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TMI Blog1990 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... wered under the Narcotic Drugs and Psychotropic Substances Act to investigate into offences and prosecute the offenders are not police officers, entitled to file a report or a charge-sheet under Section 173(2) of the Code of Criminal Procedure, but should file complaint under Section 190 of the Code of Criminal Procedure and since such a complaint under the above Act will be in respect of an offence triable exclusively by the Court of Session, the Court which takes cognizance of the complaint has to conduct an enquiry in terms of sub-section (2) of Section 202, in view of the decision of a Full Bench of this Court reported in Moideenkutty Haji v. Kunhikoya, 1987 (1) KLT 635. He has pointed out that since the committal court did not conduct the enquiry, the order of committal is illegal. He can neither set it aside in view of the decision in John Samuel v. State of Kerala-1985 KLT 902, nor send back the records to the committal Magistrate for passing a fresh order after complying with the mandatory legal provisions. He has, therefore, made a reference to this Court under Section 395(2) of the Code of Criminal Procedure for decision on the following question: When a court of sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides for transitional provisions for trial by the Court of Session, pending constitution of the Special Court under Section 36. Offences under the Act are cognizable and non-bailable. 7. Chapter V of the Act contains provisions relating to procedure to be followed by officers appointed to implement the Act. Under sub-section (1) of Section 41, - A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. Power to arrest, search, seizure without warrant or authorisation etc., is conferred on officers under sub-section 41(2), and Sections 42 to 44. Power to stop and search conveyance or good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry ; and (c) examine any person acquainted with the facts and circumstances of the case." 8. Section 36 and 36A to 36D of the Act came into force with effect from 29-5-1989. Special Courts have now been constituted in Kerala. By virtue of Section 36D of the Act, offences under the Act will have to be tried by the Court of Session, which is not obliged to transfer the case to the Special Court, if, during the pendency of the trial, such a Court has been established. The Court of Session itself can give judgment in the case. 9. The Supreme Court held in Rajkumar Karwal v. Union of India, (1990) 2 SCC 409, that the powers of investigation and enquiry conferred upon officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which discloses an offence exclusively triable by a Court of Session and who records the statement of the complainant as contemplated by Section 200 of the Code of Criminal Procedure, should also resort to the enquiry envisaged in Section 202(1) and by virtue of the proviso to sub-section (2), is he bound to call upon the complainant to produce all his witnesses and examine them on oath ? The Full Bench held, that- It is evident that the legislature intended two different types of enquiries, a discretionary enquiry in ordinary complaint cases and a mandatory enquiry in complaint cases under Section 202. In the discretionary enquiry the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to Section 202(1). The Magistrate will have to conduct the enquiry himself and he cannot order investigation. It is true that the said discretion is absent in another category of cases coming under proviso (b) to Section 202(1) also. But we are not concerned with such cases here. In a discretionary enquiry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 202, in complaint cases was not conducted, documents mentioned in Section 207 would not be available to the accused, who would thereby be in a disadvantageous position. According to the Full Bench the object of the provisions of Section 202, when taken along with Sections 208 and 209, is to place the accused in a complaint case in the same advantageous position as the accused in a police charge case. 12. It is of interest to note that the decision was rendered in relation to committal orders passed in private complaint cases triable by the Court of Session. The Full Bench did not deal with complaints of public servants filed under Sections 190(1) and 200 of the Code of Criminal Procedure, which disclosed an offence triable by a Court of Session. There are obvious differences between ordinary private complaints and complaints laid by public servants acting or purporting to act in their official capacity. A Magistrate taking cognizance of a complaint under Section 200 of the Code of Criminal Procedure shall examine on oath the complainant and the witnesses, if any, present and the substance of such examination shall be reduced to writing and shall be signed by the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple had been examined by the Chemical Examiner and report also had been produced. All these had been done by the investigating/enquiry officer, who had been empowered under the Act. There is no doubt, that there was investigation/enquiry into the offence conducted under the authority of law. All the materials on which the prosecution wanted to rely had been produced and copies of the same had been given to the accused as seen from the order of committal. The materials produced were adequate to make out a prima facie case against the accused. There is no risk of easy discharge under Section 227 of the Code of Criminal Procedure. The accused cannot complain that he is prejudiced due to dearth of materials for a fair and adequate defence. Virtually, he had been placed in the same advantageous position as the accused in a police charge-case. 15. In my view, the Full Bench decision does not apply to a complaint laid by an authorised officer under the Act on the basis of materials which were collected during investigation/enquiry into the offence. The Full Bench decision must be understood in the context in which it was rendered and held applicable only to private complaint cases and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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