STATE CIRCLE INSPECTOR OF EXCISE CANNUR Vs. STATE

JUDGEMENT

(1.) These two criminal references have been referred to the Division Bench, as it was felt that the decision in State v. Moidu, (1 990) 2 Ker LJ 202: (1991 Cri LJ 800) is in conflict with the decision of the Full Bench reported in Moideenkutty Haji v. Kunhikoya, (1987) 1 Ker LT 635 : (1987 Cri LJ 1106).

(2.) In criminal reference No. 5/90 the question that arises for consideration is whether in a complaint filed under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) the Magistrate should conduct enquiry contemplated under S. 202(2) of the Criminal P.C. (for short the Code) and commit the case to Sessions Court or whether the Sessions Court empowered under S. 36D to try cases under the N.D.P.S. Act itself is competent to take cognizance of the offence as if it is a court of original jurisdiction. The learned single Judge in State v. Moidu, (1990) 2 Ker LJ 202: (1991 Cri LJ 800) held that in a prosecution for offences punishable under the N.D.P.S. Act the Magistrate need not conduct an enquiry under S. 202(2) of the Code before committing the case to the Sessions Court.

(3.) In Rajkumar Karwal v. Union of India, (1990) 2 SCC 409 : (1991, Cri LJ 97), the Supreme Court held that even if an officer is invested under any special law with powers analogous to those exercised, by a police officer-in-charge of a police station investigating a cognizable offence he does not thereby become a police officer under S. 25 of the Evidence Act. The Court further held :