Safeguards against extradition of a fugitive criminal in India as per Extradition Act.

What do you mean by Extradition?

The Hon’ble Supreme Court of India has stated “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and justifiable in the courts of the other state”. It is a subject of International law where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction over the new law enforcement as a result of any mutual agreement or treaty signed between them.

It is a cooperative law enforcement process between the two jurisdictions and is largely dependent on the arrangements and understanding made between them.

An extradition request for an accused can be initiated in case of under-investigation under trial and convicted criminals. Besides the legal aspects of the process, extradition also involves physical transfer of the custody of the person being extradited of the legal authority of requesting jurisdiction.

Through the process of the extradition, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (requesting state). If the fugitive is found within the territory of the requesting state arrest the fugitive and subject him /her to its extradition process. The process of extradition procedures to which the fugitive will be subjected to and dependent on the law and practice of the requested state.

The consensus in international law is that normally a state does not have any obligation to surrender an alleged criminal to a foreign state because one foreign state because the principle of sovereignty is that every state has legal authority over the people within its borders. Such an absence of international obligation and the desire for the right to demand such criminals from other countries have caused most of the countries to enter such agreements with the other countries.

2. What are Extradition Treaties or Agreements?

Section 2(d) of the Indian Extradition Act 1962 defines an” Extradition Treaty as a Treaty, Arrangement/ Agreement made by India with a foreign state relating to the extradition of fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature. However, most of them include the following five principles which have been endorsed by many judicial pronouncements.

1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.

2. The principle of dual criminality requires that the offenses for which the extradition has been sought to be an offense under the national laws of both the jurisdictions under the extradition.

3. The requested country must be satisfied that there is a prima facie case made out against the accused /offender.

4. The extradited person must be preceded against only the offense for which his extradition has been requested.

5. He must be accorded a fair trial taking care of the principles of natural justice

Section 31 of the Act provides the safeguards against extradition of a fugitive criminal. The said section reads as follows:

“31. Restrictions on surrender.― (1) A fugitive criminal shall not be surrendered or returned to a foreign State

(a) if the offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction of the magistrate or court before whom he may be produced or of the Central Government that the requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an offence of a political character;

(b) if prosecution for the offence in respect of which his surrender is sought is according to the law of that State barred by time;

(c) unless provision is made by that law of the foreign State or in the extradition treaty with the foreign State that the fugitive criminal shall not be determined or tried in that State for an offence other than–

(i) the extradition offence in relation to which he is to be surrendered or returned;

(ii) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or

(iii) the offence in respect of which the Central Government has given its consent;

(d) if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise;

(e) until after the expiration of fifteen days from the date of his being committed to prison by the magistrate. (2) For the purposes of sub-section (1), the offence specified in the Schedule shall not be regarded as offences of a political character.

(3) The Central Government having regard to the extradition treaty made by India with any foreign State may, by notified order, add or omit any offence from the list given in the Schedule.”

49. Section 34B which falls in Chapter-V provides for provisional arrest. The same reads as follows:

“34B. Provisional arrest. (1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.

(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.”

50. Section 35 provides that every notified order made or notification issued under the Act shall as soon as may be after it is made or issued, be laid before each House of Parliament.

51. Section 36 contains the rule making power of the Central Government to carry out the purpose of the Act. Section 36(2) without prejudice to the generality of the rule making power contained in sub-Section(1), particularises the matters in respect whereof rules may be made. Section 37 is the repeal and saving provision.

52. The Schedule to the Act referred to in Section 31(2) enlists the offences which are not to be regarded as offences of Political Character.

53. Extradition of a fugitive criminal to a Foreign State is an executive decision of the State, taken in exercise of the Sovereign Power of the State. Extradition is the surrender of a criminal fugitive by one State to another in which the criminal fugitive is liable to be punished, or has been convicted. When a requisition for surrender of a fugitive criminal is received from a Foreign State – whether or not it is a Treaty State, the rights of the fugitive criminal to be subjected to a Magisterial inquiry are preserved, wherein the Magistrate shall examine, inter-alia, whether the fugitive criminal is accused or convicted of an offence of a political character, and whether the offence is, or is not, an extradition offence. He shall conduct the inquiry in terms of Section 7 and 31 of the Act. The law of extradition is based on the broad principle that it is in the interests of all nations that crimes recognized as such by the civilized world should not go unpunished (See, Definition contained in Delhi High Court Rules, Volume III Chapter 16 : Extradition and Foreign Jurisdiction (Criminal Courts)). Extradition of A fugitive criminal may be undertaken in pursuance of a signed and ratified treaty, or even when such a treaty does not exist. The signing of an extradition treaty, or any other treaty between two or more sovereign nation States is an executive act, whereas, the act of ratification i.e., implementation of such a treaty, is a legislative function. It is the municipal law of the State which lays down the procedure to be followed, inter alia, for the purpose of conduct of the inquiry. The Act is that municipal law in India. The purpose of such an inquiry – which is not a trial, is not to decide the innocence or guilt of the fugitive criminal. The main purpose of the enquiry is to determine whether there is a prima facie case, or reasonable ground which warrants the fugitive criminal being sent to the demanding State. Merely because the Act provides for issuance of warrant for arrest of the fugitive criminal in respect of whom an Order for conduct of a Magisterial inquiry is issued under Section 6 of the Act, and the criminal fugitive is taken into custody, is no reason to consider the Act – or any provision thereof as a penal statute. The arrest of the fugitive criminal is not punitive. The whole purpose is to apprehend or prevent the further escape of the person – who is accused of certain offences and/ or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. (See Nina Pillai, SMT v. Union of India, 1997 Cr L.J. 2358]

The Extradition Magistrate is not required to go into the merits of the case but only to ascertain the questions as to :

(i) Whether the offence with which the Fugitive Criminal (FC) has been charged is an extradition offence?;

(ii) Whether the documents in support of the extradition have been sent in accordance with the extradition Treaty?; and

(iii) Whether the documents in support of the request indicate the existence of a prima facie case against the FC warranting his extradition to the Requesting State?.

