JUDGMENT : L. Rath, J. - The question raised by the learned counsel for the petitioner is of considerable importance. It is his submission that an Assistant Sub-Inspector of Police not authorised under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') to effect arrest, conduct search or make seizure if does perform these acts and lodges the first information report at the police station basing on which a case is registered investigated by the officer-in-charge, and charge sheet is submitted, the cognizance taken by the Sub-Divisional Judicial Magistrate u/s 28 of the Act against the accused on the basis of the charge sheet and submission of the case to the Sessions Judge for trial are liable to be quashed. The Assistant Sub-Inspector of Police was performing patrolling duty on 19 4-1992 in the Brahmanipal weekly market during course of which he suspected the petitioner to be selling contraband Ganja in his show-stall and on coducting a search he seized 380 grams of Ganja in 23 small packets. He arrested the petitioner and finding commission of a cognizable case u/s 20 of the Act on preliminary investigation, sent the first information report drawn up by him to the police station. A case was registered in the police station on the basis of the report and the Officer-in-charge, who is authorised under the Act to do so carried on the investigation, recorded the statements of the seizure witnesses u/s 161 of the Code of Criminal Procedure, 1978 and on completion o1 the investigation, submitted the charge sheet. The learned Sub-Divisional Judicial Magistrate took cognizance on the basis of the charge-sheet u/s 20 of the Act and submitted the file to the Sessions Judge who framed charge against the petitioner under that section on 24-9-1992. It is the submission of Mr. The learned Sub-Divisional Judicial Magistrate took cognizance on the basis of the charge-sheet u/s 20 of the Act and submitted the file to the Sessions Judge who framed charge against the petitioner under that section on 24-9-1992. It is the submission of Mr. Mohapatra, the learned counsel for the petitioner, that Section 42 of the Act makes the provision for the State Government to empower, by general or special order, an officer inter alia of police department above the rank of a Sepoy or a Constable for search, seizure, detention and arrest, but as the Assistant Sub-Inspector of Police was not so empowered, the arrest, detention, search and the seizure made in the case were without Jurisdiction, no action could be taken subsequently on the basis of such illegal exercise of jurisdiction and hence not only the investigation carried on by the Officer-in charge but also the cognizance taken in the case by the Sub-Divisional Judicial Magistrate and the subsequent framing of the charge by the Sessions judge are illegal and without jurisdiction. In support of the submission, the learned counsel has relied upon a number of citations including 34(1992) OJD 13 (Cri. ) (Sk. Saukat and Ors. v. State of Orissa) which directly supports the proposition advanced. I shall come back to the citations after making an analysis of the question. 2. Cognizance of an offence under the Act is taken u/s 36A(1))d) which says that the Special Court may take cognizance of an offence either upon a perusal of police report of the facts constituting an offence or upon a complaint made by an officer of the Central Government or the State Government authorised in that behalf. That provision specifically authorises the Special Court to take cognizance without any commitment being made to it of the case. Though there is some divergence of opinion as was reflected in the Full Bench decision Banka Das, Rambalak Das, Birendra Kumar Behera and Soumitri Behera Vs. That provision specifically authorises the Special Court to take cognizance without any commitment being made to it of the case. Though there is some divergence of opinion as was reflected in the Full Bench decision Banka Das, Rambalak Das, Birendra Kumar Behera and Soumitri Behera Vs. State of Orissa, as to whether the Sessions Court is to function as the Special Court in the absence of notification constituting the Special Court, yet as far as the basis of taking cognizance by the Special Court is concerned, it is either upon a police report or upon a complaint as provided u/s 36-A(1)(d) or even if a commital proceeding is considered necessary, the cognizance is to be taken by the Magistrate u/s 190, Cr PC, upon police report or upon a complaint made by a person other than a police officer or upon an information received from any person or upon his own knowledge. It is the law declared by the Supreme Court since 1964 published in H.N. Rishbud and Inder Singh Vs. The State of Delhi, that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was pointed out that though a police report submitted on the basis of investigation conducted by the police is a material on the basis of which cognizance may be taken, yet it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance; juxtaposing the provisions of Section 190 of the Code of Criminal Procedure, 1893 with those of Sections 193, 195 to 199 of the same Code, it was pointed out that whereas the latter Sections regulated competence of the Court and barred its jurisdiction in certain cases unless the provisions were complied with, yet Section 190 did not so provide and that it was not possible to say that cognizance on an invalid police report was prohibited and was therefore, a nullity. It was further explained, on a logical consequence, that if cognizance is in fact taken on a police report vitiated by breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. In reaching the conclusions reliance was also placed on AIR 1944 73 (Privy Council) and AIR 1950 PC 26 (Lumbhardar Zutshi and Anr. v. The King) The question had arisen for consideration before the Supreme Court on the plea advanced in a case under the Prevention of Corruption Act (Act 2 of 1947) that the investigation having not been conducted by a Deputy Superintendent of Police but by officers of lower rank, the proceedings before the Special Judge were liable to be quashed. 