STATE OF ORISSA Vs. HARI BEHERA

JUDGEMENT

(1.) The facts and circumstances giving rise to the present suo motu Criminal Revision are as follows : In course of inspection, the Chief Judicial Magistrate, Puri (in short, the 'C.J.M.') found that 2 (a) CC Case No. 5/86 and 2 (a) CC Case No. 14/86 were pending before the Judicial Magistrate, First Class, Daspalla, where cognizance had been taken, inter alia, Under Section 9 (a) of the Opium Act. The aforesaid two cases had been initiated on the basis of Prosecution Reports (in short, the 'P.R.') submitted by the Sub - Inspector of Excise Under Section 9 (a) of the Opium Act along with Section 47 (a) of the Bihar and Orissa Excise Act. It is admitted that the offences alleged to have been committed in both the cases took place after 14.11.1985, the date on which the Narcotic Drugs and Psychotropic Substances Act. 1985 (in short, the 'N.D.P.S. Act') came into force. The C.J.M. was of the view that since the Opium Act, stood repealed by virtue of Section 82(1) of the N.D.P.S. Act, no action could have been taken under the provisions of the Opium Act. The C.J.M. was also doubtful as to whether any action could be taken against the culprits under the provisions of the N.D.P.S. Act, as according to him, no rules had been framed by the State Government under the N.D.P.S. Act authorising a Sub -Inspector of Excise to investigate into any offence under the N.D.P.S. Act. Accordingly, the C.J.M. purported to refer the matter Under Section 395, Code of Criminal Procedure, 1973 (in short, the 'Cr,P.C') to the High Court for its opinion. On the basis of such letter of the C.J.M., Criminal Reference No. 2.90 was registered in this Court. In the said Reference, Hon'ble/l. Pasaxat, _ J. observed by judgment dated 4.11.1993 that reference at the instance of the C.J.M. was incompetent and accordingly directed that the matter should be placed before Hon'ble the Chief Justice to consider as to whether suo motu revisional power should be exercised. Thereafter, the present proceeding has been initiated. The two accused persons in the two cases have been noticed and they have entered appearance through lawyers.

(2.) THERE cannot be any doubt that after the repeal of the Opium Act. the two cases could not have been initiated Under Section 9 (a) of the said Act, nor any cognizance could have been taken thereunder in view of the admitted fact that the alleged offences occurred after 14.11.1 985, the date on which the Opium Act stood repealed by virtue of Section 82(1) of the N.D.P.S. Act.

(3.) THE learned counsels for the accused persons have placed strong reliance upon the decision of this Court reported in (1991) 4 OCR 610 (Sk. Sakaout and Ors. v. State of Orissa) and contended that the Sub -Inspector of Excise was not authorised to investigate into any offence committed under the N.D.P.S. Act prior to the issuance of the notification. dated 23.3.1988. In the aforesaid decision, R. C. Patnaik, J. (as his Lordship then was) has, in fact, so observed relying upon several decisions of the Rajasthan High Court. In view of the above decision, it has been submitted by the counsels for the accused persons that no proceedings under the N.D.P.S. Act should be initiated, on the basis of such ultra vires investigation by the Sub -Inspector of Excise. In the alternative, they have submitted that even assuming that action under the N.D.P.S. Act can be initiated, such; a course should not be adopted after a period of about thirteen years, particularly when the materials on record indicate that the mandatory provisions of the N.D.P.S. Act relating to search and seizure are not complied with. It is, therefore, submitted that since no useful purpose would be served by initiating a fresh prosecution under the N.D.P.S. Act, such a course should not be adopted after such a long lapse of time.