premature but only after observing that in the given circumstances, prima facie, it appears that the writ petition filed before this Court is an afterthought, just to hamper the investigation, which has been conducted by the Punjab Police. - So far as the common grounds taken by most of the petitioners are concerned, it may be seen that they have attempted to cause a dent and create doubt in the prosecution s theory. They have made whole-hearted attempts to falsify the manner in which illicit drugs are reported to have been recovered. We do not deem it necessary to express any opinion in this regard for if the police version is found meritless by the Special Court, the prosecution case is bound to collapse. The petitioners in these cases thus want this Court to accept their oral or documentary evidence and give a verdict of their innocence after discarding the police version. Alternatively, they have suggested that the Court direct the CBI or any other independent agency to appreciate the merits of their evidence and proof of varied nature and discharge them from the criminal proceedings. - filing of charge-sheet under Section 173 CrPC or framing of charges alone will not divest a Constitutional Court from directing re-investigation by another agency. This Court, however, cannot overlook the fact that on completion of investigation, the police has already submitted charge-sheets in all the cases subject to any supplementary report which may be submitted under Section 173(8) CrPC. In some of the cases, prosecution has already started its evidence. In the absence of any exceptional circumstances where this Court must intervene and do complete justice, we are satisfied that the appropriate recourse at this stage is to follow the dictum in (i) Disha 2011 (7) TMI 1135 - SUPREME COURT and (ii) Sudipta Lenka cases (2015 (11) TMI 130 - SUPREME COURT) and hold that the power to refer a case for further investigation to an independent agency like CBI, ought not to be invoked after filing of the chargesheet by the local police. Even as a cumulative effect of all the contentions raised on their behalf, the petitioners have failed to make out a case within those exceptional circumstances where this Court either, in exercise of its writ jurisdiction under Article 226 of the Constitution or inherent powers under Section 482 CrPC, can entrust these matters for a fresh or re-investigation to CBI or any other agency. These petitions are resultantly dismissed and the interim orders staying the trial Court proceedings are vacated and the Special Courts are directed to proceed with the cases in accordance with law subject to the effect of directions issued hereinafter - It is indisputable that mere boasting of recovery or unearthing the drug-business worth rupees thousands crore or branding one or the other accused as the kingpin is neither the first nor the last nail in the coffin of this menace. The high rank police officers, preferably with specialized trainings ought to have taken the call as soon as the first case was detected. There could be better coordination not only between intra-district police but with the agencies of neighbouring States as well. Since the cases in hand have been given so much publicity as if illicit drugs would never surface in the State of Punjab, it is the duty of Police administration to ensure that every case is taken to its logical conclusion. Society has a fundamental human right to live free from drugs. The failure of the prosecution agency to lead credible evidence so as to bring the guilt home in every case would lead to most agonizing disappointment and frustrations in a peace loving citizen. The upper echelons in the Police thus need to remind themselves of their duties as the statesmen of law and order machinery. Since all the opportunities have not gone out of hand and necessary lacunae can still be filled in through supplementary reports, and false accusations (if any) can be dropped, we direct the State of Punjab, in the interest of complete justice, to constitute a Supervisory Team comprising the three IPS Officers who shall within three days of the receipt of copy of this order take stock of the situation and examine the charge-sheets already filed in each of the subject FIRs - Appeal disposed of.

Summary

Issues Involved:
1. Request for independent investigation by the Central Bureau of Investigation (CBI).
2. Allegations of false implication and illegal arrest.
3. Compliance with licensing and regulatory requirements.
4. Procedural violations during search and seizure.
5. Allegations of police misconduct and bribery.
6. Jurisdictional competence of Punjab Police.
7. Political victimization claims.
8. Evaluation of evidence and credibility of investigation.

Issue-wise Detailed Analysis:

1. Request for Independent Investigation by CBI:
The petitioners sought an independent investigation by the CBI into several FIRs, alleging that the ongoing investigations by the Punjab Police were biased and lacked credibility. The court acknowledged the serious nature of the allegations but emphasized that such power should be exercised sparingly and only in exceptional circumstances. The court concluded that the petitioners failed to make out a case for re-investigation by an independent agency, noting that the investigation by Punjab Police was being monitored and that the petitioners' contentions could be addressed by the Special Courts.

2. Allegations of False Implication and Illegal Arrest:
Petitioners like Jagjit Singh Chahal and Manpreet Singh @ Mani Gill alleged false implication and illegal arrest. Chahal contended that his arrest and the subsequent searches were conducted in gross violation of mandatory procedures. Gill alleged that his arrest was a result of a demand for bribe by the police. The court noted that these allegations were contentious and could only be adjudicated by the Special Courts after considering the evidence presented by both sides. The court did not find sufficient grounds to transfer the investigation based on these allegations alone.

3. Compliance with Licensing and Regulatory Requirements:
Petitioners argued that their pharmaceutical units were operating under valid licenses and that any alleged violations should be addressed by the licensing authorities, not under the NDPS Act by the Punjab Police. The court rejected this argument, stating that misuse of controlled substances constitutes an independent offense under the NDPS Act and is severely punishable. The court emphasized that the Special Courts were the appropriate forums to adjudicate these factual disputes.

4. Procedural Violations During Search and Seizure:
Petitioners like Chahal alleged that searches and seizures were conducted without following mandatory procedures, such as informing the local police or drug authorities. The court acknowledged these allegations but held that the veracity of these claims could only be determined by the Special Courts. The court directed the Supervisory Team to re-examine these issues and take necessary remedial steps.

5. Allegations of Police Misconduct and Bribery:
Gill alleged that his arrest was a result of a demand for bribe by the police, supported by audio/video recordings and call details. The court noted that these allegations were under judicial scrutiny and should be addressed by the Special Courts. The court did not find these allegations sufficient to warrant a transfer of investigation.

6. Jurisdictional Competence of Punjab Police:
Petitioners argued that Punjab Police lacked jurisdiction to investigate pharmaceutical units located in other states. The court rejected this argument, stating that if the trails of the crime originated from those units and were traced in Punjab, the police had the authority to take action. The court emphasized that jurisdictional issues could be addressed during the trial.

7. Political Victimization Claims:
Petitioners like SI Sarabjit Singh and Maninder @ Bittu Aulakh claimed political victimization. The court found these claims unconvincing, noting that the petitioners failed to provide credible evidence of political influence or victimization. The court held that these allegations could be addressed during the trial.

8. Evaluation of Evidence and Credibility of Investigation:
The court acknowledged that the investigation by Punjab Police lacked scientific methodology and had apparent gaps. However, it directed the Supervisory Team to re-examine the charge-sheets and take necessary remedial steps. The court emphasized that the Special Courts were the appropriate forums to evaluate the evidence and determine the credibility of the investigation.

Conclusion:
The court dismissed the petitions seeking independent investigation by the CBI, directing the Special Courts to proceed with the cases. The court also constituted a Supervisory Team to re-examine the charge-sheets and address any gaps or missing links in the investigation. The court's observations were not to influence the merits of the cases, which were to be determined independently by the Special Courts.