The learned Judge on the basis of the material on record has
recorded his prima facie opinion about the commission of an
offence under Section 59 of N.D.P.S. Act by this applicant.
The learned Judge has not awarded any sentence to him. So
the right of the accused to meet the case which he would be
made to face has not in any way tinkered with or taken away.
18. It is to be noted that the approach of the learned
Judge being Special Judge under the N.D.P.S. Act is consistent
with the object and spirit of the enactment. It is to be noted
that while implementing the provisions of the enactment such
as N.D.P.S. Act all concerned at their respective place are
required to demonstrate equal seriousness. If such seriousness
is not demonstrated then it can frustrate the object and
intention of such enactment. It needs to be stated that in
order to ensure such seriousness by all concerned the stringent
provisions have been made. Section 59 of the N.D.P.S. Act is
one such stringent provision. It provides for penal
consequences in case of an act by anyone, which is not
consistent with the object and intention. It is submitted that
the opportunity was not given to him to explain the reasons
for delay in filing the charge sheet. In my view, this objection
can be taken care of by perusing the questions put to the
applicant and answers given by him. He has categorically
stated that investigation was complete on 13.10.2021. It is not
his case that after these questions by the Court and answers
given by him, he was in any manner prevented by the Court
from placing on record his explanation. The questions put to
him and answers given by him to those questions clearly
indicate that he was granted an opportunity to explain each
and every aspect. In fact the applicant has admitted that in all
respect the investigation was completed on 13.10.2021.
Applicant had an opportunity to place his detailed explanation
on record when he was called upon to file the say to the bail
application. The perusal of the say or reply to the bail
application would show that it was conspicuously silent
about the reasons for delay in filing the charge sheet. In fact
the say filed by the prosecutor on 27.01.2022 would reveal
that on phone, he had questioned the applicant about the
delay in filing the charge sheet. However, he did not answer
him. He finally went to meet him on 28.01.2022. It is,
therefore, seen that throughout the proceeding, he has not
placed the reasons for delay in filing the charge sheet on
record. It is, therefore, seen that the failure on his part is
serious wrong. Learned judge has found that this wrong is
fully covered within the dragnet of Section 59 (1) of the
NDPS Act.
25. In my view, therefore, this decision recognizes the
powers of the court to pass such an order. It is true that in this
case, the order of initiation of disciplinary action was passed.
The question whether the case warrants a disciplinary action
or penal action depends upon the facts and circumstances of
each and every case. In this case, the learned Judge found it
appropriate to order initiation of a penal action as provided
under Section 59 of N.D.P.S. Act. It needs to be stated that as
and when it is found by any Court at any stage of proceeding
that the actionable wrong within the meaning of Section 59 of
the N.D.P.S. Act has been committed then in that event it has
to be approached and dealt with firmly by initiating an
appropriate action. In this view of the matter, I do not see any
substance in the revision. The same is accordingly dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.106 OF 2022
Ashish Devidas Morkhade Vs State of Maharashtra
CORAM : G. A. SANAP, J.
DATE:- 21/04/2023
1. Rule. Rule made returnable forthwith. Heard finally
by consent of learned Advocates for the parties.
2. In this criminal revision application, challenge is to
the order passed by the learned Special Judge (N.D.P.S. Act)
dated 08.04.2022 whereby, the learned Judge has directed
Special I.G., Nagpur Zone and Superintendent of Police,
Nagpur (Rural) to take action for registration of crime against
PW-10 Aashish Devidas Morkhade, Investigating Officer for
the offences found to have been prima-facie committed by
him.
3. The relevant facts are as follows:-
The applicant -Aashish Devidas Morkhade is Police
Sub Inspector. At the relevant time he was attached to Police
Station, Butibori, Nagpur. Crime bearing No.318/2021 was
registered at Butibori Police Station for commission of
offences under Section 20(b) and Section 29 of Narcotic
Drugs and Psychotropic Substances Act, 1985 (herein after
referred as N.D.P.S. Act) against three accused persons. The
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contraband recovered in the case was Ganja weighing 78.360
Kg. The investigation for the said crime was entrusted to the
applicant. He carried out the investigation from 27.08.2021.