3. The legal position as propounded has been uniformly followed as was noticed by a Division Bench decision of this Court 1990 (I) OLR 424 (Nilambar Sahu v. State of Orissa) taking note of about all the decisions on the question till date. The Court was considering in that case whether a conviction u/s 47(a) of the Bihar and Orissa Excise Act becomes liable to be set aside on the ground of violation of the provisions of Section 74 of that Act. Taking note of decisions since AIR 1955 SC 195 {supra) onwards, it was pointed out that the position of law remains the same, namely, that an illegality in investigation, much less an irregularity, does not vitiate either cognizance taken or the result of the trial unless material injustice to the accused is established. One of the decisions relied upon was Radhakishan Vs. State of U.P., wherein it was observed that it may be that where the provisions of Sections 193 and 195 of the Code of Criminal Procedure, 1898 are controverted, the search could be registered by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences, no further consequence ensues. 4. This view of the law has been taken since cognizance taken u/s 190(1) PC is not necessarily based upon a police report and taking cognizance upon an invalid police report is also not prohibited under the section. In the case of H. R. Rishbud (supra), the Apex Court pointed out that an invalid report may still fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance taken upon such a report is only in the nature of a proceeding antecedent to the trial and was curable u/s 537 CPC. In the case of H. R. Rishbud (supra), the Apex Court pointed out that an invalid report may still fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance taken upon such a report is only in the nature of a proceeding antecedent to the trial and was curable u/s 537 CPC. 1898 corresponding to Section 465 of the present Code. Obviously, when the Supreme Court said about the police report being invalid what was meant as is also explicit from the later observation in para-9 of the judgment, was that the report was vitiated by breach of the mandatory provisions relating to investigation. The Court hence observed, on taking cognizance upon the report was itself not prohibited u/s 190(1), that there can be no doubt that the result of the trial which follows the taking of such cognizance cannot be set aside unless the illegality in the investigation can be shown to have caused miscarriage of justice. Having reached such conclusions, the Supreme Court pointed out that even so the invalidity of investigation is not to be completely ignored by the Courts during the trial and if the breach of any mandatory provision is brought to the notice of the Court at sufficiently early stage, it would, while not declining cognizance, have to take necessary steps to get the illegality cured and defect rectified by ordering such re-investigation as the circumstances of each individual case may call for. In taking the view, the Court also said that the Special Judge for the purpose of the procedure of the trial is virtually in the position of a Magistrate trying a warrant case. 5. In this background of the law, it has to be seen whether, so far as the present Act is concerned the law is different. 6. Section 26-A of the Act makes the provision in Clause (a) of Sub-section (1) that the offences under the Act are triable only by the Special Court and under Clause (d) provides that the Special Court may take cognizance of an offence under the Act upon perusal of the police report of the facts constituting the offence or upon a complaint made by an authorised officer of the State or the Central Government, without the accused being committed to it for trial. Section 36-C makes the provisions of the Cr PC applicable to ail proceedings before the Special Court which for the purpose, is to be deemed to be a Court of Session. It is hence clear that the Special Court is both a Sessions Court and an original Court empowered to take cognizance without any commitment being made to it. So far as it is an original Court, the powers of a Magistrate under the Code are not denied to it and hence while it is competent to take cognizance even upon a report of the police which had carried out some part of the investigation in breach of the mandatory provisions of law, yet can direct, if the complaint is made to it at sufficiently early stage, to take necessary steps to get the illegality cured and the defect rectified by ordering such re-investigation as the circumstances may call for with regard to the case. Besides, apart from the fact that taking cognizance upon such a report is not prohibited under the law, it would at the worst be only an error in the proceeding curable u/s 465 of the present Code. 7. The provisions of Section 36-A(1)(d) are only enabling in nature and while empowering the Special Court to take cognizance directly, does not exclude the applicability of the Code to proceedings before it, a position which is expressly recognised u/s 36-C. Such a provision being an enabling one in nature was discussed with relation to the similar provision of Section 12-AA(1)(e) of the Essential Commodities (Special Provisions) Act, 1991 in 1990 (II) OLR 350 (M. Surya Rao v. State of Orissa). Hence, while trial under the Act is to be exclusively by the Special Court, yet the provision of taking cognizance of offences under the Act by the Magistrate u/s 190 (1) is not done away with, but the trial of the offences having been specifically entrusted to the care of the Special Court which is deemed to be a Court of Session, the Magistrate if takes cognizance can only act as the committal Court and at the conclusion of the inquiry by him after taking cognizance has to commit the case to the Special Court. But before such step is taken, the Magistrate is not prohibited to take cognizance of the offence even upon a police report proceeding upon a defective investigation. But before such step is taken, the Magistrate is not prohibited to take cognizance of the offence even upon a police report proceeding upon a defective investigation. But if the complaint is made before it at sufficiently early stage, he may direct taking of necessary steps to get the illegality cured. 