 In the case of Sarabjit Rick Singh vs. Union of India (Supra), the Supreme Court has considered the scope and power of Extradition Magistrate. In para 35 of the report, it was held as under :

’35. In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word “evidence” has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.’

In the case of Kamlesh Babulal Aggarwal vs. Union of India & Anr. (Supra), it was held that while holding an inquiry under Section 7 of The Extradition Act, 1962, the Magistrate is entitled to take evidence on all aspects other than as to whether the offence is of political character or not and/or is an extradition offence or not and that the other evidence would be as to the existence of a prima facie case.

20. While dealing with ‘what prima facie means’ and the scope of inquiry under Section 7 of The Extradition Act, 1962, which lays down procedure before the Magistrate, it was further observed as under :-

’12. “Prima facie” has a definite connotation in law. It is defined as “at first sight” or “accepted as so until proved otherwise” or “on face of it”, or “so far as it can be judged from the first disclosure.” The prima facie case will prevail until contradicted and overcome by other evidence. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence laid it was possible to arrive at the conclusion in question.

The petitioner, as aforesaid, while referring to the Schtrak case relied upon a passage in the judgment of Lord Reid only. In the judgment of Lord Hodson it is held that committal under the Extradition Act is on the same footing as committal for trial by a Magistrate in an ordinary case.

14. The Division Bench of this Court in Charles Sobhraj case (29) (1986) DLT 410 also held that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case and that there is no further power vested in the Magistrate. It is perhaps for this reason that the Division Bench of this Court in Nina Pillai case held that the position was fairly well settled.

15. In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of materials is uncalled for. The persons who are not examined by the original investigating agency may be examined by another investigating agency to make the investigation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of framing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.

16. Section 7 (3) and (4) of the Act in fact require a prima facie case only “in support of requisition”. Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons.

17. This, according to us, is the test to be applied in conducting an inquiry under Section 7 of the Act and this is the ambit and scope of the inquiry and no more.

18. The counsel for the respondent has, besides relying upon Nina Pillai case and Darshan Kumar case also relied upon Sarabjit ‘Rick’ case 2007 (93) DRJ 712 and Maninder Pal Singh Kohli case

Criminal Lawyer in Delhi High Court & Supreme Court.

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Criminal Proceeding Can be Quashed at any stage after Invoking Power u/s 482 of Cr.P.C if  settlement arrived between the Parties even after conviction/Punishment.

 In the Matter of Soban vs State of kerla in Crl. Appeal No.1587/2006, The Hon’ble Kerla High Court held that :- ( only for Information)

The decision of the Apex Court in Nikhil Merchant (supra) where relying upon the decision in Joshi (supra), the Apex Court took note of the settlement arrived at between the parties and  quashed the criminal proceedings for the offence punishable under Sections 420, 467, 468 and 471 r/w 120B of I.P.C. and held that since the criminal proceedings had the overtone of a civil dispute which have been amicably settled between the parties, it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. In Manoj Sharma (supra) also, the Supreme Court took the view that once the disputes are settled between the parties amicably, High Court cannot refuse to exercise the jurisdiction either u/s 482 or under Article 226 of the Constitution of India to quash the criminal proceedings even if the offence involved is non-compoundable.

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6.Section 320 is the only statutory provision in Cr.P.C. for compounding an offence and classifies the offences which are simply compoundable and compoundable with permission of the Court [Ss.320(1) and 320(2)]. The law makers never thought of incorporating any specific provision in Cr.P.C. for compounding of offence other than the offences mentioned in Ss.320(1) and 320(2). However, through judicial intervention, the Apex Court found a solution in cases where accusations are non-bailable and non-compoundable holding that recourse to inherent powers u/s 482 would be permissible even in non-compoundable offences for- quashing an FIR and/or criminal proceedings and the said power is not controlled or moderated by Section 320 of Cr.P.C