Prior to this date the investigation was carried out by A.P.I.
Shri Manik Choudhary. After completion of the investigation,
the charge sheet was not filed within time namely within 180
days from the date of the production of the accused before
concerned Court for remand. The accused, therefore, on
25.01.2022 applied for bail under Section 167(2) of the
Cr.P.C. in short default bail. The prosecutor filed the say in the
said proceeding. The Special Court by order dated 28.01.2022
allowed the bail application and granted bail to the accused on
the ground of failure of the applicant to file the charge sheet
within time.
4. Learned Special Judge while passing the bail order
made certain observations against the applicant. The learned
Judge at the stage of deciding the bail application prima-facie
found that this act of the applicant was an offence punishable
under Section 59(1) of the N.D.P.S. Act. While deciding the
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bail application the direction was issued to the Special I.G.,
Nagpur Zone and Superintendent of Police, Nagpur (Rural)
for initiating necessary action against the applicant. It is to be
noted that pursuant to this direction, departmental proceeding
was initiated against him. He was suspended.
5. The prosecution adduced the evidence in the main
trial. The Special Judge by his order dated 08.04.2022
convicted and sentenced the accused. The learned Judge on
consideration of the facts, circumstances and available
evidence on record prima-facie found that this act on the part
of the applicant was intentional and as such it was an offence
under Section 59 of the N.D.P.S. Act. The learned Judge
accordingly issued the direction to the Special I.G., Nagpur
Zone and Superintendent of Police, Nagpur (Rural) for
registration of crime at appropriate Police Station against
PW10- Aashish Devidas Morkhade.
6. Being aggrieved by this order, the applicant has
approached this Court. It is the case of the applicant that there
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was no negligence or any misconduct on his part. It is his case
that delay occasioned for filing of the charge sheet was
properly explained by him. It is further stated that he has
been facing the department proceeding for this lapse. It is
further stated that the learned Special Judge has no
jurisdiction to issue such direction. According to the applicant,
he took all possible steps to file the charge sheet within time.
However, due to the circumstances which were beyond his
control, he could not file the same within time. It is,
therefore, submitted that the order which would ruin his
entire service career needs to be set aside.
7. The Police Inspector, Police Station Butibori, filed
his detailed affidavit and opposed this application. In short, in
his reply, the in-charge of the Butibori Police Station has
stated that the order passed by learned Special Judge is in
accordance with law. In the reply, the chart of the dates and
events has been provided to demonstrate that the applicant
was responsible for this mess and, therefore, he has to face the
consequences. It is further stated that except the applicant no
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other officer was responsible for this mess.
8. I have heard Shri A.M. Jaltare, learned Advocate for
the applicant and Shri A.M. Chutke, learned APP for the
State. Perused the record and proceedings.
9. Learned Advocate for the applicant submitted that
learned Special Judge exceeded his jurisdiction by issuing
direction to the Special I.G. Nagpur for registration of the
First Information Report against the applicant and also to take
necessary action for obtaining the sanction for his prosecution.
Learned Advocate submitted that learned Special Judge was
expected to make the relevant observations touching the issue
in his order and issue the direction to the I.G. to explore the
possibility of initiation of appropriate proceeding as per law
against the applicant. Learned Advocate submitted that
applicant was not given an opportunity to explain the
circumstances before passing the order against him. Learned
Advocate submitted that there is no material on record to
sustain the findings and ultimate order passed by the learned
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Special Judge. Learned Advocate submitted that at the most
the case in question would be fit for issuing direction for
conducting the departmental inquiry and not more than that.
In order to substantiate his submission learned Advocate has
placed reliance on three reported decisions. Learned Advocate
further submitted that the intention of the applicant as has
been attributed to him has not been supported by the record.
