High Court of KeralaSingle Judge2020-01-06Dismissed

Visakhmon v. The Director General of Police, Kerala; The Excise Commissioner, Kerala; P.A. Sahadulla

Case / Petition Number:W.P.(C) No.12551/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-01-06
Court Decision / Holding: The writ petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Visakhmon

Respondents

Director General of Police, Police Headquarters, Vazhutakakd P.O., Thiruvananthapuram-695014
The Excise Commissioner, Kerala Excise Headquarters, NANDAVANAM, Thiruvananthapuram-695033
P.A. Sahadulla, Former Excise Inspector, Excise Range Office, Karunagappally, Kollam-690544

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shabu Sreedharan
• Sri. M. Yohannan
• Smt. Reshma Abdul Rasheed

Case Synopsis & Summary

Visakhmon, the petitioner in W.P.(C) No.12551/2019, challenges the investigation in Crime No.01/2018 of the Karunagappally Excise Range, alleging false implication and seeking a transfer of the investigation to a police agency and reinvestigation by a superior officer. The petitioner asserts innocence and maintains that a fair and thorough investigation is a fundamental right under Article 21, warranting scrutiny and possible reassessment of the investigative process. The petition prays for a mandamus to transfer the ongoing inquiry from the Excise Department to the police, and to appoint a superior officer (not below SP rank) to conduct reinvestigation. The facts show that ganja was found in the petitioner’s scooter, with further drugs recovered at the residence of the second accused, leading to registration of CR No.01/2018. The Respondents contest the petition, arguing that there are sufficient materials against the petitioner and that the accused cannot dictate the investigating agency or the manner of investigation; a prior departmental enquiry reportedly found no substance in allegations of false implication. The court relies on established precedents that the accused has no control over the choice of investigating agency or the investigative process, while acknowledging Article 21’s protection of fair investigation but limiting judicial interference. The petition is ultimately dismissed, with the court underscoring the exclusive domain of the investigating officers and the limited scope of judicial intervention.

Provisions of Law Cited

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)BConstitution of India, Article 21

Legal Doctrines & Maxims

Accused has no right to dictate investigation agency
Investigation is the exclusive domain of the investigating officer
Free and fair investigation is a fundamental right under Article 21
Courts have limited power to interfere with investigation

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and false implication, pressing for transfer of investigation to the police and for reinvestigation by a superior authority. He asserts his fundamental right to a fair and thorough investigation under Article 21 and seeks mandamus to transfer the case and appoint an SP-rank officer for reinvestigation, arguing that a just and proper investigation is essential to the ends of justice.

