IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.L.P..No. 1639 of 2008() --------------------------- S.C. 2516/06 OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE NDPS ACT PETITIONER/COMPLAINANT ------------------------------------------ INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU, REGIONAL INTELLIGENCE UNIT, THIRUVANANTHAPURAM. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT(S): A1 TO A3 ----------------------- 1. SELVARAJAN @ RAJAN,S/O.LATE KALIATH, HOUSE NO.1, 141/92, MANAKUDI.P.O, KANYAKUMARI DISTRICT, TAMIL NADU. 2. A.SATHEESH, S/O.LATE ARULAPPAN, HOUSE NO.3, 110, KEEZHMANAKUDI, MANAKUDI.PO, KANYAKUMARI DISTRICT, TAMIL NADU. 3. FAROOK MOHIDEEN SAMEER @ CAMLE SINGHE @ SAMEER @ SWAMI, (SRILANKAN)MALE AGED 42, LESIYAVATHE, VELLAMBIDIYE COLOMBO, SRILANKA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/11/2008, A/W. CRLP 1640 OF 2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.L.P.Nos. 1639 & 1640 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2008 O R D E R These petitions are filed under Section 378(4) Cr.P.C. by the common petitioner i.e. the Intelligence Officer, Narcotic Control Bureau. He has preferred these petitions seeking leave to appeal under Section 378(4) Cr.P.C. He is aggrieved by the judgment of acquittal rendered in SC 2516 of 2006 and S.C.531 of 2007. In fact in S.C. 2516 of 2006, two of the accused have been convicted for certain offences, but have been acquitted for other offences. The third accused has been acquitted completely. In S.C. 531 of 2007, the 4th accused stood separate trial and he has been exonerated completely. Leave is sought to appeal against the total acquittal of accused 3 and 4 as also acquittal of accused 1 and 2 on certain charges. 2. I do note that on account of an obvious error the appeals had been numbered earlier as Crl.A.Nos. 2341 and 2346 of 2008. Crl.L.P.Nos. 1639 & 1640 of 2008 2 3. I have been taken through the relevant provisions in detail. Cognizance is taken on the basis of a complaint filed by an authorised officer under Section 36A(1)(d) of the N.D.P.S. Act.. Therefore the prosecution is one which is initiated on the basis of a complaint. The appeal, it must be noted, is also filed not under Section 378(2) Cr.P.C., but only under Section 378(4) Cr.P.C. It is true that the special Public Prosecutor is appearing for the complainant, but the fact remains that the appeal is not preferred by the Special Prosecutor on the directions of the Government and is preferred by the complainant under Section 378(4) Cr.P.C. Therefore leave under Section 378(4) Cr.P.C. is absolutely essential for proper institution of the appeals under Section 378(4) Cr.P.C. 4. I have heard the learned Special Prosecutor in detail. I am satisfied that leave can be granted. In these circumstances, notwithstanding the fact that Crl.A. Nos. 2341 and 2346 of 2008 have already been registered, overlooking the fact that a specific application for leave had not been filed, I am satisfied that these petitions can now be allowed and the formal defect in having numbered Appeals 2341 Crl.L.P.Nos. 1639 & 1640 of 2008 3 and 2346 of 2008 without and before granting the requisite leave under Section 378(4) Cr.P.C. can be regularised and the defects cured. 5. These Crl.L.Ps. are in these circumstances allowed. The requisite leave is granted under Section 378(4) Cr.P.C. Appeals 2341 and 2346 of 2008 having already been registered, no further orders are necessary in those appeals now. 6. The Registry shall hereafter ensure that all such appeals are numbered only after a proper application for leave is filed and leave granted. (R. BASANT) Judge tm