 7. The contentious issue as regards the scope of power exercisable under Section 482 of Cr.P.C. when a prayer is made for quashing criminal proceedings involving non-compoundable offences on account of settlement between the parties came up for consideration before the Apex Court initially in Joshi’s case (supra). Describing the scope of inherent powers, it was held that S.320 of Cr.P.C does not limit or control exercise of powers vested in the Court u/s 482 of Cr.P.C. and the Court would have the power to quash criminal proceedings or an FIR under the exercise of powers u/s 482 even if the offence was non-compoundable u/s 320 of Cr.P.C. The Court drew distinction between compounding an offence as permitted u/s 320 of Cr.P.C and quashing of the complaint or criminal proceedings u/s 482 of Cr.P.C. as also Article 226 of the Constitution of India and held that the powers of the High Court u/s 482 of Cr.P.C to quash criminal proceedings or FIR were not circumscribed by S.20 of Cr.P.C. To the same effect is the decision of the Apex Court in Nikhil Merchant (supra) where relying upon the decision in Joshi (supra), the Apex Court took note of the settlement arrived at between the parties and  quashed the criminal proceedings for the offence punishable under Sections 420, 467, 468 and 471 r/w 120B of I.P.C. and held that since the criminal proceedings had the overtone of a civil dispute which have been amicably settled between the parties, it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. In Manoj Sharma (supra) also, the Supreme Court took the view that once the disputes are settled between the parties amicably, High Court cannot refuse to exercise the jurisdiction either u/s 482 or under Article 226 of the Constitution of India to quash the criminal proceedings even if the offence involved is non-compoundable. In Gian Singh v. State of Punjab (2010 (4) KLT 755), the two Judge Bench of the Apex Court doubted the correctness of the above three decisions and referred the question as regards the permissibility of indirectly permitting compounding of noncompoundable offences recoursing to S.482 of Cr.P.C. to a Larger Bench of the Apex Court. Finally the issue was settled by a three Judge Bench of the Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)]. The Apex Court explaining that the High Court has inherent power u/s 482 of Cr.P.C with no statutory limitation including S.320 of Cr.P.C. has held that these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute. However, it is also observed that the Court must have due regard to the nature and gravity of the crime and criminal proceedings in heinous and serious offences or offences like murder, rape and dacoity etc., should not be quashed despite victim or victim’s family have settled the dispute with offender. The jurisdiction vested in High Court u/s 482 of Cr.P.C was held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominantly civil flavour particularly offences arising from commercial, financial, mercantile, civil partnership or such like transaction, or even offences arising out of matrimony relating to dowry etc., family dispute or other such disputes where wrong is basically private or personal nature where parties mutually resolve their dispute amicably. It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit. Later, in Narinder Singh and Others v. State of Punjab and Others [(2014) 6 SCC 466] and also in State of Madhya Pradesh v. Laxmi Narayan and Others [(2019) 5 SCC 688], the Apex Court has summed up and laid down principles by which the High Court would be guided in adequate treatment to the settlement between the parties and exercise its power u/s 482 of Cr.P.C. while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings. From the law enunciated in the above decisions, it is explicit and clear that the power of the High Court u/s 482 of Cr.P.C is not inhibited by the provisions of S.320 of Cr.P.C and FIR as well as criminal proceedings can be quashed by exercising inherent powers u/s 482 of Cr.P.C if it is warranted in the given facts and circumstances of the case or ends of justice or to prevent abuse of process of any Court, even in those cases which are non-compoundable where the parties have settled the matter between themselves.

 8. The decisions in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra) do not deal with situation arising out of the prayer for quashing criminal proceedings after conviction for a non-compoundable offence. The ratio of those  decisions was in the context of settlement of dispute before conviction. The crucial question is whether analogy applied therein could be extended to cases after conviction of the accused.

 9. The Division Bench of the Punjab and Haryana High Court in Sube Singh and Others v. State of Haryana and Others [(2014) 2 Crimes 299] had considered the question on a reference made to it as to whether criminal proceedings could be quashed by the High Court in exercise of power u/s 482 of Cr.P.C. even when the accused was found guilty and convicted by the trial Court. The question was answered by holding that the power u/s 482 of Cr.P.C was wide enough to quash proceedings in relation to non-compoundable offence notwithstanding the bar u/s 320 of Cr.P.C. and such power could be exercised at any stage of the proceedings. The Full Bench of the Bombay High Court in Abasaheb Yadav Honmane and Others v. The State of Maharashtra (2008 (2) Mh.L.J 856) has also held that power to compound can be exercised at the trial stage or even at the appellate stage subject to the satisfaction of the conditions postulated by the legislature u/s 320 of Cr.P.C. However, the Full Bench of the Bombay High Court (Nagpur Branch) recently in Maya Sanjay Khandare and Another v. State of Maharashtra (APL No.709/2020 dt. 05/01/2021) has held that it is only in rarest of rare cases that High Court may, in exercise of its inherent powers u/s 482 of Cr.P.C. quash criminal proceedings relating to non-compoundable offence based on settlement between the parties after conviction. In Renjith v. State of Kerala (2019 KHC 5647), this Court took the view that even at the revisional stage, proceedings against the accused for committing a non-compoundable offence can be quashed invoking inherent power u/s 482 of Cr.P.C. In Biju Eappen (supra), this Court acquitted the accused after conviction accepting the compromise at the appellate stage. The Supreme Court in Bitan Sen-Gupta and Another v. State of West Bengal and Another (2018) 18 SCC 366] held that considering the wide amplitude of the powers u/s 482 of Cr.P.C, the same could be exercised for quashing the criminal proceedings postconviction when the convict and the victim had arrived at a settlement.

10. It is settled that the plenary power possessed by the High Court u/s 482 of Cr.P.C. are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction. Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/s 482 of Cr.P.C. is not controlled by S.320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/s 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. Subsections (5) and (6) of S.320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/s 482 of Cr.P.C. only to cases where an order of conviction was not passed. inherent power u/s 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/s 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if requirements of S.482 of Cr.P.C were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal proceedings involving non-compoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).

 11. Coming to the facts of the present case, even though offences alleged against the accused were under Sections 143, 147, 149, 326, 307 r/w 149 of I.P.C., the appellant was found guilty only u/s 326 of the I.P.C. Paragraph 22 of the impugned judgment reads that accused was only 22 years old as on the date of the incident and no previous conviction has been proved against him. It is observed that he is the only bread winner of his family. In the affidavit sworn in by the victim, it is stated that the incident was the result of some misunderstanding due to political animosity and that the entire dispute has been settled. This Court gave a direction to SHO, Vadakkekkara Police Station to enquire with the defacto complainant as to the genuineness of the affidavit and settlement and to file a report. Accordingly, the SHO has filed a report stating that the subject matter of the dispute has been amicably settled between the parties. The police has also recorded the statement of the victim which has also been produced. The offence for which the appellant was convicted does not involve offence of mental depravity or of heinous nature like rape, dacoity or murder. It does not fall in the category of offences termed to be prohibited in the pronouncements of Apex Court to be compounded exercising power u/s 482 of Cr.P.C. The dispute appears to be personal in nature and the victim is no more interested in carrying on with the criminal proceedings.

