Orissa High Court
Sk. Sakaout And Ors. vs State Of Orissa on 11 October, 1991
Equivalent citations: 1992(I)OLR89
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. This is an application under Section 482 of the Code of Criminal Procedure by the three petitioners for the quashing of the cognisance taken by the learned Judicial Magistrate, First Class, Balasore, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Hasina Bibi, petitioner No. 3, is the owner of a mini-truck. Petitioner No. 1 is her husband and Sk. Kutub, petitioner No. 2, is the driver. 66 gunnybags each containing 35 Kgs. of poppy powder were recovered from the vehicle. Though the petitioners were originally released by the arresting authority on 8-11-1987 and continued on bail for sometime, cognisance was taken under Section 18 of the Narcotic Drugs and Psychotropic Substances Act(for short, 'the NDPS Act' on 20-2-1991 and the case was committed to the Court of Session for trial. The petitioners have challenged the cognisance taken under Section 18 of the Act on the ground that the officers conducting the investigation and arresting the petitioners were not empowered to do so. The Act came into force with effect from 14-11-1985. The date of occurrence is 8-11-1937. Hence, the entire investigation conducted by officers not empowered in that behalf under the Act was ultra vires.
3. Sections 41, 42(1) and 53 contain provisions authorising officers specified therein to conduct investigation and to do such acts as enumerated therein. It is alleged that the officer who arrested the petitioners and conducted the investigation had not been empowered by appropriate notification to take action under the Act. The State of Orissa by notification dated 23-3-1988 empowered all officers above the rank, of Sub-Inspector of the Excise Department of the State to exercise the powers and perform the duties specified in the said sections. Section. 62 repealed the Opium Act, 1878 but provided in Sub-section (2) that the repeal would not affect anything done or any action taken or purported to have been done or taken under the repealed enactment in so far as the same is not inconsistent with the provisions of the NDPS Act and shall be deemed to have been done and taken under the corresponding provisions of the Act. It, therefore, follows that with effect from 14-11-1986, the Opium Act stood repealed and no action under the Opium Act had been taken prior to its repeal by Section 82. The allegation are that the petitioners had committed an offence under Section 18 of the Act. Hence, the procedure that is prescribed in Chapter V, namely. Sections 41(2), 42(1) and 53(2) were applicable. There is no dispute that by the date of occurrence, the officer who took action by way of arrest, investigation etc. had not been empowered to do so by a notification issued by the State Government under the N. D. P. S. Act. Hence, the investigation was ultra vires.
4. Though several decisions were cited before me, it is unnecessary to multiply. Suffice it for me to refer a decision of the Rajasthan High Court in Shanti Lal v. State of Rajasthan, 1939 (1) Crimes 276, where the occurrence took place on 26-2-1936 but the notification authorising the officer to make search, and arrest the accused came later, i. e. on 16-10-1986. Though there had been a conviction, the learned Judge holding that the detention, search and arrest of the accused was unauthorised, acquitted him. Similar view was also taken by that very Court in Nand Lal v. State of Rajasthan, 1887 Crl. L. J. 698, wherein Dave, J. said that officers having been empowered on 16-10-1936, they had no jurisdiction to take any action on 23-11-1985. Farooq Hassan, J., in Umrav v. State of Rajasthan, 1988 Raj. Crl. Cases 113 also took the same view. I am in respectful agreement with the views aforesaid.
5. It is not a case where though the officers had been empowered, there was some irregularity in the manner of investigation, search and seizure not vitiating the decision. Here is a case where the Sub-Inspector of Excise who arrested the petitioner, seized the articles, conducted the investigation and submitted the report was not empowered till 23-3-1983 to take action under the N. D. P. S. Act. The cognisance, therefore, is misconceived and unsustainable.
6. I, therefore, accept the application and quash the order of cognisance dated 23-2-1991 passed in 2(a) CC No. 153 of 1987 now pending before the Sessions Judge, Balasore, in Sessions Trial No. 37 of 1991.