AI Drafter 
TaxTMI 
TaxTMI 
2019 (9) TMI 166
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....e Directorate of Revenue Intelligence investigated the matter and submitted File No. DRI/MZU/INT-91 of 2018. The prosecution was initiated against the accused for the offence punishable under Section 8C r/w. 22C of NDPS Act, 1985 and under Sections 28, 29, 23C r/w. 8C of NDPS Act. The accused were produced before the Special Judge, NDPS on 20th October, 2018 and at that time, negative CA report was received by the Investigating agency and therefore, the Special Prosecutor moved an Application under Section 169 of Cr. P.C that investigating agency has decided not to prosecute the accused but to release them and therefore, the judge forthwith released them under Section 169 of Cr. P.C. In absence of the consent given by the Investigating officer, the Application under Section 169 of Cr. P.C. submitted by the prosecutor was illegal and wrong and so the order passed by the Learned Judge. Hence, this writ petition is filed challenging the said order. 4. Learned Prosecutor has submitted that the investigating agency never gave consent to move an Application for release of the accused because the huge quantity of tablet Tramadol, i.e., nearly 2 to 2.44 lakhs tablets of various bra....
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.... the application made under Section 169 of Cr. P.C. can be treated as application made under Section 321 of Cr. P.C. Hence, both the sections are reproduced for the purpose of the comparison. "169. Release of accused when evidence deficient. - If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. 321. Withdrawal from prosecution. - The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, - (a) &....
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....ce at the stage of enquiry or after committal or even before the judgment is pronounced. 10. In the case of Vijaykumar Baldev Mishra (supra) on the point of scope of Section 321 of Cr.P.C. especially about the use of term "with the permission of the Court" and "with the consent of the Court" and also discussed that Section 321 finds the place in the Chapter immediately after Section 320, one will be justified in saying that it should take its colour from the immediately preceding section and in holding that section. In the said case, the Supreme Court has relied on the case of Sheonandan Paswan v. State of Bihar, reported in (1987) 1 SCC 288. However, in the case of Sheonandan Paswan, the Supreme Court held that "all that is necessary for the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest. Thus, the Public Prosecutor is supposed to give independent thought about the detention or withdrawal of the accused person from the prosecution. 11. In the present case, it is unambiguous that the application is made under Section 169 of Cr. P.C. ....
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.... the judgment is pronounced and since the accused is brought before the Court, the enquiry begins and therefore, stage of remand is a stage of enquiry when this application for withdrawal from the prosecution can be made by the prosecutor. 15. This argument is not convincing. The provisions under Section 321 cannot be used by Public Prosecutor during ongoing investigation. Under Section 169 discretion is given to the officer in-charge of the police because investigating machinery is collecting the evidence and if at all the evidence is not sufficient and the person is made accused initially either on suspicion or on false allegation, the Investigating officer has power to move such application before the Court during the period of investigation and thereafter. Under Section 321 when the investigation is not complete but during the enquiry, if prosecution forms the opinion that there is no evidence to proceed against the accused then it will be premature on the part of the prosecutor to move such application. The investigating agency may come across some evidence at later stage and may file the chargesheet thereafter. The arguments of Mr. Ponda further cannot be accepted als....