12. In Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582], the Apex Court emphasised and observed that in the matter of compromise in criminal proceedings, keeping in view of the nature of the case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied. It was observed that in disputes where the question involved is of purely personal nature, Courts should ordinarily accept the terms of compromise. The three Judge Bench of the Apex Court in Social Action Forum for Manav Adhikar and Another v. Union of India, Ministry of Law and Justice and Others [(2018) 10 SCC 443] has held that if a settlement is arrived at, the parties can approach the High Court u/s 482 of Cr.P.C and the High Court, keeping in view the law laid down in Gian Singh (supra) shall dispose of the same.

 13. Keeping in view of the nature and gravity of the offence, ratio laid down by the Apex Court and considering the facts and circumstances of the case in its entirety, I am of the view that Crl.M.A.No.1/2021 deserves to be allowed in view of the compromise arrived at between the parties for the ends of  justice. In the result, Crl.M.A.No.1/2021 is allowed. The entire proceedings initiated in terms of Crime No. 179/2003 of Vadakkekkara Police Station is quashed. The conviction and sentence of the appellant vide the impugned judgment are set aside. The Crl.Appeal stands disposed of in the aforesaid terms.

Accused released on bail without surety-sureties.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

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HIGH COURT OF JUDICATURE AT ALLAHABAD

In Chamber

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 2249 of 2020

Applicant :- Suraj Kumar Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Brajesh Kumar Singh

Hon’ble Manoj Kumar Gupta,J.

This is second bail application seeking release of applicant on bail in Criminal Case No. 1789 of 2007 (State vs. Surendra Nath Dubey and others) arising out of Case Crime No.35 of 1994 under Sections 420, 467, 468, 406, 409, 411 IPC Police Station Panaki District Kanpur Nagar. The first bail application was rejected by this Court by order dated 21.11.2019 in the absence of counsel for the applicant by recording that either the trial had concluded or the applicant had lost interest in the matter.

The instant bail application has been filed wherein it is stated that trial is still pending. It is stated that initially the first bail application was filed through Sri M.N. Singh Advocate but lateron the applicant changed his counsel and engaged Sri B.K. Singh advocate. The mother of Sri B. K. Singh advocate had expired on 20.11.2019 on account of which the clerk could not mark the case in the cause list resulting in its rejection on 21.11.2019. It is thus not in dispute that the bail application was not rejected on merit but for non prosecution.

The allegation in the first information report is that 50 bundle of Janta Dhoti was taken out from godown of UPIKA for being sold in market in collusion with the employees of UPIKA and NCCF. The allegation against the applicant in the first information report is that the transaction got materialised through the applicant who is an employee of NCCF.

The submission is that there was no independent eye witness; that the applicant was falsely implicated; that initially the applicant was granted bail in the matter and he was duly appearing before the court on every date; since he was a resident of Aurangabad (Bihar) he was facing extreme difficulty in attending the court on each date; he filed application on 1.10.2019 for exemption of his personal appearance; the said application was allowed on 1.10.2019 itself; thereafter, the case was listed on 5.1.2000 on which date, counsel for the applicant could not appear as a result of which non bailable warrant was issued. The applicant challenged non bailable warrant before this Court by filing Criminal Misc. Application No.4420 of 2019 which was disposed of by order dated 7.2.2019. In pursuance of aforesaid order of this Court, the applicant surrendered before the trial court and moved bail application, but which was rejected. Learned counsel for the applicant states that the applicant has given specific undertaking in paragraph 28 of the affidavit filed in support of earlier bail application and the said undertaking is being reiterated once again that the applicant would appear on each and every date before the trial court and will not seek any unnecessary adjournment if enlarged on bail as he is languishing in jail since 6.3.2019.

Learned AGA Sri Pankaj Srivastava has opposed the bail application but did not dispute that initially the applicant was on bail but came to be arrested in pursuance of non bailable warrant, subsequent to rejection of his bail application. He submitted that in case of grant of bail, the trial court be directed to expedite the trial.

Having regard to the submissions made but without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail subject to certain conditions.

Let the applicant Suraj Kumar Singh involved in aforesaid case crime be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice.

(i) In the facts and circumstances of the case, the trial court is directed to expedite the trial of the case and make serious endeavour to conclude the same, preferably within a period of one year.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 6.4.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.), shall also be complied.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

(Manoj Kumar Gupta, J.) Order Date :- 29.5.2020

Bail denied in black marketing of Remdesivir and Favipiravir by Bombay High Court.

In the Matter of : Pravin Sukhraj Jain Vs The State of Mahrastra in ANT. BAIL APPLICATION (ST) NO.2109 OF 2020 held that:-

This will ensure early access of Remdesivir for treatment of severe COVID patients in the country under the Restricted Emergency Use. Favipiravir Tablet has been approved for manufacture and marketing on 19.6.2020.

Both Remdesivir and Favipiravir formulations are required to be sold under the prescription of medical specialists only. Further, Remdesivir formulations are required to be supplied for use only to the hospital institutions to ensure proper use of the drug as recommended. In both the cases, informed consent of the patient or his / her representative in the prescribed form is mandatory before initiating the treatment.” 9 Upon reading these two communications along with the provisions of the Drugs (Prices Control) Order, 2013, it may be stated that these orders were issued to ensure proper supply and distribution of Remdesivir for treatment of patients with severe COVID-19 infection and Favipiravir tablets for mild to moderate COVID-19 infection. Obviously, controlling order and the directions issued by the Shivgan 12-ABAST-2109-2020.odt Drugs Controller General (I), were in spirit of Section 3 of the Essential Commodities Act, 1955. It may be stated that the Drugs Controller General (I) has made it clear that the Central Drugs Standard Control Organization has granted permission to manufacture and market drugs to M/s. CIPLA, M/s. Hetro and M/s. Mylan Laboratory for marketing drugs in the country. These directions were issued to prevent and/or curtail black marketing and over pricing of the drug Remdesivir by certain unscrupulous persons. These directions also ensure, early access of Remdesivir for treatment of severe Covid patients in the country under the restricted emergency use only on prescription by Doctors/Hospital.

