Case Note & Summary
The Union of India, through the Directorate of Revenue Intelligence (DRI), filed a writ petition challenging an order dated 29 October 2018 passed by the Special Judge, NDPS, releasing the respondents (accused nos. 1 and 2) under Section 169 of the Code of Criminal Procedure, 1973 (CrPC). The DRI had recovered 20 kgs of white powder purportedly methaqualone, and subsequently 10 kgs of white powder and tablets of Tramadol from a godown. The accused were prosecuted under Sections 8C read with 22(C), 28, 29, and 23(C) read with 8C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). On 20 October 2018, when the accused were produced before the Special Judge, a negative Chemical Analysis (CA) report for methaqualone was received. The Special Prosecutor then moved an application under Section 169 CrPC stating that the investigating agency had decided not to prosecute the accused and sought their release. The Special Judge forthwith released the accused. The Union of India challenged this order, contending that the investigating officer never consented to the application, and that the recovery of a huge quantity of Tramadol tablets (2 to 2.44 lakhs) without a valid license constituted a separate offence under the NDPS Act. The court examined the provisions of Section 169 CrPC, which allows release of accused when evidence is deficient, but requires the investigating officer's opinion. The court found that the Special Prosecutor acted without the consent of the investigating officer, rendering the application and the subsequent order illegal. The court quashed the order of release and directed the accused to surrender, allowing the investigation to proceed regarding the Tramadol seizure.
Headnote
A) Criminal Procedure Code - Section 169 CrPC - Release of Accused When Evidence Deficient - Consent of Investigating Officer Required - The Special Prosecutor moved an application under Section 169 CrPC for release of accused without the consent of the investigating officer. The court held that the investigating officer's consent is mandatory for such an application, and the Special Prosecutor cannot act independently. The order releasing the accused was quashed. (Paras 4-6) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8C, 22(C), 23(C), 28, 29 - Tramadol as Psychotropic Substance - Commercial Quantity - The recovery of 2 to 2.44 lakhs tablets of Tramadol, a psychotropic substance, without valid license constitutes an offence under the NDPS Act. The negative CA report for methaqualone did not negate the offence regarding Tramadol. (Paras 3-4) C) Criminal Procedure Code - Section 169 CrPC - Application by Prosecutor Without Investigating Officer's Consent - Invalid - The court held that the application under Section 169 CrPC moved by the Special Prosecutor without the consent of the investigating officer was illegal and wrong, and the order passed by the learned Judge based on such application was also illegal. (Paras 4-6)
Issue of Consideration
Whether the Special Judge was justified in releasing the accused under Section 169 of CrPC based on an application moved by the Special Prosecutor without the consent of the investigating officer.
Final Decision
The court allowed the writ petition, quashed the order dated 29 October 2018 releasing the accused under Section 169 CrPC, and directed the accused to surrender. The investigation regarding the Tramadol seizure was allowed to proceed.
Law Points
- Section 169 CrPC requires consent of investigating officer for release of accused
- Special Prosecutor cannot act independently
- NDPS Act provisions for commercial quantity
- Tramadol as psychotropic substance under NDPS Act