Learned Advocate submitted that despite granting bail to the
accused they were not able to furnish the security and as such
they could not come out of jail till the judgment, which
resulted into their conviction and sentence.
Learned Advocate further submitted that no doubt
was raised about the fairness of investigation because the
investigation and the evidence collected during the course of
investigation has resulted into conviction of the accused.
Learned Advocate submitted that these two facts are required
to be taken into consideration.
10. Learned APP submitted that at the time of
recording of the evidence of applicant as PW-10 he was given
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an opportunity by the learned Special Judge to explain the
relevant facts and circumstances. Learned APP took me
through the deposition of PW-10 and pointed out that learned
Special Judge by exercising his power put number of questions
to the applicant. Learned APP submitted that while answering
those questions, he has indirectly admitted serious lapses on
his part. Learned APP further took me through the reply filed
by the learned APP to the bail application made by the
accused under Section 167(2) and submitted that learned APP
was not properly appraised about this fact by the Investigating
Officer. Learned APP further submitted that in the reply filed
under the signature of the applicant to the said application, no
categorical statement was made as to the delay occurred in
filing the charge sheet in time. Learned APP submitted that
considering the serious nature of the matter and the evidence
on record the learned Special Judge was right in passing the
order. Learned APP has relied upon a decision in the case of
Sahabuddin and Another Vs. State of Assam reported in
(2012) 13 SCC 213 to substantiate his submission that
learned Special Judge has power to issue such a direction.
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11. Before I proceed to appreciate the rival submissions,
it would be necessary to state that the N.D.P.S. Act was
enacted in the year 1985 because the then existing enactments
were not found sufficient or they had become out dated to
take care of the menace of Narcotic Drugs. This Act was
enacted with an object to consolidate and amend the law
relating to Narcotic Drugs to make stringent provisions for the
control and regulation of operations relating to Narcotic
Drugs and Psychotropic Substances and to provide for
forfeiture of property derived from and used in illicit traffic in
Narcotic Drugs and Psychotropic Substances. The necessity
was felt for the purpose of the implementing the provisions of
the international conventions on Narcotic Drugs and
Psychotropic Substances, Act. Consistent with this object and
reasons behind enactment, stringent provisions have been
made with regard to the punishment for the proved crime.
Similarly, in order to avoid the misuse of this crime, ample
checkes and balances have been provided by enacting the
mandatory provisions. Those provisions can be traced from
Section 41 to Section 57. Section 59 has also been enacted
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consistent with this object and reason behind enactment of the
N.D.P.S. Act. Section 59 provides the punishment for the
offences relating to the failure of an officer in duty or his
connivance in the contravention of the provisions of N.D.P.S.
Act. It is to be noted that while deciding the cases under
N.D.P.S. Act as well as any action proposed to be taken under
Section 59 of the N.D.P.S. Act, a great care is required to be
taken. Every action and step must be in a direction to fulfill
the very object of the enactment of the N.D.P.S. Act. There
was specific object behind the provisions in the form of
Section 59. The law makers in their wisdom expected that all
concerned in implementing the N.D.P.S. Act must be
cautious and serious about their duty. In this case, the above
stated facts would be required to born in mind.
12. The relevant facts which gave rise for this order
have been stated in the order by the learned Special Judge. It
is seen that on 27.08.2021 the investigation was handed over
to the applicant. The applicant has not stated that he was not
aware of the mandate of the law. Before handing over the
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investigation to him on 27.08.2021, the investigation was
conducted by API Mr. Manik Choudhary. On 24.09.2021
the C.A. report after analysis of the samples was received at
Police Station. On 01.10.2021 the inventory was prepared and
certified by the Judicial Magistrate, First Class Nagpur. The
applicant recorded last statement of the witness on 01.10.2021.
13. The undisputed facts which could be seen from the
record indicate that the approach of the applicant was careless,
casual and not in consonance with the provisions of law.
