STATE OF ORISSA Vs. BHAMARLAL @ MUNALAL PARWALA

JUDGEMENT

(1.) This reference is under Sub -section (1) of Sec. 395, Code of Criminal Procedure made by the Judicial Magistrate, First Class, Umerkote with a reference to validity of certain aspects of the Notification made by the Central Government and the State Government under Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'N.D.P.S. Act'). In that connection necessary order was passed by the learned J.M.F.C. in G.R. Case No. 352 of 1986. On 8.9.1994 learned J.M.F.C passed the concerned order highlighting his doubts and formulating the points under reference. Therefore, this Court purely confines to the reference which has been made and does not go beyond that while dealing with the matter.

(2.) While dealing with the case in which prosecution under Sec. 9 (a) of Opium Act, 1878 was initiated as per the aforesaid G.R. Case record, learned Magistrate, taking into consideration about the date of occurrence being 29.11.1986 by which date the Opium Act, 1878 had already been repealed was of the opinion that the case was to be governed under the N.D.P.S. Act. While in seisin of the matter in that respect learned J.M.F.C. referring to the provision in Ss. 37, 42, 43, 56, Sub -section (3) of Sec. 1, Ss. 53 and 51 of the N.D.P.S. Act and the provision in Ss. 41, 156 (2) and Sec. 2 (o) of Code of Criminal Procedure besides S.O. No. 821 (E), dated 14.11.1985 of the Central Government, S.O. No. 822 (E), dated 14.11.1985 of the Central Government, S.O. No. 823 (E), dated 14.11.1985 of the Central Government, S.R.O. No. 601, dated 23.3.1988 of the Government of Orissa, S.R.O. No. 507, dated 20.7.1988 of the Government of Orissa relating to investment of powers on each investigating agency to conduct investigation and, above all, referring to the provisions of Articles 141, 254 and 256 of the Constitution of India, learned Magistrate formulated the following points for reference to this Court.

(3.) On a careful perusal of the entire order on the basis of which the reference was made and the above noted relevant provision from the different statutes, i.e., N.D.P.S. Act, Code of Criminal Procedure and Constitution of India, this Court finds that the doubt which the officer has entertained is regarding the conduct of the Central Govt. and the State Govt. in not authorising officers above the rank of Constable, Sepoy and Peon and below the rank of Inspector and Sub -Inspector to conduct the investigation and thereby making a breach of the enactment of the Parliament while sitting on the delegated legislation. A detail reference to the aforesaid S. Os., and S.R. Os. of the Central Govt. and the State Govt. respectively and the provisions from the statutes as noted above is not necessary to answer the reference inasmuch as on a conjoint reading of the said provisions it is clear that power has been delegated by the Act to the Central Govt. and the State Govts. respectively in respect of the selected officers of different departments for the purpose of carrying out different objects as assigned in the Act. The Parliament by the said enactment has observed that it is for the Central Government or the State Government to consider and appoint any officer above the rank of Peon, Sepoy of Constable. Therefore, the Parliament has not mandated in the Act that the Central Government or the State Government shall have to appoint officers below the rank of Inspectors or Sub -Inspectors but above the rank of Peon, Sepoy or Constable. What the legislators have intended is that, in their wisdom the executive side of the Government, i.e., the Central Government and the State Government shall consider suitable category of officers to be appointed for the purpose of investigation and to achieve other objects. In that context, this Court does not find that either the Central Government or the State Government by issuing respective S. Os and S.R. Os. have either violated the mandate of the legislation or have made a breach on delegated authority for making such provisions empowering officers to investigate or in that respect there has been any breach of Articles 14, 254 or 256 of the Constitution of India. Under such circumstance, it is not a fit case to advise the concerned Governments to make necessary corrections in their authorisation empowering different categories of officers. Reference is answered accordingly. It would be appropriate for the learned Magistrate now to proceed with the case in accordance with law.