The Intelligence Officer vs Mr Karl D Cunha & Anr.

Heard the learned counsel appearing for the respective parties.

This revision petition is filed challenging the order of discharge of accused Nos.1 and 2 for the offences punishable under Section 8(c) read with Sections 20(b), 22, 25, 27, 28, 29 and 32B(d) of NDPS Act dated 16.12.2025 passed in Spl. C.No.34/2015 and also bail bond and surety bond stands cancelled.

The Court while passing an order taken note that the complaint is filed invoking Section 200 of Cr.P.C. and also taken note of provisions of Sections 244 and 245 of Cr.P.C. and comes to the conclusion that the Trial Court cannot proceed without complying the provisions under Section 244 of Cr.P.C. and discharged the accused persons. The said order is challenged before this Court contending that Trial Court has committed an error in discharging the accused persons.

The counsel appearing for the respondents also contend that there is no error on the part of the Trial Court in discharging the accused. However, the counsel also relies upon the judgment reported in 2025 SCC ONLINE SC 1221 in the case of KUSHAL KUMAR AGARWAL vs DIRECTORATE OF ENFORCEMENT and brought to notice of this Court paragraph 5 wherein the Apex Court held with regard to a consistent view that a complaint filed by the Enforcement Directorate under Section 44(1)(b) of the PMLA will be governed by Sections 200 to 204 of CrPC. This view has been taken by this Court in the case of Yash Tuteja v. Union of India reported in 2024 SCC Online SC 533 and Tarsem Lal v. Enforcement Directorate reported in (2024) 7 SCC 61. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1^st July, 2024, Section 223 of the BNSS will apply to the present complaint. The counsel also submits that Section 36A(1)(d) of NDPS is pari materia with Section 44(1)(b) of PMLA.

Having taken note of the submissions of the respective counsels and also on perusal of the material on record, no doubt, in the case on hand private complaint is filed invoking Section 200 of Cr.P.C. in respect of the offences under the NDPS Act. When the offences are triable by the Special Court that too in respect of warrant cases, procedure has to be followed. But Trial Court has not proceeded to record the evidence before charge, directly proceeded to discharge the accused persons and the same is not correct. The Trial Court ought to have been recorded the evidence before the charge and the same is a curable defect and question of discharge does not arise.

This Court would like to rely upon the decision of this Court passed in Crl.R.P.No.1562/2025 dated 30.06.2026, wherein the Trial Court committed an error in proceeding to frame the charge based on the sworn statement and ought to have recorded the evidence of the witnesses before proceeding to frame the charge and sworn statement of the complainant before issue of process is not a evidence within meaning of Sections 244, 245 and 246 of Cr.P.C. and it is trite law that if there is any irregularities, the same can be cured.

Under such circumstances, the order requires to be set aside and matter has to be remanded to the Trial Court to consider the same afresh in complying the provisions and it is a curable defect and the same has to be cured by recording the evidence before charge before proceeding against the accused persons.

In view of the discussions made above, I pass the following: