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17. Learned counsel further submitted that the entire case of CBI is that there was unauthorized construction and, therefore, it should be presumed that there was collusion between the Architect, MCD Officers and Engineers and some pecuniary advantages were made to the owner, as a result of the said unauthorized construction.
18. He submitted that the entire case of CBI is based on the presumption that there was illegal and unauthorized construction in the year 1991. The action of CBI is wholly without jurisdiction as offences under the MCD Act are not notified by the Central Government under Section 3 of The Delhi Special Police Establishment Act, 1946 (hereinafter to be referred as „DSPE Act‟). CBI is empowered to investigate only the offence notified by the Central Government under Section 5 of DSPE Act. The MCD Act is a special Act and application of any other Act is excluded.
―26. The member of DSPE is a member of police force constituted under DSPE Act by the Central Government. Under DSPE Act, a member of DSPE can exercise the power of investigation in the offence or offences as specified in Section 3 of DSPE Act within Union Territory. For exercising power of investigation outside Union Territory, even in respect of offences specified under Section 3 of DSPE Act, a notification extending jurisdiction in the State or States outside Union Territory is required to be issued by the Central Government with the consent of such State Government or Governments. Unless such notification under Section 5 of DSPE Act is issued, a member of DSPE cannot investigate and exercise jurisdiction under DSPE Act in respect of offence or offences specified in Section 3 in a State outside the Union Territory. It has already been indicated that notifications under Sections 3 and 5 have been issued by the Central Government authorising members of DSPE to investigate various offences including offences under FERA in a number of States outside Union Territory including the State of Rajasthan.
27. In our view, such notifications under Sections 3 and 5 of DSPE Act are necessary for the purpose of exercising powers by a member of DSPE in respect of offence or offences and in respect of areas outside the Union Territory. It may however be noted here that by a general notification, members of DSPE may be authorised to exercise power of investigation in respect of offence or offences and in areas as specified in the notification under Sections 3 and 5. As already indicated. Although officers of Enforcement Directorate are clothed with the powers and duties to enforce implementation of the provisions of FERA, the Central Government has been authorised to impose on other officers including a police officer, power and authority to discharge such of the duties and functions as may be specified by it. It is nobody's case that any notification has been issued under FERA authorising the member of DSPE to discharge the duties and functions of an officer of Enforcement Directorate. In our view, in the absence of such notification under FERA, a member of DSPE, despite the aforesaid notifications under Sections 3 and 5 of DSPE Act, cannot be held to be an officer under FERA and therefore is not competent to investigate into the offences under FERA.‖
106. Under Section 3 of DSPE Act, 1946, CBI is only empowered to investigate the offence notified by the Central Government under Section 5 of DSPE Act. It is not in dispute that the charges against the petitioners are in pursuance of the violation under the MCD Act. On direction of the CBI, a committee of the officers of the MCD was constituted, who submitted their report regarding unauthorized construction and violations of the MCD Act. Accordingly, CBI filed the chargesheet relying upon the said report.