The State vs Shakeel Ahmad

Bilal Nazki, J.—A charge sheet was filed against the respondent before Special Judge (Sessions Judge) Kathua on the basis of an FIR No.

136/1993 registered with P/S Billawar. The charge sheet was filed on 22-12-1993 u/s 8/20 and 29 Narcotic Drugs and Psychotropic Substances

Act. The learned Special Judge dismissed the case and discharged the accused. The order was passed by him on 31-3-1994. It has been

challenged by way of this revision. The Special Judge while dealing with the matter was of the view :

The only most important point of seminal and forensic importance, raised by the learned defence counsel is that the aforesaid search and seizure

has been made by two constables Raghbir Singh and Parshotam Singh, whereas the investigation has been made by Shiv Lal Head Constable and

all the three are unauthorised persons to effect seizure and to investigate the case as per the provisions of Section 42 of the NDPS Act and as

such, this Special Court created for the trial of the offence under Sections 820 and 29 N.D.P.S. Act cannot take cognizance.

The revision has been filed on the ground that since the State Government has issued a Notification bearing No. : 525 of 1986 dated 14-8-

1986, the challan filed before the Special Judge was competent. The said Notification reads, as under:

SRO 525 - In exercise of the powers conferred by Section 42, of the Narcotic Drugs and Psycho-tropic Substances Act, 1985, the Government

of Jammu and Kashmir hereby empower all officers superior in rank to Constable of regular executive police, CID, Crime and Railways of Jammu

and Kashmir for purposes of the said Section of the Act, if they have reason to believe from personal knowledge or information given by any

person and taken down in writing that any Narcotic Drugs, Psycho-tropic substance in respect of which an offence punishable under Chapter IV

of the said Act, 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, place in the State of J and K: -

(a) to enter into and search any such building, conveyance or Place

(b) in case of resistance to break-open any door or remove and any obstacle to such entry;

(c) to seize such Drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he

has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish

evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and

(d) to detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under

Chapter IV of the said Act relating to such Drug or substance;

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the

concealment of evidence or facility for escape of an offence, he may enter and search building, conveyance place at any time between sun set and

sun rise alter recording the grounds on his belief.

By order of the Governor of Jammu and Kashmir.

Sd/- (J.A. Khan)

Commr./Secretary to Government

Finance Department

This Notification makes it clear that the powers conferred u/s 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, can be

exercised by an Officer who is superior in rank to the Constable of Regular Executive Police, CID. Crime etc. etc. It is not disputed, as has been

held by the Special Judge that the search and seizure of the charas had been made by two Constables, namely, Raghbir Singh and Purshotam

Singh, whereas the investigation has been conducted by Shiv Lal Head Constable. Learned counsel for the respondent submitted that in terms of

the provisions of the Code of Criminal Procedure, the investigation could only be conducted by S.H.O. I do not want to go into that controversy,

but it is a fact that the search, seizure and arrest has been made by two Constables, whereas Section 42 of the N.D.P.S. Act, 1985. read with

SRO No. 525, makes it clear that no search, seizure or arrest can be made by an Officer, who is not superior in rank to a Constable. In this view

of the matter, no interference is called for in the order passed by the learned Special Judge (Sessions Judge) Kathua. This revision deserves

dismissal and is dismissed accordingly. The record shall be remitted back to the Court below immediately.