Despite receipt of the CA report on 24.09.2021, again on
12.10.2021 he forwarded requisition to FSL, Nagpur for C.A.
report of the samples. FSL, Nagpur, on the very next date
i.e. 13.10.2021 communicated in writing to the applicant that
samples were already analyzed and the CA report and relevant
samples were returned back to the Police Station. This fact
would show that applicant despite receipt of CA report, from
24.09.2021 to 12.10.2021 was sitting idle. The requisition
sent by him to FSL on 12.10.2021 would reflect upon his
serious misconduct.
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14. It is, therefore, seen that on 13.10.2021 he was
made aware that CA report was already forwarded after
analyzing the samples to the Police Station. So from
13.10.2021, no further investigation was carried out by him.
From 13.10.2021 to 26.11.2021 he did not take steps for filing
the charge sheet. On 26.11.2021 he submitted the case diary
for scrutiny to S.D.P.O, Nagpur (Rural). The S.D.P.O.
Nagpur (Rural) returned the case diary to the applicant on
08.12.2021. The applicant submitted the case diary with
papers for verification to Additional Superintendent of Police,
Nagpur on 10.12.2021. The Additional S.P. returned the case
diary with papers to the applicant on 28.12.2021. According
to the applicant, till 14.01.2022 the investigation of the crime
was with him. It is seen that from 29.12.2021 to 14.01.2022
he did not file the charge sheet in the Court. He has come
before this Court with an explanation that he was busy in the
investigation of other crimes entrusted to him by his superior.
It needs to be stated that the police officer attached to the
Police Station is bound to be entrusted with the investigation
in more than one crime. This cannot be the ground and
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justification for not filing the charge sheet in a case where
investigation is complete in all respect. It is further pertinent
to note that for the purpose of filing the charge sheet, the
investigation officer is not personally required to carry the
papers to the court. Such work is required to be done by the
court Moharir or constable attached to said police station. In
this case, the applicant failed to take the requisite care.
15. At this stage, it is pertinent to note that the crime in
question by any standard was serious crime. In this crime
78.360 Kg Ganja was recovered. The officer has not stated
that he was not aware of the provisions of the N.D.P.S. Act.
Similarly, such defence cannot be accepted. It is to be noted
that in serious crimes like crime relating to human body
punishable under Section 302 I.P.C. the custody period
cannot be extended beyond 90 days. In such serious crime
charge sheet has to be filed within 90 days. There is no
provision for extension of period. As per the provisions of
N.D.P.S. Act initial judicial custody period is of 180 days. It is
further seen that there is provision for extension of this period
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to further 180 days. In this context, the action of this
applicant is required to be examined. During this period, as
stated above, if he had any difficulty in filing the charge sheet,
it was open for him to approach the prosecutor and make an
application for extension of time. No steps were taken by
him. It is stated that on his application, leave was sanctioned
to him from 15.01.2022 to 29.01.2022. However, he resumed
his duties on 25.01.2022. The period of 180 days expired on
28.01.2022. The right to apply for default bail accrued in
favour of the accused on 21.01.2022. They applied for default
bail on 25.01.2022. The bail was granted on 28.01.2022. All
these facts in totality are required to be taken into
consideration.
16. In the backdrop of serious objection having been
raised to the order passed by the Learned Special Judge, it
would be necessary to examine the relevant part of the order.
It would also be necessary to see the evidence of applicant.
Perusal of his evidence which is on record at page 138 would
show that after completion of the cross examination of the
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applicant on behalf of the defence, the learned Judge asked
near about 10 questions to the applicant. The object behind
these questions was to seek his explanation about this fact. It
is to be noted that learned Judge was aware of real state of
affairs because he had decided the bail application and at that
time he was confronted with the serious lapse on the part of
the Investigating Officer. Applicant has admitted that
investigation was complete in all respect on 13.10.2021. He
has admitted that he was aware that charge sheet has to be
filed in such crime within 180 days from the date of the arrest
of the accused. He has stated that CA report was already
available with him. He has stated that due to inadvertence,
charge sheet remained to be filed. It is seen that on all the
relevant aspects he was questioned. The answers given by him
have been taken into consideration by the learned Judge.
