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Allahabad High Court says it doesn’t have the power to interfere with probe under Article 226

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The Allahabad High Court has said that the High Court in the exercise of power under Article 226 of the Constitution of India, has no power to interfere with the investigation, the relief prayed for in the petition for protection is not liable to be granted and that too on mere apprehension.

The Division Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma passed this order while hearing a Criminal Misc Writ Petition filed by Rahul Pandey And 2 Others.

The petition seeks quashing of the FIR dated November 4, 2021 giving rise to Case under Sections 8/20/25/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 P.S Shikohabad, District Firozabad, in respect of the petitioners only.

The second prayer is for quashing the notice/summon dated January 1, 2022 issued to the petitioners under Sections 67 of NDPS Act. This notice is in connection with Case, which is the subject matter of the first prayer.

The consequential and the third relief is that no coercive decision shall be taken in pursuance of the notice/summon dated January 1, 2022.

The Court observed that the police on receipt of information apprehended a truck and upon its search recovered 4.41 quintals ganja from a concealed space in the driver’s cabin. Two persons in the truck were arrested and the recovery memo was prepared. The date of the aforementioned recovery is November 4, 2021 and thereafter, the FIR was registered.

The Court noted that subsequently, notices under Section 67 of the NDPS Act have been issued to the petitioners on January 1, 2022.

The Court further observed that subsequent to the receipt of the notice/summon, the petitioners have sent letters expressing their inability to appear in response to the notice/ summon, along with a prayer that the statements be recorded in District Hathras. The notice required the petitioners to appear in the Narcotics Control Bureau Office at Lucknow on January 5, 2022 at 3 pm.

The contention of R.K Ojha, Senior Advocate, for the petitioners is that prior to the issuance of notice, some personnel claiming to be of the Narcotics Control Bureau had come to the residence of the petitioners and had tried to apprehend them. This was opposed by the petitioners and their family members. As a consequence, the personnel of the Narcotics Control Bureau were aggrieved and, therefore, the notice has been issued to the petitioners.

It is also submitted that the petitioners apprehend that once they appear in consequence of the notice issued to them, the Investigating Officer after recording their statements under Section 161 CrPC in all likelihood, will arrest them. Of the three petitioners, one is a practising lawyer and the other two are the father and the brother of the practising lawyer. Since they have no concern with the case, they are entitled to the protection claimed in the writ petition.

The Court said that insofar as the first relief claimed in the writ petition is concerned, the petitioners are not named in the FIR. They therefore, cannot be aggrieved by it, in any manner. For this reason, they cannot challenge the same.

The Court further said that, in so far as the challenge to the summon/notice dated January 1, 2022 is concerned, in our considered opinion challenge to a notice is not tenable even if the person, who, is required to respond to it is a practising lawyer or his relative. The investigating agency and the investigating officer have unfettered power of investigation.

It is also not open for the person, who is to be interrogated or questioned to decide the venue of such interrogation. Moreover, if as claimed, the petitioners have no nexus with Case. The Court fails to understand as to what prevents them from appearing before the officer concerned in pursuance of the notice issued to them.

“We are also of the considered opinion that the writ petition has been filed on mere apprehension. However, since the High Court in exercise of power under Article 226 of the Constitution of India, has no power to interfere with the investigation, the relief prayed for in the writ petition for protection is not liable to be granted and that too on mere apprehension,” the Court said while dismissing the petition.

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