IN RE: SESSIONS JUDGE Vs. STATE

JUDGEMENT

(1.) THESE two criminal references have been referred to the Division Bench, as it was felt that the decision' In Stated. Moidu : (1990 (2) K. L. J: 202) is in conflict with the decision of the Full Bench reported in Moideenkutty Haji V. Kunhikoya, 1987,(1). K. L. T. 635).

(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 section 202 (2) of the Code of Criminal Procedure (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) K. L. J 202) held that in a prosecution for offences punishable under the N. DP.S Act the Magistrate need not conduct an enquiry under section 202(2) of the Code before committing the case to the Sessions Court. In Rajkumar Karwal v. Union of India ( : 1990(2) SCC 409) the Supreme Court held that even if an officer is inverted 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 section 25 of toe Evidence Act. The Court further held :

(3.) REGARDING the power of the special court to take cognizance the Supreme Court had occasion to consider the same in A, R Antulay v. S.S, Novak ( : AIR 1984 S. C. 718). The Court held: