State of Kerala vs Thomas

K.P. Balanarayana Marar, J.—Appeal is against acquittal. State is the Appellant.

Respondent was charged by Excise Inspector, Mananthavady for offence punishable u/s 55(a) of the Kerala Abkari Act. He is alleged to have possessed one kilogram of ganja which was detected by the Preventive Officer and party on 9th February 1987. On analysis the article was found to be ganja. The Magistrate''s Court found the accused guilty, convicted him and sentenced him to undergo imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for Anr. period of one month. On appeal Sessions Judge, Wayanad set aside the conviction and sentence and acquitted the accused. Hence this appeal after obtaining special leave.

Heard Public Prosecutor and counsel for Respondent.

The order of acquittal is seen entered mainly for two reasons. The court below found that the offence comes under the provisions of the Narcotic Drugs and Psychotropic Substances Act (N.D.P.S. Act for short) and that the Magistrate should have committed the case to the Sessions. The other reason mentioned by the Sessions Judge is the incompetency of the Preventive Officer to detect an offence under the Act.

Challenging the order of acquittal learned Public Prosecutor contended that the Kerala Abkari Act has not been repealed by the N.D.P.S. Act and the Magistrate could have therefore tried the accused for the offence u/s 55(a) of the Abkari Act. Attention is drawn to Section 81 of the N.D.P.S. Act which reads:

Saving of State and special laws.-Nothing in this Act or in the rules made there under shall affect the validity of any Provincial Act or an Act of any State Legislature for the time being in force, or of any rule made there under which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within India.

Meeting this contention Sri Padmanabhan, learned Counsel for Respondent points out that the Abkari Act has to be deemed to have been repealed except the provisions specifically saved u/s 81 of the N.D.P.S. Act. In order to appreciate the contentions advanced on both sides the principles to be applied in the matter of interpretation of saving clauses are to be understood.

A saving clause is generally inserted when a statute is repealed and re-enacted. The effect of such saving is that the repealed statute remains in force regarding the rights which the party had previously. It does not create any new right in his favor. In other words, a saving clause is introduced into the repealing Act in order to safeguard the existing rights which but for such saving would be lost. In construing such a clause it has to be seen whether the repealing Act manifests an intention to destroy the rights and liabilities under the repealed enactment.

The principle has been stated in Craies on Statute Law, Seventh Edition on page 220 thus:

The true principle, say the editors of Kent''s Commentaries undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting clause, Saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy.

Section 81 of the N.D.P.S. Act does not expressly repeal the Abkari Act, but only saves certain provisions contained therein. The intention is therefore to preserve only some existing rule or right. In other words, the saving is only qualified or conditional. In the absence of inconsistency between the two acts the provisions contained in the Abkari Act are to be treated as continuing notwithstanding the repeal. By the enactment of the N.D.P.S. Act there has thus been an implied repeal of the provisions in the Abkari Act relating to cultivation of cannabis plant or consumption of or traffic in any narcotic drug or psychotropic substance within India except the provisions saved u/s 81 of the N.D.P.S. Act.

The provisions of the Abkari Act saved u/s 81 of the N.D.P.S. Act are those relating to (i) imposition of any restriction or provision for a punishment not imposed by or provided for under the Narcotic Act, and (ii) imposition of a restriction or provision for a punishment greater in degree than a corresponding restriction imposed by or corresponding punishment provided for by or under the N.D.P.S. Act for the cultivation of cannabis plant or consumption or traffic in any narcotic drug or psychotropic substance within India.

The question to be considered in this appeal is whether Section 55(a) of the Abkari Act imposing punishment for possession of ganja, an intoxicating drug is saved u/s 81 of the N.D.P.S. Act. Since provision for punishment of possession of ganja has been made in the N.D.P.S. Act the provision contained in Section 55(a) of the Abkari Act relating to possession of ganja is not saved u/s 81 of the N.D.P.S. Act. That Act was intended to amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, and for matters connected therewith. To the extent to which any intoxicating drug comes within the definition of narcotic drug or psychotropic substance contained in the N.D.P.S. Act the provision in Section 55(a) of the Abkari Act stood repealed by Section 81 of the N.D.P.S. Act. Moreover, the further saving is only regarding a provision for punishment greater in degree than a corresponding punishment provided under the N.D.P.S. Act. The punishment for the offences u/s 55 of the Abkari Act is far less than the punishment provided under the N.D.P.S. Act. In any view of the matter the provisions contained in Section 55 of the Abkari Act relating to an intoxicating drug are not therefore saved u/s 81 of the N.D.P.S. Act. It necessarily follows that the provisions in Section 55 of the Abkari Act relating to a narcotic drug had been impliedly repealed by the N.D.P.S. Act. The Magistrate could not have therefore taken cognizance of the offence u/s 55(a) of the Abkari Act for possessing ganja, a narcotic drug coming within the scope of N.D.P.S. Act. The court below was therefore right in holding that the offence is one exclusively tribal by a special court constituted under that Act.

When the Magistrate is found to have no jurisdiction to take cognizance of the offence the question whether the detecting officer is an authorized officer under the N.D.P.S. Act does not arise for consideration. As early as 7th November 1985 notification has been issued empowering Officers of the Police Department of and above the rank of Sub Inspector of Police to exercise the powers provided in Section 42 of the N.D.P.S. Act. Another notification is seen to have been issued on the same date investing powers on the Officers of the Excise Department not below the rank of an Excise Inspector with the powers of an officer-in-charge of a police station for the investigation of offences under the N.D.P.S. Act. In the present case the offence was detected on 9th February 1987 by an Excise Preventive Officer who is junior in rank to that of Excise Inspector. He was therefore not authorized to investigate into the offence.

The competency of the detecting officer was considered by the court below in order to see whether the matter should be sent back to the Magistrate for the purpose of committal to the special court. Even if a charge is framed under the relevant provision of the Narcotics Act the same will be unsustainable on account of the incompetency of the detecting officer. No error has been committed by the Sessions Judge in holding so.

For the aforesaid reasons the order of acquittal is sustained and the appeal is dismissed.