Contentions of Respondents

The Public Prosecutor argues that there are enough materials to establish the petitioner’s involvement. He notes that the Excise Department conducted an internal inquiry finding no substance in the allegation of false implication. He maintains that an accused cannot dictate the investigating agency or the manner of investigation and that courts have a limited role in supervising investigations, especially where there is no demonstrated malfeasance or failure of due process.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Narmada Bai v. State of Gujarat	AIR 2011 SC 1804	Positive	Court relies on the proposition that accused persons do not have a say in the appointment of the investigation agency.
Sanjiv Rajendra Bhatt v. Union of India	(2016) 1 SCC 1	Positive	Cited to support the proposition that the accused cannot dictate the investigation or its manner.
Central Bureau of Investigation v. Rajesh Gandhi	AIR 1997 SC 93	Positive	Cited to reinforce that an accused cannot demand which agency investigates.
Romila Thapar v. Union of India	AIR 2018 SC 4683	Positive	Cited to illustrate that the accused cannot press for investigation in a particular manner.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **WP(C).No.12551 OF 2019(T)** ## **PETITIONER:** **VISAKHMON AGED 25 YEARS S/O.SUJITHKUMAR, VISAKHAM, SAKTHIKULANGARA P.O., KOLLAM- 691581.** **BY ADVS. SRI.SHABU SREEDHARAN SRI.M.YOHANNAN SMT.RESHMA ABDUL RASHEED** ## **RESPONDENTS:** |**1**|**THE DIRECTOR GENERAL OF POLICE,**| |---|---| ||**POLICE HEADQUARTERS, VAZHUTHAKAKD P.O.,**| ||**THIRUVANANTHAPURAM- 695014.**| |**2**|**THE EXCISE COMMISSIONER,**| ||**KERALA EXCISE HEADQUARTERS, NANDAVANAM,**| ||**THIRUVANANTHAPURAM- 695033.**| |**3**|**P.A.SAHADULLA,**| ||**FORMER EXCISE INSPECTOR, EXCISE RANGE OFFICE,**| ||**KARUNAGAPPALLY, KOLLAM- 690544.**| ## **SRI CK PRASAD-PP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2019, THE COURT ON 06-01-2020 DELIVERED THE FOLLOWING:** W.P.(C) No.12551/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ W.P.(C) No.12551 of 2019 ------------------------------------------Dated this the 6[th] day of January, 2020 ## **J U D G M E N T** This writ petition is filed by the first accused in the case which is registered as Crime No.01/2018 of the Excise Range Office, Karunagappally under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The reliefs prayed for by the petitioner in this writ petition are the following: _“1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent to transfer the investigation in crime No.1/2018 of Karunagappally Excise Range, Kollam District to the police under the 1[st] respondent._ _2. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] respondent to appoint a superior police officer not below the rank of SP to conduct re-_ W.P.(C) No.12551/2019 3 _investigation/further investigation in crime No.1/2018 of Karunagappally Excise Range, Kollam District._ _3. And to pass such other appropriate writs, orders or directions which this Hon'ble Court deems fit and proper in the facts and circumstances of the case so as to secure the ends of justice.”_ 3. Inspite of the prayer made for transferring the investigation of the case from the Abkari officer of the Excise Department to a superior police officer, the petitioner has not even produced the copy of the occurrence report prepared by the detecting officer to enable this Court to ascertain the details of the case registered against the petitioner. 4. However, as per the statement filed by the investigating officer, the case was registered against the petitioner under the following circumstances: On 05.01.2018, at about 12 noon, the Excise Inspector of Karunagappally Excise Range was conducting patrol duty and checking the vehicles. The Excise Inspector intercepted the scooter driven by the petitioner and conducted search of the vehicle. It was then found that, in the utility box of the vehicle, ganja was kept in a W.P.(C) No.12551/2019 4 plastic cover. Interrogation of the petitioner revealed that the ganja was given to him by the second accused in the case and that the remaining ganja was kept in the house of the second accused. The Excise Inspector seized the ganja which was found in the scooter and thereafter reached the house of the second accused and conducted search there. Three kilograms of ganja was seized from the kitchen of the house. A case was registered in the matter as CR.No.01/2018 of the Excise Range Office, Karunagappally. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. 6. Learned counsel for the petitioner submitted that the petitioner is totally innocent and he has been falsely implicated in the case. Learned counsel would also submit that re-investigation/further investigation of the case by another agency, preferably by a superior police officer, is absolutely necessary to bring out the real truth. Learned counsel would contend that fair and proper investigation of the case is an absolute right of an accused in a case. W.P.(C) No.12551/2019 5 7. _Per contra_ , learned Public Prosecutor has submitted that there are sufficient materials collected by the investigating officer to prove the complicity of the petitioner in the commission of the offence alleged against him. Learned Public Prosecutor has submitted that enquiry was made by the superior officers of the Excise Department on the complaints made by the petitioner regarding false implication in the case and it has been found that there is no substance in them. Learned Public Prosecutor would also submit that an accused in a case has no right to dictate who shall investigate the case and in what manner he shall investigate the case. ## 8. In **Narmada Bai v. State of Gujarat : AIR 2011 SC** **1804** , the Supreme Court has held as follows: _“It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them.”_ 9. The accused has no right with reference to the manner of investigation or mode of prosecution (See **Sanjiv Rajendra** W.P.(C) No.12551/2019 6 **Bhatt v. Union of India : (2016) 1 SCC 1)** . The accused cannot have a say in who should investigate the offences he is charged with (See **Central Bureau of Investigation v. Rajesh Gandhi : AIR 1997 SC 93** ). The accused cannot ask for changing the investigating agency or to do investigation in a particular manner (See **Romila Thapar v. Union of India : AIR 2018 SC 4683** ). 10. The accused can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, the accused can avail the appropriate remedies permissible under law such as seeking bail. During the trial of the case, the accused can opt for the remedy of discharge at the appropriate stage. He can also opt for quashing of the criminal case, if there is no legal evidence whatsoever, to indicate his complicity in the commission of the offence. 11. Merely because the person arraigned as an accused feels that he has been falsely implicated, he cannot seek W.P.(C) No.12551/2019 7 direction for the police to conduct the investigation from his defence point of view also. Investigation of a crime is the exclusive domain of the investigating officer. It is true that free and fair investigation is the fundamental right of the accused as guaranteed under Article 21 of the Constitution of India. However, the courts have only limited power to interfere with the investigation of a case. The court cannot issue directions to the investigating officer to investigate the case from a particular point of view. 12. In the light of the principles mentioned above, the prayer made by the petitioner, who is an accused in the case, for further investigation/re-investigation of the case by an agency/officer of his choice, cannot be granted. 13. Moreover, this Court also takes note of the submission made by the learned Public Prosecutor that, on enquiry made by the superior officers of the Excise Department with regard to the allegations raised by the petitioner regarding his false implication in the case, it has been found that there is no substance in his complaint in that regard. W.P.(C) No.12551/2019 8 14. In the aforesaid circumstances, none of the prayers made in the writ petition can be allowed. The writ petition is liable to be dismissed. Consequently, the writ petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.12551/2019 9 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE WOUND CERTIFICATE PREPARED AT THE DISTRICT HOSPITAL, KOLLAM IN RESPECT OF THE PETITIONER DATED 07.01.2018.** - **EXHIBIT P2 THE TRUE COPY OF THE CASUALTY OUTPATIENT TICKET OF THE PETITIONER DATED 07.01.2018.** - **EXHIBIT P3 THE TRUE COPY OF THE WRITTEN COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE SESSIONS JUDGE DATED 19.01.2018.** - **EXHIBIT P4 THE TRUE COPY OF THE ORDER OF THE SESSIONS COURT, KOLLAM IN CRL.M.C.NO.92/2018 DATED 23.01.2018.** - **EXHIBIT P5 THE TRUE COPY OF THE PURCHASE BILL DATED 01.12.2016.** - **EXHIBIT P6 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.04.2018.** - **EXHIBIT P7 THE TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE KERALA HUMAN RIGHTS COMMISSION DATED 17.04.2018.** - **EXHIBIT P8 THE TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 10.04.2018.** **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**