1990 (7) TMI 238 - HC - Customs

Summary

Issues Involved:
1. Legality of committal order without conducting an enquiry under Section 202(2) of the Code of Criminal Procedure.
2. Applicability of the Full Bench decision in Moideenkutty Haji v. Kunhikoya to complaints filed by public servants.
3. Powers of officers under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) to file complaints.
4. Jurisdiction of Sessions Judge to quash an illegal committal order.

Detailed Analysis:

1. Legality of Committal Order Without Conducting an Enquiry Under Section 202(2) of the Code of Criminal Procedure:
The Sessions Judge contended that the order of committal was illegal as the Magistrate did not conduct an enquiry under Section 202(2) of the Code of Criminal Procedure, as required by the Full Bench decision in Moideenkutty Haji v. Kunhikoya. The Full Bench held that a Magistrate must conduct a mandatory enquiry in complaint cases under Section 202 and examine all witnesses on oath. The purpose of this mandatory enquiry is to ensure that the accused in a complaint case is in the same advantageous position as in a police charge case, with sufficient materials for the prosecution to avoid easy discharge under Section 227 of the Code of Criminal Procedure.

2. Applicability of the Full Bench Decision in Moideenkutty Haji v. Kunhikoya to Complaints Filed by Public Servants:
The judgment clarified that the Full Bench decision in Moideenkutty Haji v. Kunhikoya applies to private complaints and not to complaints filed by public servants under Section 190(1) of the Code of Criminal Procedure. Complaints by public servants acting in their official capacity are presumed to be reasonable and not vexatious, and hence, the statutory requirement for examination of the complainant and witnesses is dispensed with. The materials collected during the investigation by public servants are considered sufficient for the prosecution, placing the accused in a similar advantageous position as in a police charge case.

3. Powers of Officers Under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) to File Complaints:
The judgment highlighted that officers empowered under the NDPS Act are not police officers and cannot file a charge-sheet under Section 173(2) of the Code of Criminal Procedure. Instead, they must file a complaint under Section 190 of the Code. The Supreme Court in Rajkumar Karwal v. Union of India clarified that the powers of investigation and enquiry conferred upon officers under the NDPS Act are distinct from those of police officers, and the Special Court can take cognizance of the offence upon a formal complaint made by such authorised officers.

4. Jurisdiction of Sessions Judge to Quash an Illegal Committal Order:
The Sessions Judge correctly stated that he does not have the power to quash an illegal order of committal, as established in the rulings of this Court in State v. Baby and John Samuel v. State of Kerala. The Sessions Judge must take cognizance of the offence under Section 193 of the Code of Criminal Procedure if the committal order is found to be legal and proper.

Conclusion:
The order of committal was deemed legal and proper as the complaint was filed by a public servant with sufficient materials collected during the investigation. The Full Bench decision in Moideenkutty Haji v. Kunhikoya does not apply to complaints filed by public servants. The Sessions Judge is bound to take cognizance of the offence, and the reference was not accepted. The judgment also emphasized the need for constituting Special Courts for the speedy trial of offences under the NDPS Act, as the current procedure before the Sessions Court is cumbersome and time-consuming.