[S.59 NDPS Act] Special Court Can Order FIR Against Investigating Officer For Failure To File Chargesheet Within 180 Days: Bombay High Court

The Bombay High Court recently upheld an order directing criminal prosecution of the investigating officer (IO) under Section 59 of the NDPS Act for his prima facie failure to file the chargesheet within the stipulated period.

Under Section 59 an officer who fails to perform his duty prescribed under the act or who connives with an accused can be punished with imprisonment for a term extendable up to one year and/or with fine.

“It needs to be stated that as and when it is found by any Court at any stage of proceeding that the actionable wrong within the meaning of Section 59 of the NDPS. Act has been committed then in that event it has to be approached and dealt with firmly by initiating an appropriate action,” Justice GA Sanap said.

The bench rejected the officer’s explanation that he was busy with other investigations entrusted by his superiors and therefore wasn’t able to file the chargesheet in time.

The court was seized with a criminal revision application by police sub-inspector Aashish Devidas Morkhade challenging a special NDPS Court’s order directing the Superintendent of Police, Nagpur (Rural) to register a crime against him as prima facie he seemed to have committed an offence under section 59 of the NDPS Act.

The Special Judge noted Morkhade’s failure to file the charge sheet or seek an extension within the mandatory 180 days period despite completion of investigation resulting in an order of default bail in the favour of the accused. While granting default bail the court had ordered disciplinary action against Morkhade pursuant to which he was suspended.

However, while convicting the accused, the judge directed criminal prosecution against Morkhade u/s 59 pursuant.

Morkhade’s lawyer submitted that the Judge exceeded his jurisdiction by directing registration of FIR. The judge should have merely made relevant observation and left the rest upto the SP. He further argued in support of his client explanation for the delay. He said Morkhade was busy with other investigations.

The High Court noted that Morkhade was handed over the investigation of the case on August 27, 2021. In September he received the Chemical Analyzer’s report despite which he sent a requisition request again in October. “The record indicate that the approach of the applicant was careless, casual and not in consonance with the provisions of law,” he said.

Despite all the formalities being completed by December 29, 2021 Morkhade didn’t take steps for file the charge sheet and went on leave the following month. Later that month the court granted the accused default bail.

Justice Sanap said that prosecution under Section 59, would depend on the facts of each case. It noted questions put to Morkhade during his deposition in the trial to reject the allegation that rules of natural justice weren’t followed.

“It needs to be stated that the police officer attached to the Police Station is bound to be entrusted with the investigation in more than one crime. This cannot be the ground and justification for not filing the charge sheet in a case where investigation is complete in all respect,” he court added.

Justice Sanap said that NDPS was a special enactment.

“There was specific object behind the provisions in the form of Section 59. The law makers in their wisdom expected that all concerned in implementing the N.D.P.S. Act must be cautious and serious about their duty,” the court observed.

Case Title: Ashish Devidas Morkhade vs State of Maharashtra [Criminal Revision Application No. 106 of 2022]

Citation: 2023 LiveLaw (Bom) 254

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