 Material on record prima-facie suggests, co- accused, who were found in possession of the drugs, Remdesivir, Actemra, was in contravention or in breach of Drugs (Prices Control) Order, 2013 and further suggest, they were black-marketing and over-pricing these drugs. Shivgan 12-ABAST-2109-2020.odt 11 So far as the present applicant is concerned, it may be stated that soon after his name was disclosed by the co-accused, he was not traceable and his whereabouts were not known. In fact, his establishment/shop was found closed. However, as stated, shop was sealed temporarily for the purpose stated in the notice pasted on his shop. Learned counsel for applicant would urge that applicant has no business to deal in prohibited Remdesivir drug and he had not sold drug to the co-accused, Mr. Das. It appears from his submission that Mr. Das in past was his partner but for years he had no business dealings with him. But learned counsel would also urge that Mr. Das owes applicant a substantial amount, a debt, arising from transaction between applicant’s frm and Mr. Das. It may also be stated that since after shop of the applicant is sealed, he is not available for interrogation. Though he was directed to report to the Investigating Ofcer, he did not report and co-operate in the investigation. He ventured to Shivgan 12-ABAST-2109-2020.odt send one Mr. Bhanushali to the police station. Therefore, it is a clear case of non-co-operation in the investigation. Though, it is contended that applicant has no connection with Mr. Das, however, Call Detail Records produced by the prosecution for perusal indeed makes it clear that applicant was in constant touch with co-accused Mr. Das. Prima-facie, material on record, suggests applicant’s complicity in subject crime.

“26. Control of sales prices of formulations.- No person shall sell any formulation to any consumer at a price exceeding the price specifed in the current price list or price indicated on the label of the container or pack thereof, whichever is less.”

 Besides, learned Senior Counsel has also brought to my notice and placed on record communication dated 6th July, 2020 issued by the Drug Controller General (I). This letter reads as under:

Ministry of Health & Family Welfare Directorate General of Health Services Central Drugs Standard Control Organization (Enforcement Division) FDA Bhawan, Kotla Road New Delhi-110002 E-mail: dci@nic.in Dated:- 6/7/2020.

To, . All States/UT Drugs Controller, Subject:- Immediate enforcement needed to stop the sale of COVID-19 drug Remdesivir above MRP-reg.

Sir, Considering the emergency and unmet medical need for Covid-19 disease, CDSCO has approved Restricted Emergency Use of Remdesivir injectable formulation for treatment of patients with severe Covid-19 infection subject to various conditions and restrictions.

 Initially, Remdesivir formulation of the innovator was approved on 01.06.2020 for import and marketing the drug in the country. However, the importer is yet to import the drug after taking import licence from CDSCO. Subsequently, CDSCO has granted permission to manufacture and market the drug to M/s. Cipla, M/s. Hetro and M/s. Mylan Laboratory for same indication, conditions and restrictions.

There is no bar to the Police Ofcer, however, to investigate and prosecute the person where he has committed an ofence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable ofence under any other law. III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Ofcer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable ofences under Chapter IV of the Act and he cannot investigate such ofences under the provisions of the CrPC.

IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable ofences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable ofence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.

V. It would appear that on the understanding that the Police Ofcer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable ofences falling under Chapter IV of the Act. We fnd substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police ofcers would have made arrests in regard to ofences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Ofcers do not have power to arrest in respect of cognizable ofences under Chapter IV of the Act, will operate with efect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Ofcers.

Thus, taking into consideration facts of the case and conduct of the applicant, in my view, prosecution cannot be denied applicant’s custody for investigation. In my view, no case is made out for granting pre-arrest bail. It may also be stated that ofences under the Essential Commodities Act, 1955 are cognizable. Besides, Section 10(c) presumes ‘culpable state of mind’. Thus, in view of the material on record, application is rejected. Shivgan 12-ABAST-2109-2020.odt 13 At this stage, learned counsel for applicant, on instructions makes a statement that, applicant shall surrender to the police on 1st October, 2020 at 11.00 a.m. Statement is accepted.

No Arrests where punishment is upto seven years as per judgment of Arnesh Kumar, HPCs Should Release All Prisoners Who Were Released Earlier,Supreme Court given Directions To De-Congest Prisons.

In the matter of : Suo Motu Writ Petition (C)  No.01/2021, The Hon”ble Supreme Court held that :-

As a first measure, this Court, being the sentinel on the quivive of the fundamental rights, needs to strictly control andlimit the authorities from arresting accused in contraventionof guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic. It may be relevant to quote the same:

11.   Our   endeavour   in   this   judgment   is   to ensure   that   police   officers   do   not   arrest the accused unnecessarily and Magistrate do not   authorise   detention   casually   and mechanically.   In   order   to   ensure   what   we 11 have observed above, we give the following directions: 11.1. All the State Governments to instruct its   police   officers   not   to   automatically arrest when a case under Section 498­A IPC is   registered   but   to   satisfy   themselves about   the   necessity   for   arrest   under   the parameters   laid   down   above   flowing   from Section 41 CrPC.