17. At this stage, it is necessary to examine the powers
of the learned Judge to put such questions to the witness.
Section 165 of the Indian Evidence Act 1872 empowers the
Judge to put questions to the witness or order production of
document. The learned Judge put all the questions to PW-10
in exercise of his power under Section 165 of the Evidence
Act. The learned judge was not only cautious of rights of the
applicant but also the rights of the accused persons and the
prosecution. The learned Judge after completion of the
questions by him to the applicant granted the accused and
prosecution an option to cross examine or to ask any question
to the applicant in the context of the answers given to the
Court questions by the applicant. The record reveals that they
declined this offer. It is therefore, apparent that the objection
raised on behalf of the applicant that before passing the order
he was not granted an opportunity to defend himself
appropriately is without substance. It is to be noted that this
objection cannot be accepted for more than one reason. The
learned Judge on the basis of the material on record has
recorded his prima facie opinion about the commission of an
offence under Section 59 of N.D.P.S. Act by this applicant.
The learned Judge has not awarded any sentence to him. So
the right of the accused to meet the case which he would be
made to face has not in any way tinkered with or taken away.
18. It is to be noted that the approach of the learned
Judge being Special Judge under the N.D.P.S. Act is consistent
with the object and spirit of the enactment. It is to be noted
that while implementing the provisions of the enactment such
as N.D.P.S. Act all concerned at their respective place are
required to demonstrate equal seriousness. If such seriousness
is not demonstrated then it can frustrate the object and
intention of such enactment. It needs to be stated that in
order to ensure such seriousness by all concerned the stringent
provisions have been made. Section 59 of the N.D.P.S. Act is
one such stringent provision. It provides for penal
consequences in case of an act by anyone, which is not
consistent with the object and intention. It is submitted that
the opportunity was not given to him to explain the reasons
for delay in filing the charge sheet. In my view, this objection
can be taken care of by perusing the questions put to the
applicant and answers given by him. He has categorically
stated that investigation was complete on 13.10.2021. It is not
his case that after these questions by the Court and answers
given by him, he was in any manner prevented by the Court
from placing on record his explanation. The questions put to
him and answers given by him to those questions clearly
indicate that he was granted an opportunity to explain each
and every aspect. In fact the applicant has admitted that in all
respect the investigation was completed on 13.10.2021.
Applicant had an opportunity to place his detailed explanation
on record when he was called upon to file the say to the bail
application. The perusal of the say or reply to the bail
application would show that it was conspicuously silent
about the reasons for delay in filing the charge sheet. In fact
the say filed by the prosecutor on 27.01.2022 would reveal
that on phone, he had questioned the applicant about the
delay in filing the charge sheet. However, he did not answer
him. He finally went to meet him on 28.01.2022. It is,
therefore, seen that throughout the proceeding, he has not
placed the reasons for delay in filing the charge sheet on
record. It is, therefore, seen that the failure on his part is
serious wrong. Learned judge has found that this wrong is
fully covered within the dragnet of Section 59 (1) of the
19. I have minutely perused the reasons recorded by
the learned Judge. The learned Judge has placed on record his
anguish. The learned Judge on the basis of the material
collected during the course of investigation convicted the
accused persons. However, despite conviction of the accused
persons, learned Judge deemed it appropriate to issue the
direction which has been questioned in this revision.
20. It is to be noted that first priority is required to be
given to the investigation by Investigating Officer. It is
observed that first priority is not given for conducting the
investigation. The failure to display the promptness in
conducting the investigation in serious crime can result in
either tampering with the prosecution evidence or vanishing
of the said evidence. The fate of the case of the prosecution
depends upon the quality of the investigation. Prompt, swift
and careful investigation is necessary to ensure the fairness.