8. The position hence charges that where cognizance is taken by the Special Court under Sec. 36-A (1) (d) or by the Magistrate u/s 190 (1) Cr P C on an invalid police report, the cognizance does not ipso facto become vitiated. 9. In the present case, cognizance was taken by the learned S.D.J.M. and the papers were submitted to the Sessions Court evidently acting u/s 209, Cr P C. The cognizance hence must be taken to have bean taken by the S.D.J M. in exercise of the powers u/s 190 (1) Cr P C. The report submitted by the police in the case before the Magistrate was by the officer-in-charge who had taken up investigation on the materials placed before him by the Assistant Sub-Inspector of Police and there is no dispute, as has been submitted by the learned Addl. Standing Counsel, that the officer-in-charge is a person authorised u/s 42 of the Act to carry on all aspects of the investigation. Hence, apart from the lack of any illegality on the part of the Magistrate to have taken cognizance as discussed above, even on the factual aspect it has to be held that the submission of the learned counsel for the petitioner has no substance. 10. Now the decisions cited by the learned counsel for the petitioner may be noticed : Delhi Administration Vs. Ram Singh, arises out of a charge-sheet submitted under the provisions of the Suppression of Immoral Traffic in Women and Girls Act. The learned Magistrate before whom the charge-sheet was filed quashed it holding that it was the special police officer alone who was competent to investigate the case and the Sub-Inspector of Police who had investigated could not have done so. The view taken by the Magistrate was confirmed both by the High Court and the Supreme Court pointing out that under the scheme of the Act only the special police officer and his assistant police officers were competent to investigate under the Act and the police officers not specially empowered or special police officers were not to investigate. The view taken by the Magistrate was confirmed both by the High Court and the Supreme Court pointing out that under the scheme of the Act only the special police officer and his assistant police officers were competent to investigate under the Act and the police officers not specially empowered or special police officers were not to investigate. The question before the Supreme Court in the case hence was not one of invalidating the cognizance or trial based upon an invalid police report. The decision does not help the petitioner-- K.L. Subbayya Vs. State of Karnataka, no doubt helps the petitioner being to the effect that a search conducted by an Inspector In violation of the statutory requirement of regarding the grounds on the basis of which he had a reasonable belief that an offence under the Mysore; Excise Act (21 of 1966) was being committed was without Jurisdiction, and that as a logical corollary a conviction u/s 34 of that Act was vitiated. The decision however was noticed in 1990 (1)OLR 424, (Nilambar v. State) wherein the fact that contrary view had not been taken in Bai Radha Vs. The State of Gujarat, by a larger Bench was noticed. Even AIR 963 SC 822 (Radha Kishan v. State of Uttar Pradesh) was a decision of a larger Bench taking a contrary view but had not been noticed in K.L. Subhayya's case .It was observed in the Division Bench case 1990 (1) OLR 424 (supra) that the view expressed in K.L. Subhayya's case cannot outweigh what had been stated in that regard in the larger Bench decision. 59 (1984) CLT 201 (Krushna Chandra Behera v. State) and 60(1986) CLT 610 (Kasinath, Behera v. The State of Orissa) followed K.L. Subbayya Vs. State of Karnataka, but were held not have been correctly decided in 1990 (1) OLR 424. Shakti Kumar Agrawala Vs. Stata of Orissa, was a case under the Prevention of Food Adulteration Act in which the prosecution was held liable to fail inasmuch as the person purporting to act as Food Inspector had no authority to take sample of food and consequently the conviction was set aside. The supreme Court as noticed earlier. Shakti Kumar Agrawala Vs. Stata of Orissa, was a case under the Prevention of Food Adulteration Act in which the prosecution was held liable to fail inasmuch as the person purporting to act as Food Inspector had no authority to take sample of food and consequently the conviction was set aside. The supreme Court as noticed earlier. 34 (1992) OJD(Cri) 13 (S K. Sukant v. State of Orissa) was a case directly arising out of the present Act and is one on which such stress has been laid by the learned counsel for the petitioner. In the case taking of the cognizence was challenged as having been based upon a police report, the investigation in respect of which, and the arrest of accused, had been done by officers who had not been empowered to do so. The learned single Judge agreed with the contention advanced on behalf of the petitioner and exercising the power u/s 482, Cr PC, quashed the cognizance. In reaching the conclusion, reliance was placed on three decisions of the Rajasthan High Court. The judgment however did not notice the decisions of the Supreme Court as discussed earlier on identical questions even though arising under different Acts. Hence, in view of such decision of the Apex Court as also of the Division Bench of this Court in 1990 (I) OL.R 424, it must be held that the decision in 34(1992) OJD 13 was rendered without noticing the clinching decisions of the Supreme Court and this Court and hence must be held to be per inquiriam. 11. In the result, the petition has no merit and hence is dismissed. Final Result : Dismissed