 11.2. All police officers be provided with a check list containing specified sub­clauses under Section 41(1)(b)(ii)

 11.3. The police officer shall forward the check   list   duly   filled   and   furnish   the reasons and materials which necessitated the arrest,   while   forwarding/producing   the accused   before   the   Magistrate   for   further detention;

11.4.   The   Magistrate   while   authorising detention   of   the   accused   shall   peruse   the report   furnished   by   the   police   officer   in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

 11.5. The decision not to arrest an accused, be   forwarded   to   the   Magistrate   within   two weeks   from   the   date   of   the   institution   of the case with a copy to the Magistrate which may   be   extended   by   the   Superintendent   of Police of the district for the reasons to be recorded in writing;

11.6.   Notice   of   appearance   in   terms   of Section 41­A CrPC be served on the accused within   two   weeks   from   the   date   of institution   of   the   case,   which   may   be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid   shall   apart   from   rendering   the police   officers   concerned   liable   for departmental   action,   they   shall   also   be liable to be punished for contempt of court to   be   instituted   before   the   High   Court having territorial jurisdiction.

11.8.   Authorising   detention   without recording   reasons   as   aforesaid   by   the Judicial   Magistrate   concerned   shall   be liable   for   departmental   action   by   the appropriate High Court.

12.   We   hasten   to   add   that   the   directions aforesaid shall not only apply to the cases under Section 498­A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with   imprisonment   for   a   term   which   may   be less than seven years or which may extend to seven years, whether with or without fine.

10. Second,   the   rapid   proliferation   of   the   virus   amongst   the inmates of congested prisons is a matter of serious concern. The   High­ Powered   Committees   constituted   by   the   State Governments/Union   Territories   shall   consider   release   of prisoners by adopting the guidelines (such as inter alia, SOP laid   down   by   NALSA)   followed   by   them   last   year,   at   the earliest. Such of those States which have not constituted High 13 Powered   Committees   last   year   are   directed   to   do   so immediately.     Commissioner   of   Police   Delhi   shall   also   be   a member of the High­Powered Committee, Delhi. 

  11. Third, due to the immediate concern of the raging pandemic, this court has to address the issue of de­congestion. We find merit in the submission of Mr. Colin Gonsalves, learned Senior Counsel appearing on behalf of the applicant, that the HighPowered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier   pursuant   to   our   order   23.03.2020,   by   imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.

12. Fourth, further we direct that, those inmates who were granted parole,   pursuant   to   our   earlier   orders,   should   be   again granted a parole for a period of 90 days in order to tide over the pandemic.

13. Fifth, the fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn   to   example   of   Delhi,   wherein   the   prison   occupancy   is updated   in   websites.   Such   measures   are   required   to   be considered   by   other   States   and   should   be   adopted   as   good practice.   Moreover,   all   the   decisions   of   High ­Powered Committees   need   to   be   published   on   respective   State   Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.

14. Overcrowding   of   prisons   is   a   phenomenon,   plaguing   several countries including India. Some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. In such extraordinary cases, the authorities are directed to be considerate to the concerns   of   the   inmates.   The   authorities   are   directed   to ensure   that   proper   medical   facilities   are   provided   to   all prisoners   who   are   imprisoned.  The   spread   of   Covid­19   virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment   should   be   made   available   to   the   inmates   and   the staff. It is necessary to maintain levels of daily hygiene and sanitation required to be improved. Suitable precautions shall be   taken   to   prevent   the   transmission   of   the   deadly   virus amongst   the   inmates   of   prisons.   Appropriate   steps   shall   be taken   for   transportation   of   the   released   inmates   of   the prisons, if necessary, in view of the curfews and lockdown in some States.   “

Private vehicles not ‘public place’ under Section 42 of NDPS Act: Supreme Court.

The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.

In the circumstances, the Hon”ble Supreme courts held that in the matter of  Boota Singh vs State of Haryana that the Punjab and Haryana High Court fell in error in rejecting the submissions advanced on behalf of the appellants. therefore, allow the appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence.


Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 1985

1[42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

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In Karnail Singh 1 , the Constitution Bench of this Court concluded:-

 “35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

 (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

 (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency

. (d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” (Emphasis added)

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Boota Singh Vs State of Haryana , Judgement by Supreme Court of India.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.421 OF 2021

BOOTA SINGH & OTHERS …Appellants

Versus

STATE OF HARYANA …Respondent

High Courts Shall Not Pass Order Of ‘Not To Arrest’ Or ‘No Coercive Steps’ While Dismissing/Disposing Petition U/s 482 CrPC of quashing of fir.

The Hon’ble Supreme Court in the matter of M/s Neeharika Infrastructure Pvt. Ltd vs State of Maharashtra and others  held that :

Whether the High Court would be justified in granting stay of further investigation pending the proceedings under Section 482 Cr.P.C. before it and in what circumstances the High Court would be justified is a further core question to be considered. Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 41 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction, referred to hereinabove.

12. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in 42 exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice

Decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

I .Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences; 38

II  Courts would not thwart any investigation into the cognizable offences;

 iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

 vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, 39 recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

 ix) The functions of the judiciary and the police are complementary, not overlapping;

 x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; 40

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

 xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

Conclusions:

23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: 58

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

 iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty)

. v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate 59 in two specific spheres of activities and one ought not to tread over the other sphere

; ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

 xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate 60 which may be considered by the learned Magistrate in accordance with the known procedure;

 xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

 xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

 xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

 xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the 61 Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an 62 interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order

. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

Having regard to the fact that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and other decisions, referred to hereinabove, some High Courts have continued to pass such interim orders, we direct the Registry to forward a copy of this judgment to all the High Courts to be placed before Hon’ble the Chief Justice to circulate to all the Judges of the High Courts.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 330 OF 2021

M/s Neeharika Infrastructure Pvt. Ltd. …Appellant

Versus

 State of Maharashtra and others …Respondents

Notice under sec. 67 of ndps act by investigation officer for statement.