Such investigation can bring about a quality to the
investigation. It is observed that by and large a casual
approach is adopted in conducting the investigation even in
the serious crimes. This case is classic example of it. The
misconduct on the part of the investigating officer, despite
completion of investigation well in time, has extended the
benefit of default bail to the accused. It is true that the accused
could not furnish the surety and therefore, they could not
come out of the jail. However, it does not mean that on this
ground the investigation officer would get himself exonerated
from the dragnet of Section 59 of the N.D.P.S. Act.
21. In my view, therefore, learned Special Judge was
well within his power. Learned Special Judge has not exceeded
his jurisdiction. Learned Judge has simply directed IG to take
action for registration of crime against the applicant. It is
submitted that order of the learned Judge directing them to
obtain sanction is not according to law. On going through the
order, I am of the opinion that learned Judge has not given
any direction for obtaining the sanction. Learned Judge has
stated about an appropriate action for registration of crime
and sanction for prosecution. It is not out of place to mention
that after registration of the First Information Report, the
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investigation may be carried out. Investigation may result in
filing of the charge sheet or filing of report under Section 169
or A, B, C summary. If there is material to file charge sheet
then question of obtaining sanction would arise. In that event
depending upon the result of the investigation, the officer
would be required to move either the Central Government or
the State Government for the sanction. It, therefore, cannot be
said that learned Judge has directed them to obtain the
sanction and prosecute him by side tracking the provisions of
law.
22. At this stage, it would be necessary to mention that
unless and until the Courts at every stage takes serious view of
such a matter, the police officer would not improve. It is to be
noted that investigation is the most important part of the
criminal justice system. The fate of entire case of prosecution
depends upon the quality of the investigation. It is, therefore,
high time to send an appropriate message to all concerned, as
and when the Court is confronted with such a case. It is to be
noted that quality of investigation is one of the factors for
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dismal rate of conviction. It is observed that in number of
cases a very casual and careless approach is adopted by the
Investigating Officer. There could be number of reasons.
Whatever be the reasons, the Courts as and when confronted
with such case, must deal with the same with iron fist. In my
view, the approach of the learned Special Judge is highly
courageous and commendable. It is noticed that by and large
there is tendency to avoid such steps or action at the behest of
the officer by taking lenient view. In my view, therefore,
learned Judge was well within his jurisdiction. He has not
exceeded his jurisdiction.
23. Learned Advocate relying upon the decision in the
case of Jayrajsinh Madhubha Gadhvi Vs. State of Gujarat
reported in 2022(4) Cri.CC 206 submitted that Court cannot
issue direction to the officer to grant sanction. In my view,
this proposition is not applicable to this case, because learned
Judge has not issued any direction to the competent authority
to grant sanction. Learned Judge has made observation that as
and when any action is taken, the action of
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sanction would also be part of the same. The question of
obtaining sanction in this case would arise if the report or the
charge sheet is proposed to be filed on the basis of the
investigation. The second judgment learned Advocate relied
upon is the case of Ashok Kumar Nigam Vs. State of Uttar
Pradesh and another reported in (2016) 12 SCC 797. In this
case, in the departmental proceeding, the punishment
awarded by the disciplinary authority was increased by the
High Court. The Hon’ble Apex Court in this case has held
that it was an error on the part of the High Court because the
High Court could not have placed the appellant in a worse-off
position for having challenged punishment awarded by the
disciplinary authority. In my view, therefore, the decisions
relied upon by the learned Advocate are not applicable to the
case of the applicant.
24. Learned APP in support of his submissions, has
relied upon the decision in the case of Sahabuddin and
Another Vs. State of Assam (supra). Para 32 of this decision
would be relevant. It is extracted below:-
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“Para 32. In our considered view, action should be
taken against both these witnesses. Before we pass any
direction in this regard, we may refer to the judgment of
this Court in Gajoo Vs. State of Uttarakhand, (2012) 9
SCC 532, where the Court had directed an action
against such kind of evidence and witnesses.
