SASI Vs. STATE OF KERALA

JUDGEMENT

(1.) An important question of law was referred to the Division Bench by Justice MR. Hariharan Nair disagreeing with the view taken by the Single Judge in Soumini v. State of Kerala. According to the above decision, the notification empowering all the officers in the police department of and above the rank of S.I. etc., to exercise the power of entry search-seizure and arrest without warrant or authorisation mentioned under Sec. 42 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as NDPS Act) cannot be acted upon as the same is not placed before the Legislature and made it a Rule. Sec. 42 of the NDPS Act (wrongly mentioned in the above judgment as Rules) reads as follows:

(2.) The above section is very clear that the State Government has got power to issue general or special order authorising any officer in Police and other department superior in rank to a peon, sepoy or constable with power of entry, search, seizure and arrest without warrant or authorisation under Sec. 42 of the Act. For that a rule need not be framed or proceedings for framing rules need not be accepted with. In exercise of the powers conferred under sub-sec. (1) of Secs. 42 and 67 of the NDPS Act, the following notification G.O.(Ms.) No. 146/90/ TD dated 22-10-1990 was published, empowering all officers of the Police Department of and above the rank of S.I. of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the powers under Secs. 42 and 67 of the NDPS Act:

(3.) Government has got power under Sec. 42(1) of the NDPS Act to authorise any officer as described in the Section by special or general order. The above quoted notification is a general order empowering all officers in the Police Department of and above the rank of Sub-Inspector and in the Excise Department of and above the rank of Excise Inspector to conduct seizure etc., as authorised under Sec. 42 of the Act. Another reason stated by the learned Judge in the above case is that the Officer who conducted the seizure in that case was not a station officer. Nowhere in Sec. 42 it is stated that power exercised under Sec. 42 can be done by a Station Officer. We also hold that for empowering an officer to act under Sec. 42, that Officer need not be in-charge of a police station.