Section 67 in The Narcotic Drugs and Psychotropic Substances Act, 1985

67. Power to call for information, etc.—Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,—

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

Under the caption “Evidentiary value of statement under section 67 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (“NDPS Act”)”, the Court noted the decisions of Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4 SCC 668, as also certain other judgments, most notably Abdul Rashid v. State of Bihar (2001) 9 SCC 578 and Noor Aga v. State of Punjab (2008) 16 SCC 417, and thereafter came to the conclusion that the NDPS Act, being a penal statute, is in contradistinction to the Customs Act, 1962 and the Central Excise Act, 1944, whose dominant object is
to protect the revenue of the State, and that therefore, judgments rendered in the context of those Acts may not be apposite when considering the NDPS Act – see paragraph 33. After then considering a number of other judgments, the referral order states that a re-look into the ratio of Raj Kumar Karwal (supra) and Kanhaiyalal (supra) would be necessary, and has referred the matter to a larger Bench thus:

“41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not.

42. In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code.


FUNDAMENTAL RIGHTS AND THE NDPS ACT

14. The first most important constitutional protection provided in the fundamental rights chapter so far as these cases are concerned is provided by Article 20(3), which is the well-known right against self- incrimination. Article 20(3) reads as follows:

“(3) No person accused of any offence shall be compelled to be a witness against himself.”

15. In an early judgment of this Court, M.P. Sharma and Ors. v. Satish Chandra 1954 SCR 1077, an eight-Judge Bench of this Court set out Article 20(3), and then went into the historical origin of this Article in English law. In an important passage, the Court held:

“In view of the above background, there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range. Nor would it be legitimate to confine it to the barely literal meaning of the words used, since it is a recognised doctrine that when appropriate a constitutional provision has to be liberally construed, so as to advance the intendment thereof and
to prevent its circumvention. Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components. (1) It is a right pertaining to a person “accused of an offence”; (2) It is a protection against “compulsion to be a witness”; and (3) It is a protection against such compulsion resulting in his giving evidence “against himself”.” (at page 1086) xxx xxx xxx Broadly stated the guarantee in Article 20(3) is against “testimonial compulsion”. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is “to be a witness”. A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See Section 119 of the Evidence Act) or the like.

“To be a witness” is nothing more than “to furnish evidence” and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word “witness”, which must be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act, which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is “to be a witness” and not to “appear as a witness”: It follows that the protection
 afforded to an accused in so far as it is related, to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. Considered in this light, the guarantee under Article 20(3) would be available in the present cases to these petitioners against whom a first information report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.

An eleven-Judge Bench was then constituted in State of Bombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10, as certain doubts were raised on some of the propositions contained in the eight-Judge Bench decision of M.P. Sharma (supra). In this case, there were three appeals before the Court, one of which involved proof of handwritten evidence, another of which involved comparison of handwriting under section 73 of the Evidence Act, and the third of which involved section 27 of the Evidence Act. After hearing arguments on both sides, the Court first concluded that M.P. Sharma (supra) was correctly decided insofar as it stated that the guarantee under Article 20(3) extended to testimony by a witness given in or out of courts, which included statements which incriminated the maker. However, the Court went on to state that “furnishing evidence” would exclude thumb-impressions or writing specimens, for the reason that the taking of impressions of parts of the body often becomes necessary for the investigation of a crime (see page 29). Incriminating information must therefore include statements based on personal knowledge. The Court then went on to consider whether section 27 of the Evidence Act would fall foul of Article 20(3), having already been upheld when a constitutional challenge under Article 14 had been repelled by the Court in State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14. The Court held that if self-incriminatory information is given under compulsion, then the provisions of section 27
of the Evidence Act would not apply so as to allow the prosecution to place reliance on the object recovered as a result of the statement made (see pages 33-34). In the result, the Court held:

“(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not “compulsion”.

(3) “To be a witness” is not equivalent to “furnishing evidence” in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression “to be a witness”.

(5) “To be a witness” means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.

(6) “To be a witness” in its ordinary grammatical sense means giving oral testimony in court. Case law has gone
 beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” (at pages 36-37


                IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO.152 OF 2013

                                              Tofan Singh vs The State Of Tamil Nadu

Non Compliance of sec.57 of Ndps Act about the arrest and seizure.

Section 57 of Ndps Act . Report of arrest and seizure.—Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

—————————————————————————————————————————————

The Supreme Court has reiterated that merely because the report contemplated under Section 57 of the Narcotic Drugs and Psychotropic Substances Act was not sent within two days of arrest of the accused, the entire proceedings will not be vitiated.

Section 57 of the NDPS Act provides that whenever a person makes any arrest or seizure, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

In this case, the counsel for the accused contended that there is a violation of Section 57 of the NDPS Act, since the report was not sent to the Higher Official within the period as prescribed, which has vitiated the entire proceeding.

Rejecting this submission, the bench comprising of Justices Ashok Bhushan and Navin Sinha referred to the judgment in Sajan Abraham vs. State of Kerala, wherein it was held held that non-compliance of Section 57 would not vitiate the prosecution case. It said:

In so far as submissions on the basis of Section 57 of NDPS Act is concerned, it has been held that the said provision is not to be interpreted to mean that in event the report is not sent within two days, the entire proceeding shall be vitiated. The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding.

In Sajan Abraham, it was held that Section 57 is not mandatory in nature and when substantial compliance has been made it would not vitiate the prosecution case.


