2017 (8) TMI 1025 - HC - Customs

Court Upholds Investigation in Criminal Case without Formal FIR: NDPS Act Authority

Parmeshwar Vyas Versus Union of India

The court dismissed the Criminal Misc. Petition seeking to quash proceedings under DRI File, emphasizing the ongoing investigation's validity without a ... Jurisdiction - power of DRI to arrest a person - case of petitioner is that no formal FIR was lodged in this case and without lodging of FIR, the DRI Officers were not competent to either arrest the petitioner or record the statement under Section 67 of the Act and seize the contraband or proceed in any manner - It is further contended that the powers of an investigating officer is similar to that of a police officer and the NDPS Act specifically makes a provision that the provisions of the Code of Criminal Procedure would apply, meaning thereby that a formal FIR is required to be lodged before proceedings in the case. Held that: - The NDPS Act deals with the two situations, one when the offence is investigated by a police officer and the other when offence is investigated by an officer authorized by the Central Government or State Government in accordance with Section 53 of the Act. The Act further provides that if the matter is investigated by a police officer, the Special Court would take cognizance on submission of a police report but if the matter is investigated by an officer authorized by the Central or State Government, the Special Court would take cognizance upon complaint being filed by such officer. There is no provision whatsoever under the Act directing the officer authorized by the Central or State Government to lodge an FIR, meaning thereby that the officer authorized by the Central or State Government may investigate a matter and after investigation if some case is made out, they can file a complaint straightway before the Special Court. If such complaint discloses commission of offence, the Special Court under Section 36A(1)(d) would take cognizance of the offence. Reliance placed in the case of Kishin S. Loungani v. Union of India, [2017 (1) TMI 1066 - KERALA HIGH COURT], wherein the Kerala High Court was dealing with a case under the Customs Act. Section 104 of the Customs Act gives power of arrest to an officer of Customs. The Court held that registration of FIR is not necessary before arrest. Similarly Section 42 of the NDPS Act empowers the officers authorized by the Central or State Government to enter, search, seize and arrest without warrant or authorization - In the present case in hand also, the Act empowers the officers authorized by the Central or State Government to search, seize and arrest a person and there is no mandatory requirement that a FIR is required to be lodged before proceeding to search, seize or arrest. That being so, the objection that the DRI Officers could not investigate and arrest without lodging of the FIR do not have any force. Petition dismissed - decided against petitioner. Issues:1. Quashing of proceedings under DRI File No. DRI/MZU/C/INTE-109/2016 without formal FIR.2. Requirement of formal FIR for arrest, statement recording, and seizure under NDPS Act.3. Allegation of no offence against the petitioner and procedural irregularities.4. Authority of Revenue Intelligence Officer under Section 53 of NDPS Act.5. Comparison with relevant case laws and legal precedents.6. Special Court's jurisdiction and procedure under NDPS Act.7. Application of Code of Criminal Procedure in NDPS Act investigations.Analysis:1. The petitioner sought to quash proceedings under DRI File citing the absence of a formal FIR. The petitioner's counsel argued that without an FIR, DRI Officers lacked authority for actions like arrest, statement recording, and seizure under the NDPS Act.2. The petitioner's counsel emphasized the necessity of a formal FIR, pointing to Section 36C of the NDPS Act. They contended that no offence was established against the petitioner, as no contraband was found at his premises, and his statement under Section 67 did not implicate him in any NDPS Act violation.3. The Union of India's counsel opposed the petition, citing Section 53 of the NDPS Act, which authorizes officers like Revenue Intelligence Officers to act akin to Station House Officers. They argued that no FIR was required if investigations were conducted by authorized officers, as per Section 36A(1)(d).4. Legal precedents like Kishin S. Loungani v. Union of India and Raj Kumar Karwal v. Union of India were referenced to support the authority of officers under the NDPS Act and the Special Court's jurisdiction. The court clarified that the Act's provisions supersede the Code of Criminal Procedure in relevant matters.5. The court highlighted that the NDPS Act empowers officers to act without a formal FIR in cases of arrest, search, and seizure. It was emphasized that the petitioner's association with the main accused warranted further investigation before considering quashing the proceedings.6. The court affirmed that the Special Court's exclusive jurisdiction under the NDPS Act for offences punishable with more than three years' imprisonment negates the need for traditional procedures like filing a complaint before a magistrate.7. Ultimately, the court dismissed the Criminal Misc. Petition, emphasizing that the ongoing investigation and absence of a filed complaint precluded any grounds for quashing the proceedings related to the DRI File. The decision highlighted the Act's provisions empowering officers to act without a formal FIR in specific circumstances.