(1.) The question raised by the learned counsel for the petitioner is of considerable importance. It is his submission that an Assistant Sub -Inspector of Police not authorised under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') to effect arrest, conduct search or make seizure if does perform these acts and lodges the first information report at the police station basing on which a case is registered investigated by the officer -in -charge, and charge sheet is submitted, the cognizance taken by the Sub -Divisional Judicial Magistrate Under Section 28 of the Act against the accused on the basis of the charge sheet and submission of the case to the Sessions Judge for trial are liable to be quashed. The Assistant Sub -Inspector of Police was performing patrolling duty on 19 4 -1992 in the Brahmanipal weekly market during course of which he suspected the petitioner to be selling contraband Ganja in his show -stall and on coducting a search he seized 380 grams of Ganja in 23 small packets. He arrested the petitioner and finding commission of a cognizable case Under Section 20 of the Act on preliminary investigation, sent the first information report drawn up by him to the police station. A case was registered in the police station on the basis of the report and the Officer -in -charge, who is authorised under the Act to do so carried on the investigation, recorded the statements of the seizure witnesses Under Section 161 of the Code of Criminal Procedure, 1978 and on completion o1 the investigation, submitted the charge sheet. The learned Sub -Divisional Judicial Magistrate took cognizance on the basis of the charge -sheet Under Section 20 of the Act and submitted the file to the Sessions Judge who framed charge against the petitioner under that section on 24 -9 -1992. It is the submission of Mr. Mohapatra, the learned counsel for the petitioner, that Section 42 of the Act makes the provision for the State Government to empower, by general or special order, an officer inter alia of police department above the rank of a Sepoy or a Constable for search, seizure, detention and arrest, but as the Assistant Sub -Inspector of Police was not so empowered, the arrest, detention, search and the seizure made in the case were without Jurisdiction, no action could be taken subsequently on the basis of such illegal exercise of jurisdiction and hence not only the investigation carried on by the Officer -in charge but also the cognizance taken in the case by the Sub -Divisional Judicial Magistrate and the subsequent framing of the charge by the Sessions judge are illegal and without jurisdiction. In support of the submission, the learned counsel has relied upon a number of citations including 34(1992) OJD 13 (Cri. ) (Sk. Saukat and Ors. v. State of Orissa) which directly supports the proposition advanced. I shall come back to the citations after making an analysis of the question.
(2.) COGNIZANCE of an offence under the Act is taken Under Section 36A(1))d) which says that the Special Court may take cognizance of an offence either upon a perusal of police report of the facts constituting an offence or upon a complaint made by an officer of the Central Government or the State Government authorised in that behalf. That provision specifically authorises the Special Court to take cognizance without any commitment being made to it of the case. Though there is some divergence of opinion as was reflected in the Full Bench decision, 1992 (II) OLR 395 (Banka Das etc. v. State of Orissa) as to whether the Sessions Court is to function as the Special Court in the absence of notification constituting the Special Court, yet as far as the basis of taking cognizance by the Special Court is concerned, it is either upon a police report or upon a complaint as provided Under Section 36 -A(1)(d) or even if a commital proceeding is considered necessary, the cognizance is to be taken by the Magistrate Under Section 190, Cr PC, upon police report or upon a complaint made by a person other than a police officer or upon an information received from any person or upon his own knowledge. It is the law declared by the Supreme Court since 1964 published in AIR 1955 SC 196 (H. R. Rishud and Anr. v. State of Delhi) that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was pointed out that though a police report submitted on the basis of investigation conducted by the police is a material on the basis of which cognizance may be taken, yet it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance; juxtaposing the provisions of Section 190 of the Code of Criminal Procedure, 1893 with those of Sections 193, 195 to 199 of the same Code, it was pointed out that whereas the latter Sections regulated competence of the Court and barred its jurisdiction in certain cases unless the provisions were complied with, yet Section 190 did not so provide and that it was not possible to say that cognizance on an invalid police report was prohibited and was therefore, a nullity. It was further explained, on a logical consequence, that if cognizance is in fact taken on a police report vitiated by breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. In reaching the conclusions reliance was also placed on AIR 1944 PC 73 Qamr -ud -din and Ors. v. Mt. Fateh Damn and Ors.) and AIR 1950 PC 26 (Lumbhardar Zutshi and Anr. v. The King) The question had arisen for consideration before the Supreme Court on the plea advanced in a case under the Prevention of Corruption Act (Act 2 of 1947) that the investigation having not been conducted by a Deputy Superintendent of Police but by officers of lower rank, the proceedings before the Special Judge were liable to be quashed.
(3.) THIS view of the law has been taken since cognizance taken Under Section 190(1) Cr PC is not necessarily based upon a police report and taking cognizance upon an invalid police report is also not prohibited under the section. In the case of H. R. Rishbud (supra), the Apex Court pointed out that an invalid report may still fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance taken upon such a report is only in the nature of a proceeding antecedent to the trial and was curable Under Section 537 Cr PC. 1898 corresponding to Section 465 of the present Code. Obviously, when the Supreme Court said about the police report being invalid what was meant as is also explicit from the later observation in para -9 of the judgment, was that the report was vitiated by breach of the mandatory provisions relating to investigation. The Court hence observed, on taking cognizance upon the report was itself not prohibited Under Section 190(1), that there can be no doubt that the result of the trial which follows the taking of such cognizance cannot be set aside unless the illegality in the investigation can be shown to have caused miscarriage of justice. Having reached such conclusions, the Supreme Court pointed out that even so the invalidity of investigation is not to be completely ignored by the Courts during the trial and if the breach of any mandatory provision is brought to the notice of the Court at sufficiently early stage, it would, while not declining cognizance, have to take necessary steps to get the illegality cured and defect rectified by ordering such re -investigation as the circumstances of each individual case may call for. In taking the view, the Court also said that the Special Judge for the purpose of the procedure of the trial is virtually in the position of a Magistrate trying a warrant case.