SK SAKAOUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure by the three petitioners for the quashing of the cognisance taken by the learned Judicial Magistrate, First Class, Balasore, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) HASINA Bibi, petitioner No. 3, is the owner of a mini -truck. Petitioner No. 1 is her husband and Sk. Kutub, petitioner No. 2, is the driver. 66 gunnybags each containing 35 Kgs. of poppy powder were recovered from the vehicle. Though the petitioners were originally released by the arresting authority on 8 -11 -1987 and continued on bail for sometime, cognisance was taken under Section 18 of the Narcotic Drugs and Psychotropic Substances Act(for short, 'the NDPS Act' on 20 -2 -1991 and the case was committed to the Court of Session for trial. The petitioners have challenged the cognisance taken under Section 18 of the Act on the ground that the officers conducting the investigation and arresting the petitioners were not empowered to do so. The Act came into force with effect from 14 -11 -1985. The date of occurrence is 8 -11 -1937. Hence, the entire investigation conducted by officers not empowered in that behalf under the Act was ultra vires.

(3.) THOUGH several decisions were cited before me, it is unnecessary to multiply. Suffice it for me to refer a decision of the Rajasthan High Court in Shanti Lal v. State of Rajasthan, 1939 (1) Crimes 276, where the occurrence took place on 26 -2 -1936 but the notification authorising the officer to make search, and arrest the accused came later, i. e. on 16 -10 -1986. Though there had been a conviction, the learned Judge holding that the detention, search and arrest of the accused was unauthorised, acquitted him. Similar view was also taken by that very Court in Nand Lal v. State of Rajasthan, 1887 Crl. L. J. 698, wherein Dave, J. said that officers having been empowered on 16 -10 -1936, they had no jurisdiction to take any action on 23 -11 -1985. Farooq Hassan, J., in Umrav v. State of Rajasthan, 1988 Raj. Crl. Cases 113 also took the same view. I am in respectful agreement with the views aforesaid.