The Powerful Triumvirate

With at least three major agencies involved in the case, it would be pertinent to study their respective powers, scope and ability to influence the probe.

By Sujit Bhar

The increasing complexity of the Sushant Singh Rajput case has led to the involvement of three top agencies which are probing various angles. These are the Central Bureau of Investigation (CBI), the Narcotics Control Bureau (NCB) and the Enforcement Directorate (ED).

The CBI

This agency is not as much of a pan-India investigative agency as is perceived. It is a national agency, certainly, with police powers. However, its primary jurisdiction is confined to Delhi and the Union Territories. As policing (detecting crime and maintaining law and order) is a state subject, the law allows the CBI to function in any state only with its consent.

The Bihar government has recommended that the CBI probe the Rajput case and the Supreme Court had said that the state government was competent to do this. Andhra Pradesh and West Bengal have withdrawn their general consent to the CBI to operate within their territories.

The CBI draws its power from the Delhi Special Police Establishment (DSPE) Act. The Home Ministry, through a resolution, set up the agency in April 1963. Under Section 5 of the Act, the central government can extend its powers and jurisdiction to the states for investigation of specified offences. However, this power is restricted by Section 6 which says its powers and jurisdiction cannot be extended to any state without the consent of the government of that state.

What happens to cases where there is a demand for a CBI probe?

The Supreme Court has made it clear that when it or a High Court directs that a particular investigation be handed over to the CBI, there is no need for any consent under the DSPE Act. A landmark judgment in this regard was the 2010 Supreme Court decision by which the case of the killing of 11 Trinamool Congress workers in West Bengal in 2001 was handed over to the CBI.

The legal powers of investigation of the CBI are derived from the DSPE Act, 1946. This Act confers concurrent and coextensive powers, duties, privileges and liabilities on members of Delhi Special Police Establishment with police officers of the Union Territories. The central government may extend to any area, besides Union Territories, the powers and jurisdiction of members of the CBI for investigation, subject to the consent of that state government. While exercising such powers, members of the CBI of or above the rank of sub-inspector shall be deemed to be officers in-charge of police stations of respective jurisdictions. The CBI can investigate only such offences as are notified by the central government under the DSPE Act.

Law and order is a state subject and the basic jurisdiction to investigate crime lies with the state police. Besides, due to limited resources, the CBI would not be able to investigate crimes of all kinds. The CBI may investigate:

• Cases which are essentially against central government employees or concerning affairs of the central government.
• Cases in which the financial interests of the central government are involved.
• Cases relating to breaches of central laws with the enforcement of which the government of India is mainly concerned.
• Big cases of fraud, cheating, embezzlement and the like relating to companies, in which large funds are involved and similar cases when committed by organised gangs or professional criminals having ramifications in several states.
• Cases having interstate and international ramifications and involving several official agencies where, from all angles, it is considered necessary that a single investigating agency should be in charge of the investigation.

Narcotics Control Bureau

The Narcotics Control Bureau (NCB) was set up as the apex drug law enforcement agency with the view to coordinate actions of various central/state agencies in matters related with drug law in the country. India is a signatory to various international drug-related UN conventions and the responsibility of implementation of the provisions of these international conventions also lies with the NCB.

The responsibility of drug abuse control, which is a central function, is carried out through a number of ministries, departments and organisations. These include the Ministry of Finance and Department of Revenue, which has the nodal co-ordination role as administrator of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

In the presence of this provision, the Government of India constituted the Narcotics Control Bureau on March 17, 1986. The Bureau, subject to the supervision and control of the central government, is to exercise the powers and functions of the central government for taking measures with respect to:

• Co-ordination of actions by various offices, state governments and other authorities under the NDPS Act, Customs Act, Drugs and Cosmetics Act and any other law for the time being in force in connection with the enforcement provisions of the NDPS Act, 1985.
• Implementation of the obligation in respect of counter measures against illicit traffic under various international conventions and protocols that are in force at present or which may be ratified or acceded to by India in future.
• Assistance to concerned authorities in foreign countries and concerned international organisations to facilitate coordination and universal action for prevention and suppression of illicit traffic in these drugs and substances.
• Coordination of actions taken by the other concerned ministries, departments and organisations in respect of matters relating to drug abuse.

The NCB has always worked with other agencies and that is the nature of its work. It does not override other agencies’ authorities or jurisdictions.

Enforcement Directorate

The main functions of the Directorate are:

• Investigate contraventions of the provisions of Foreign Exchange Management Act, 1999 (FEMA) which came into force with effect from June 1, 2000. Contraventions of FEMA are dealt with by way of adjudication by designated authorities of ED and penalties up to three times the sum involved can be imposed.
• Investigate offences of money laundering under the provisions of Prevention of Money Laundering Act, 2002 (PMLA) which came into force with effect from July 1, 2005 and to take actions of attachment and confiscation of property if the same is determined to be proceeds of crime derived from a Scheduled Offence under PMLA, and to prosecute the persons involved in the offence of money laundering. There are 156 offences under 28 statutes which are Scheduled Offences under PMLA.
• Adjudicate show cause notices issued under the repealed FERA up to May 31, 2002, for the alleged contraventions of the Act which may result in imposition of penalties. Pursue prosecutions launched under FERA in the concerned courts.
• Processing cases of fugitive/s from India under the Fugitive Economic Offenders Act, 2018. The objective of this Act is to provide measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts and to preserve the sanctity of the rule of law in India.
• Sponsor cases of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) in regard to contraventions of FEMA.
• Render cooperation to foreign countries in matters relating to money laundering and restitution of assets under the provisions of PMLA and to seek cooperation in such matters.

In the final analysis, the agencies have cooperated before and if they are humble enough to share critical data, they can do so now as well.

Lead Picture: UNI