V P SDIQUE Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) PETITIONER is accused No.1 in C.C.No.228 of 2010 of the court of learned Chief Judicial Magistrate, Kozhikode arising from Crime No.106 of 2004 of Kasba Police Station, Kozhikode for offences punishable under Sections 4(1), 8 (a) and 7(2)(a) of the Immoral Traffic (Prevention) Act (for short, "the Act"). PETITIONER seeks to quash the proceedings against him on various grounds including that the Sub Inspector who is said to have conducted search was not authorised to do so, investigation was conducted by the Assistant Sub Inspector and that final report was filed by the Sub Inspector, all against provisions of the Act and hence per se illegal. In support of the contentions learned counsel has placed reliance on the decisions in Sinu Sainudheen v. Sub Inspector of Police (2002(1) KLT 693) and Radhakrishnan v. State of Kerala (2008(2) KLT 521). It is also the contention of petitioner that even on the materials stated in final report, no offence as alleged is attracted against petitioner.

(2.) I have heard learned counsel for petitioner and the learned Public Prosecutor.

(3.) SECTION 14 of the Act deals with taking cognizance of the offence and Sub-section (i) states that notwithstanding anything contained in the Code of Criminal Procedure (for short, "the Code") arrest without warrant may be made only by the Special Police Officer or under his direction or guidance, or subject to his prior approval. In the matter of search or investigation no such authorisation is provided under the Act. It follows that the search and investigation have to be conducted by the Special Police Officer or the Trafficking Police Officer as defined in SECTIONs 2(i) and (j) of the Act . In the present case search was done by the Sub Inspector, investigation was conducted by the Assistant Sub Inspector and final report was submitted, again by the Sub Inspector. In Radhakrishnan v. State of Kerala (supra) this Court held that an officer not below the rank of an Inspector of Police (i.e, the Circle Inspector of Police) alone can be appointed by the State Government as a Special Police Officer. In Sinu Sainudheen v. Sub Inspector of Police (supra) the power of Special Police Officer to depute another officer for arrest is stated (in paragraph 7). In paragraph 11 it is held that the Sub Inspector is not a Police Officer competent to conduct search under SECTION 15 of the Act because the SECTION specifically provides that the Special Police Officer or the Trafficking Police Officer is to conduct the search, illegality in conducting search and arrest can be a ground for quashing the proceedings, if it is found that search and arrest were done by the officer not in accordance with the provisions of law and possibility of the case ending in a conviction is not there.