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Mr. Jayaram has contended that the State Government has the prime responsibility over the crime, law and order situation within its territory. It has also been contended by Mr. Jayaram that in view of the consent given by the Government of Rajasthan, Department of Personnel and Administrative Reforms of the Central Government vide Order No228/2/74-AVD/II dated October 26, 1977, in Exercise of the powers Conferred under section 5 the DSPE Act, notified the offences under FERA for investigation by DSPE in various States including the State of Rajasthan. Mr. Jayaram has submitted that a consolidated notification bearing No.228/8/89-AVD/II dated September 7, 1989 was issued under Section 3 of the DSPE Act in respect of the offences for which consent by all the State Governments has been given for the pursue of investigation by the CBI and the offences under FERA are at SL. No. 19 of the list of Central Acts notified investigation by the members of DSPE. Mr. Jayaram Magistrate and the High Court failed to appreciate the implication of the Special legislation which deals with all types of offences either to be departmentally dealt with in adjudication proceedings as well conviction by a court of law if so warranted. Mr. Jayaram has submitted that Section 5 of undoubtedly confers authority on Central Government to Enforcement or his subordinates to a Police Officer. Hence, the notification issued under Section 3 pf DSPE Act authorising the officers of DSPE to investigate into the offences under FERA must be held to be a due authorisation under Section 5 of FERA.

Mr. Jayaram has also submitted that Section 3 of the DSPE Act empowers the Central Government to specify the offences to be investigated by the members of DSPE. The offences under FERA have been mentioned in the notification empowering the members of the DSPE. The superintendence of DSPE vests in the Central Government and section 5 of DSPE Act empowers the Central Government to extend to any area in a State, not in a Union Territory, the powers and the jurisdiction of the members of the Establishment for investigation of any offences or classes of offences specified under Section 3. Subject to the orders of the Central Government, the members of such establishment exercising such extended powers and jurisdiction are to be deemed to be the members of the Police Force of that area for the purpose of powers, functions, privileges and liabilities; but the powers and jurisdiction of a member of DSPE in such State is to be Exercised only with the consent of the Government of the State concerned. Mr. Jayaram has submitted that the scheme of DSPE Act does not either expressly or by necessary implication divest the police authorities of their jurisdiction and powers under any other competent law. Mr. Jayaram has also submitted that DSPE Act is only permissive and empowers the members of DSPE also to investigate all the offences specified under Section 3 of DSPE Act. In support of this contention, Mr. Jayaram has relied on the observation at paragraph 12 in the decision of this Court in A.C. Sharma V. Delhi Administration (AIR 1973 so 913). Mr. Jayaram has submitted that by authorising the members of the CBI to cause investigations relating to the offences under FERA, the power conferred or the officers of the enforcement under FERA has not been taken away.

Mr. Sen has also submitted that Sections 3 and 5 of the DSPE Act cannot be applicable for the offences said to have been committed outside the country. Mr. Sen has also submitted that Section 25 of FARA provides that no person resident in India shall. except with the general or special permission of the Reserve Bank of India Acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate outside India. The offence under Section 25 cannot be committed in India. Therefore, the powers by the Notification issued under DSPE Act purporting to authorise the officers of the DSPE to investigate in respect of the offences committed outside India under FARA is beyond the provisions of the DSPE act and such Notification is ex facie illegal. Mr Sen has , therefore, submitted that the learned Chief Judicial Magistrate has rightly rejected the application made under Section 155 of the code of Criminal Procedure and the High Court has rightly rejected the application under Section 482 of the Code of Criminal Procedure and the High Court has rightly rejected the application under Section 482 of the Code of Criminal Procedure to challenge the said decision of the learned Chief Judicial Magistrate. He has therefore, submitted that the appeal should be dismissed.

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 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 wit 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 Section 3 and 5 have been issued by the Central Government authorising members of DSPE to investigate various offences including offences under FERA in number of States outside Union Territory including the State of Rajasthan.