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TMI Blog1987 (10) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... sengers getting down from Ajmer-Khandva coach. He noticed one man who had wrapped bottle green cloths getting down with a rexine bag in his hand. After seeing on the either side he started moving on the back side of the train. Suspecting his movements Amanulla Khan asked his name and address on which he became nervous. He told his name as Nand Lal son of Ratiram by caste Dhakar, resident of Raoti, police station Begun, District Chittor. Some railway employees who were around were called by Amanulla and asked the accused about the contents of the bag on which he said that besides some domestic goods there is opium. On demand he could not produce the permit, therefore, along with both the railway employees who were taken as motbirs, namely, Jagdish Prasad and Ram Swaroop, he was taken to the police station and the aforesaid report was taken own in police station. After taking down this in Rojnamcha and recording the FIR police proceedings were taken and the bag was got opened wherein a dirty white male Dhoti was found, below it was ground-nut then there was a black rexine bag which contained some wet material wrapped in polythene. When removed and tested and smelt it appeared like op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged the conviction on several grounds. He has also raised a legal issue to the effect that the investigation was unauthorised no charge-sheet could be submitted against him in as much as Shri Amanulla Khan was not expressly or impliedly authorised to exercise the powers Under Section 42 of the Act. It is contended by him that in pursuance of Section 42 of the Act no police officer was authorised and had power of entry, search seizure and arrest any person under the Act. The powers were conferred on 16-10-1986 by a notification and that too only on all Inspectors of police and Sub-Inspectors of police who were working as Station House Officers and thus earlier no police officer much less the head constable Amanulla Khan had any authority under the law to apprehend the accused-appellant, It is submitted that even assuming that since the documents were prepared by Shri Ram Chandra Station House Officer, G.R.P. Police State, Ajmer even then he too on 21-11-1985 was not authorised, since till then he had no jurisdiction. He should have handed over the matter for investigation to the authorities specified in the Act. It has further been submitted that even on 15-7-1986, the date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esence he asked the person as to what was in the bag. Accused appellant got disturbed and was asked to show the bag. On search of this bag opium was found in polythene. Since the person was not having licence and had given out his name Nandlal he was taken to the police station and the report was lodged. The report was taken down by the Station House Officer which is Ex. P. 1 and bears his signatures at A to B. He thereafter mentioned about preparation of the documents and proved the exhibits. In cross examination he stated that he saw the accused for the first time when he was getting down from Ajmer-Khandva coach. He however, did not remember the coach. He stated that the train arrived at 2.20 or 2.25 a.m. on that day, but after referring to the documents he stated that it was 2.45 a.m. He stated that he had searched the bag on the platform itself in presence of Jagdish Prasad and Ram Swaroop. The witness was confronted with the colour of the Dhoti mentioned in various documents and he answered that he is a middle fail. He stated that he took 10 minutes after search to go to the police station where he found Ram Chandra Calla, S.H.O. but does not remember the name of the Head Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He stated that he saw the accused for the first time in G.R.P., police station. He further stated that he signed the documents because the police people asked him to sign and he had also signed the blank papers. 10. PW 4 Bhawani Singh is Head Constable at Police Station, G.R.P., Ajmer. He stated that he was posted as head mohrir at Malkhana where he had deposited the samples marked A-l and A-2 on 21-11-1985. They were handed over on 23-11-1985 to one Chhitar Singh and from and upto that time the samples remained the same sealed condition in which they were given to him. 11. Chhitar Singh is PW 5 who stated that on 23-11-1985 a sealed packet was given to him by Bhawani Singh which he handed over in the same condition at Forensic Science Laboratory. He admitted in his cross-examination that the sealed packet was given to him on 23rd November morning at 10.00 a.m., then he brought it to Jaipur. He did not remember that by which train he came to Jaipur, but it was about 8.00 p.m. He stated that on 23rd night he stayed at the G.R.P. Jaipur. 24th November, 1985 was a holiday and he deposited it in the laboratory on 25th November, 1985. He stated that when he reached Jaipur he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Narcotics, Customs, Revenue Intelligence or any other department of Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable of the Revenue, Drugs, Control, Excise, Police or any other department) of a State Government as is empowered in this behalf by general or special order of the State Government. If he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic in substance in respect of which an offence punishable u/Ch. IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle of such entity; (c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or convey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hand over the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned. 16. Earlier to it notification dated November 14, 1985 was in force which is S.O. 822-E which reads as under: S.O. 822-E-In exercise of powers conferred by Sub-section (1) of Section 42 and Section 67 of the Act, the Central Government hereby empowers the officers of and above the rank of Sub-Inspector in the department of Narcotics and above the rank of Inspector in departments of Central Excise, Customs, Revenue, Intelligence and Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorises said officers to exercise the powers conferred upon them under Section 67. 17. A perusal of the aforesaid notification shows that according to the provisions of the Act powers of investigation particularly detention, search, arrest and seizure were given according to Sections 42 43 of the Act of the officers of the rank of Sub-Inspectors and above the rank of Sub-Inspectors and the department specified were Central Excise, Customs, Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the legislature in its own wisdom excluded any investigation or search by a constable it cannot be appreciated that Amanulla did it rightly. 19. The learned Public Prosecutor submitted that Amanulla Khan had only caught the accused and he had not even searched and seized the opium but he took the accused to the police station and, therefore, when all the documents have been prepared by the Sub-Inspector of police it should be taken that it was Sub-Inspector of police who had seized and searched the opium and arrested the accused. Amanulla Khan, PW 1, in his cross examination has admitted that he had carried on the search of the bag Article 1 on the platform itself in presence of Jagdish Prasad and Ram Swaroop and it was thereafter that having found opium therein he took the accused to the G.R.P. Police Station. If quoted in his own words he states. 20. The witness has further admitted that he reached the police station after 10 minutes of his search. He however, admitted that documents were prepared by the Sub Inspector. As I have mentioned above while quoting the statement of the witness that both Jagdish Prasad and Ram Swaroop have been declared hostile by the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure applicable under the Foreign Exchange Regulation Act was under consideration and their Lordships after considering the entire law held that the Act is a Special Act and it provides under Section 19A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement and, therefore, provisions of the Code of Criminal Procedure will not apply to such investigation by him. Punjab and Haryana High Court in State of Punjab v. Kripal Singh (supra) held that under Section 20 of the Prevention of Food Adulteration Act it is only the specified authority which can institute a complaint else the prosecution is a nullity. A similar view has been taken in Raj Kumar v. State of Punjab (supra) where placing reliance on a judgment in criminal Appeal No. 400/1986 (in S.L.P. No. 701/1986), A.K. Roy and Ors. v. State of Punjab and Ors. it was held that the Director, Health and Family, Punjab, was not competent to further delegate its powers to Food Inspector and the complaint was quashed for want of proper sanction as it was filed by a person who was held not to be competent that he had no authority to do so. 21. I have caref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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