IN THE SUPREME COURT OF INDIA

                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO.149 OF 2020

                              (Arising out of SLP(Criminal) No.9226 of 2016)

                      GURMAIL CHAND                                           APPELLANT(S)

                                                      VERSUS

                      STATE OF PUNJAB                                         RESPONDENT(S)

                                               O R D E R

Leave granted.

Heard learned counsel for the parties. This appeal has been filed against the judgment of the High Court dated 13.01.2016 in CRA No.S-764-SB of 2003 by which judgment the appeal of the appellant challenging his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the ‘NDPS Act’) has been dismissed.

The prosecution case as noticed by the High Court is that on 16.10.1998, S.I. Gurcharan Singh accompanied by ASI Teja Singh, H.C. Major Singh and other police officials was present on the bridge canal minor in the Signature Not Verifiedarea of village Khanjarwal when Hari Krishan s/o Bhajan Digitally signed by ARJUN BISHT Date: 2020.01.27 17:15:23 IST Reason: Lal r/o village Raikot arrived there. It was about 8.30 a.m., accused-appellant Gurmail Chand was seen coming
from the side of village Khanjarwal on scooter bearing registration No.PB-04F-2642. As he tried to slip away, he was stopped on the basis of suspicion. On being enquired about the name and parentage etc., a polythene bag was found lying on the foot mat of the scooter. As the police party got suspected that there is some contraband in the polythene bag, the accused-appellant was given the option of getting the search done before the Magistrate or the Gazetted Officer. The accused-appellant desired the search to be conducted in the presence of some senior police officer. The statement of the accused-appellant was recorded as Ex.PA. Harjit Singh Pannu, DSP, Dakha was called at the spot through wireless message. The DSP arrived at the spot at 9.15 a.m. and he disclosed his identity to the accused-appellant and also apprised him of his rights of search before some other Gazetted Officer or Magistrate. The accused-appellant reposed confidence in the DSP and consent statement of the accused-appellant in this regard was recorded as Ex.PB. On direction of the DSP, Harjit Singh Pannu, SI Gurcharan Singh conducted the search of the polythene bag, from which 10 Kgs. opium was recovered. Two samples of 10 gms. each were separated. Then the samples of the bulk case property were sealed with the seal bearing impression ‘GS’ pertaining to SI Gurcharan Singh and ‘HSP’ pertaining to DSP Harjit Singh Pannu. The specimen seal impression was also prepared. The case property was also
taken into possession vide recovery memo (Ex.PC). These samples were got tested from the Forensic Sciences Laboratory, Punjab, Chandigarh. Vide report (Ex.PJ), the Forensic Sciences Laboratory, Punjab, Chandigarh, declared that the contents of the samples were of opium.

The appellant was charge-sheeted and faced the trial. In support of his case the prosecution examined ASI Teja Singh as PW1, DSP Harjit Singh Pannu as PW2, SI Gurcharan Singh as PW3, Constable Gurpreet Singh as PW4, H.C. Pargat Singh as PW5, Rajesh Kumar as PW6, Amarjit Singh, Registration Clerk in the office of D.T.O., Faridkot as PW7 and R.K. Garg, JMFC, Mansa as PW8. Hari Krishan, who was witness of seizure, had appeared on behalf of the accused as DW1. Appellant’s statement under Section 313 Cr.P.C. was recorded.

The Trial Court after considering the evidence on record convicted and sentenced the accused vide judgment dated 20.02.2003 under Section 18 of the NDPS Act and he was to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/-, in default thereof to further undergo rigorous imprisonment for two years.

Learned counsel for the appellant questioning the judgment of High Court contends that Hari Krishan, who was claimed to be independent witness of the seizure, had appeared as DW1 and had stated that in his presence no seizure was made and he had signed on the blank papers. He further submits that seizure having not been proved in
accordance with law, Courts below have committed error in convicting the appellant. He further submits that there is violation of Section 57 of the NDPS Act, since the report was not sent to the Higher Official within the period as prescribed, which has vitiated the entire proceeding. He further submitted that case property was not produced in the Court which itself was sufficient to disbelieve the entire prosecution story. He submitted that what was produced in the Court, the seal was illegible.

We have considered the submissions of learned counsel for the parties and perused the record.

The mere fact that the witness of seizure Hari Krishan has appeared as DW1 does not led to the conclusion that the entire prosecution story has to be disbelieved. There are signatures of Hari Krishan in the seizure memo along with other police officers. The Trial Court as well as the High Court has rightly accepted the seizure, which was held to be in accordance with law. DW1 has not denied his signatures on the seizure memo rather his excuse was that it was taken on the blank paper which was rightly disbelieved by the Courts below. In so far as production of the case property, the Judicial Magistrate himself has appeared in the witness box and deposed that it was produced in the Court. The mere fact that one seal was illegible does not vitiate the proceeding. In so far as submissions on the basis of Section 57 of NDPS Act is
 concerned, it has been held that the said provision is not to be interpreted to mean that in event the report is not sent within two days, the entire proceeding shall be vitiated. The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three-Judge Bench of this Court in Sajan Abraham vs. State of Kerala1 has held that non-compliance of Section 57 would not vitiate the prosecution case. In paragraph 12 following was laid down:

“The last submission for the appellant is, there is non-compliance with Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court, that PW5 has sent copies of FIR and other documents to his superior officer, which is not in dispute. Ext.P-9 shows that the copies of the FIR along with other records regarding the arrest of the appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. In the present case, we find

1. (2001) 6 SCC 692
 PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act.” We do not find any merit in the submissions of the appellant. The appeal is dismissed.

(ASHOK BHUSHAN) ……………….J.

(NAVIN SINHA) New Delhi;