Rajeev Gupta And Others vs Central Norcotics Bureau

Vinay Saraf, J

1.Petitioners are facing criminal trial under Sections 43, 8/22 and 29 of NDPS Act registered as SC BDPS/3302592/2016 pending in the Court of Special Judge, NDPS, Gwalior, wherein, the application moved on behalf of the petitioners under Section 91 of Cr.P.C. was dismissed by the impugned order dated 23.04.2024.

The petitioners raised specific defence during the cross examination of the prosecution witness that investigating agency had issued notices under Section 67 of the NDPS Act to various wholesalers but action was taken against only 3-4 wholesalers, those did not succumb to demand. An application is moved on behalf of the petitioners under Section 91 of Cr.P.C., wherein they demanded the outward register for the period of 2015-2017 from the prosecuting agency for the purpose of proving the fact that the notices were issued to several other wholesalers. However, the prosecuting agency replied that they are not in a practice to enter the notices in the outward register. Thereafter, the petitioners moved an application before the Special Court for issuance of directions to the prosecuting agency to submit the affidavit in support of the reply but the same was not accepted by the trial Court.

3 . Counsel appearing on behalf of the petitioners submits that the petitioners have taken the specific defence even during the cross examination of the prosecution witnesses and, therefore, this issue is having importance in the present trial. Until and unless an affidavit is filed in support of the reply, the reply cannot be accepted and the Special Judge has committed an error in not issuing any direction to the prosecuting agency to file the affidavit of the investigating officer in support of the reply. He prays for issuance of necessary direction to the prosecuting agency to submit the relevant documents or file the affidavit in support of the reply.

Learned counsel appearing on behalf of the Central Narcotics Bureau submits that when the reply is already been filed stating that the agency is not in a practice to enter the notices issued under Section 67 of the NDPS Act in the outward register then, no order can be passed under Section 91 of the Cr.P.C. to proceed the same. He further submits that the reply has been filed by the Special Public Prosecutor and therefore there is no need to file the affidavit of I.O.

Considering the controversy involved in the present matter and in view of the fact that when the investigating agency has submitted that they are not in a practice to maintain any outward register in respect of issuance of the notices under Section 67 of the NDPS Act or entered the notice in the regular register maintained by them, no illegality has been committed by the Special Judge in declining to issue any direction to the respondent-investigating agency for producing the documents as the same is not in existence. However, the reply was not submitted under seal and signature of the investigating officer and, therefore, the request for direction to the respondent to file the affidavit of the investigating officer in support of the reply ought to have been accepted.

The present petition is disposed of with a short direction to the respondent/investigating agency to file the affidavit of the investigating officer in support of the reply under Section 91 of Cr.P.C. confirming the averments made in the reply. Let the affidavit be filed within a period of seven days from today.

With the aforesaid, present petition is disposed of.