“ 20. In regard to the defective investigation,
this Court in Dayal Singh v. State of Uttaranchal
[Criminal Appeal 529 of 2010, decided on 3rd
August, 2012] while dealing with the cases of
omissions and commissions by the investigating
officer, and duty of the Court in such cases, held
as under:-
“27. Now, we may advert to the duty of the
Court in such cases. In Sathi Prasad v. State of
U.P. (1972) 3 SCC 613, this Court stated that it
is well settled that if the police records become
suspect and investigation perfunctory, it
becomes the duty of the Court to see if the
evidence given in Court should be relied upon
and such lapses ignored. Noticing the possibility
of investigation being designedly defective, this
Court in Dhanraj
Singh v. State of Punjab (2004) 3 SCC 654,
held:-
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“5. In the case of a defective investigation the
Court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting
an accused person solely on account of the
defect; to do so would tantamount to playing
into the hands of the investigating officer if the
investigation is designedly defective.”
28. Dealing with the cases of omission and
commission, the Court in Paras Yadav Vs.
State of Bihar (1999) 2 SCC 126, enunciated
the principle, in conformity with the previous
judgments, that if the lapse or omission is
committed by the investigating agency,
negligently or otherwise, the prosecution
evidence is required to be examined dehors
such omissions to find out whether the said
evidence is reliable or not. The contaminated
conduct of officials should not stand in the way
of evaluating the evidence by the courts,
otherwise the designed mischief would be
perpetuated and justice would be denied to the
complainant party.
29. In Zahira Habibullah Sheikh(5) and
another v. State of Gujarat & Ors. (2006) 3
SCC 374, the Court noticed the importance of
the role of witnesses in a criminal trial. The
importance and primacy of the quality of trial
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process can be observed from the words of
Bentham, who states that witnesses are the eyes
and ears of justice. The Court issued a caution
that in such situations, there is a greater
responsibility of the court on the one hand and
on the other the courts must seriously deal with
persons who are involved in creating designed
investigation. The Court held that-
“42. Legislative measures to emphasize
prohibition against tampering with witness,
victim or informant have become the imminent
and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence
in proceedings before the Courts have to be
seriously and sternly dealt with. There should
not be any undue anxiety to only protect the
interest of the accused. That would be unfair, as
noted above, to the needs of the society. On the
contrary, efforts should be to ensure fair trial
where the accused and the prosecution both get
a fair deal. Public interest in proper
administration of justice must be given as much
importance if not more, as the interest of the
individual accused. In this Courts have a vital
role to play.” (Emphasis in original)
30. With the passage of time, the law also
developed and the dictum of the Court
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emphasized that in a criminal case, the fate of
proceedings cannot always be left entirely in the
hands of the parties. Crime is a public wrong, in
breach and violation of public rights and duties,
which affects the community as a whole and is
harmful to the society in general.
33. In Ram Bali v. State of U.P. (2004) 10 SCC
598, the judgment in Karnel Singh v. State of
M.P (1995) 5 SCC 518 was reiterated and this
Court had observed that: (Ram Bali case, SCC
p. 604- para 12)
“ 12... In case of defective investigation the
court has to be circumspect [while] evaluating
the evidence. But it would not be right in
acquitting an accused person solely on account
of the defect; to do so would tantamount to
playing into the hands of the investigation
officer if the investigation is designedly
defective’.
34. Where our criminal justice system provides
safeguards of fair trial and innocent till proven
guilty to an accused, there it also contemplates
that a criminal trial is meant for doing justice to
all, the accused, the society and a fair chance to
prove to the prosecution. Then alone can law
and order be maintained. The Courts do not
merely discharge the function to ensure that no
innocent man is punished, but also that a guilty
man does not escape. Both are public duties of
the judge. During the course of the trial, the
learned Presiding Judge is expected to work
objectively and in a correct perspective. Where
the prosecution attempts to misdirect the trial
on the basis of a perfunctory or designedly
defective investigation, there the Court is to be
deeply cautious and ensure that despite such an
attempt, the determinative process is not
subvered. For truly attaining this object of a
“fair trial”, the Court should leave no stone
unturned to do justice and protect the interest
of the society as well.
35. This brings us to an ancillary issue as to how
the Court would appreciate the evidence in such
cases. The possibility of some variations in the
exhibits, medical and ocular evidence cannot be
ruled out. But it is not that every minor
variation or inconsistency would tilt the balance
of justice in favour the accused. Of course,
where contradictions and variations are of a
serious nature, which apparently or impliedly
are destructive of the substantive case sought to
be proved by the prosecution, they may provide
an advantage to the accused. The Courts,
normally, look at expert evidence with a greater
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sense of acceptability, but it is equally true that
the courts are not absolutely guided by the
report of the experts, especially if such reports
are perfunctory, unsustainable and are the result
of a deliberate attempt to misdirect the
prosecution. In Kamaljit Singh v. State of
Punjab (2003) 12 SCC 155, the Court, while
dealing with discrepancies between ocular and
medical evidence, held:- (SCC p. 159, para 8)
“ 8. It is trite law that minor variations between
medical evidence and ocular evidence do not
take away the primacy of the latter. Unless
medical evidence in its term goes so far as to
completely rule out all possibilities whatsoever
of injuries taking place in the manner stated by
the eyewitnesses, the testimony of the
eyewitnesses cannot be thrown out.”
36. Where the eye witness account is found
credible and trustworthy, medical opinion
pointing to alternative possibilities may not be
accepted as conclusive.
“34…...The expert witness is expected to put
before the Court all materials inclusive of the
data which induced him to come to the
conclusion and enlighten the court on the
technical aspect of the case by [examining] the
terms of science, so that the court, although not
an expert, may form its own judgment on those
materials after giving due regard to the expert’s
opinion, because once the expert opinion is
accepted, it is not the opinion of the medical
officer but [that] of the Court. (See Madan
Gopal Kakkad v. Naval Dubey (1992) 3 SCC
204).” (emphasis supplied)
21. The present case, when examined in light of
the above principles, makes it clear that the
defect in the investigation or omission on the
part of the investigation officer, cannot prove to
be of any advantage to the accused. No doubt
the investigating officer ought to have obtained
serologist’s report both in respect of Ext. 2 and
Ext. 5 and matched it with the blood group of
the deceased. This is a definite lapse on the part
of the investigating officer which cannot be
overlooked by the Court, despite the fact that it
finds no merit in the contention of the accused.
22. For the reasons afore-recorded, we dismiss
this appeal being without any merit. However,
we direct the Director General of Police,
Uttarakhand to take disciplinary action against
Sub-Inspector, Brahma Singh, PW6, whether he
is in service or has since retired, for such serious
lapse in conducting investigation. The Director
General of Police shall take [a] disciplinary
action against the said officer and if he has since
retired, the action shall be taken with regard to
deduction/stoppage of his pension in
accordance with the service rules. The ground
of limitation, if stated in the relevant rules, will
not operate as the inquiry is being conducted
under the direction of this Court.”
25. In my view, therefore, this decision recognizes the
powers of the court to pass such an order. It is true that in this
case, the order of initiation of disciplinary action was passed.
The question whether the case warrants a disciplinary action
or penal action depends upon the facts and circumstances of
each and every case. In this case, the learned Judge found it
appropriate to order initiation of a penal action as provided
under Section 59 of N.D.P.S. Act. It needs to be stated that as
and when it is found by any Court at any stage of proceeding
that the actionable wrong within the meaning of Section 59 of
the N.D.P.S. Act has been committed then in that event it has
to be approached and dealt with firmly by initiating an
appropriate action. In this view of the matter, I do not see any
substance in the revision. The same is accordingly dismissed.
26. Before parting with the matter, it is necessary to
appreciate the assistance rendered by Shri Amit Chutke,
learned APP to this Court the resolving the issue involved in
the matter.
27. Learned Advocate submits that the applicant would
like to take recourse to the available remedy against this order.
He, therefore prays that interim order may be extended for
three months.
28. Learned APP submits that Court may pass an
appropriate order.
29. In view of this, it is ordered that interim order to
continue for three months from today.
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