State of Rajasthan v. Kalu Ram — 1998 DIGILAW 760 (RAJ)

Honble SINGH, J.–Heard the learned Public Prosecutor. (2). This petition u/S. 482 Cr.P.C. is directed against the order dated 3rd March,89 passed by the learned District and Sessions Judge, Balotra in session case no.33/88 State vs. Kalu Ram. By the impugned order the learned District Judge, Balotra while purporting to act as a Special Judge under the Narcotic Drugs and Psychotrophic Substances Act (for short NDPS Act) discharged the accused-non-petitioner Kalu Ram of the charges u/S. 17 and 18 of the NDPS Act on the ground that the Deputy Superintendent of Police, who conducted the search of the accused Kalu Ram was not empowered to conduct the search. (3). The learned Public Prosecutor has submitted that the view taken by the learned District Judge, Balotra is erroneous in view of Section 36 Cr.P.C. which empowers the superior officers to exercise the powers of the Officer Incharge of the Police Station and in view of the fact that the officer Incharge of the police station, Balotra was empowered to conduct search under the NDPS Act, the Dy.S.P., Balotra must be said to have been empowered to conduct the search of the accu- sed-non- petitioner. (4). The facts of the case so far as they are relevant for the disposal of this petition may be summarized as below :- On 19th March,88 at 8 a.m. Joga Ram F.C. No.669, posted at Police Station, Balotra was on duty at fair being held at Telwara. He received information from a motbir at 7 a.m. that one Kalu Ram Vishnoi, who was putting on a white turban and was carrying a small bag had alighted from the bus, which had reached from Balotra and he was carrying opium in his bag. On receiving this information ,Joga Ram F.C., went to the Bus Stand , Balotra and saw the accused Kalu Ram standing there. On making inquiry from the accused, Joga Ram came to know that his name was Kalu Ram. Joga Ram brought Kalu Ram to the Police Station, Balotra. On know that the Station House Officer of the police station, Balotra had gone to Barmer in connection with some official work. Since the Station House Officer of the police Station was not available, Joga Ram produced the accused Kalu Ram before the Dy.S.P.,Balotra. In presence of the motbirs, the Dy.S.P. conducted a search of the accused Kalu Ram. On know that the Station House Officer of the police station, Balotra had gone to Barmer in connection with some official work. Since the Station House Officer of the police Station was not available, Joga Ram produced the accused Kalu Ram before the Dy.S.P.,Balotra. In presence of the motbirs, the Dy.S.P. conducted a search of the accused Kalu Ram. On opening the bag, which Kalu Ram was carrying with him , opium was recovered. On weighing the opium recovered from the accused, it was found to be of 930 gms, in weight. Samples were taken from the opium recovered from the accused for the purpose of analysis. The samples as well as the remaining portion of the opium were sealed then and there and FIR No.56 dated 19.3.88 was registered at police station, Balotra. The Dy.S.P., Balotra lodged the FIR at the police station and prepared the recovery memo dated 19.3.88. He recorded the Statements of Joga Ram, Jetha Ram, Basta Ram, Keerta Ram, Paras Ram and Toga Ram during the investigation. One of the samples was sent to Forensic Science Laboratory, Jaipur for analysis. The report of analysis disclosed that the sample was found to be of opium containing 1.18% morphine. After conducting investigation, the SHO of the police station , Balotra has submitted the charge-sheet in the court of Addi- tional Chief Judicial Magistrate, Balotra on 29th July,1988. The Additional Chief Judicial Magistrate, Balotra committed the case to the court of District Judge, Balotra on 18th August,88. The learned District Judge heard the arguments on charge on 28th February,89 and vide order dated 3rd March,89 he discharged the accused-non- petitioner Kalu Ram of the charges under Sections 17 and 18 of the NDPS Act on the ground that the Dy.S.P., Balotra was not legally competent to conduct the search of the accused, nor he was competent to conduct the investigation in the case. Feeling aggrieved by the order dated 3rd March,89 passed by the learned District Judge, the State has filed this petition. (5). The only point to be decided in this petition is whether the Dy. S.P. was empowered to conduct the search of the accused-non- petitioner u/S. 42 read with Sec. 50 of the N.D.P.S. Act, 1985, by virtue of the provisions contained in Section 36 Cr.P.C.1973. (6). (5). The only point to be decided in this petition is whether the Dy. S.P. was empowered to conduct the search of the accused-non- petitioner u/S. 42 read with Sec. 50 of the N.D.P.S. Act, 1985, by virtue of the provisions contained in Section 36 Cr.P.C.1973. (6). The learned District Judge, Balotra has cited following decisions in his order:- (1) Hanuman vs. State of Rajasthan (1) (decided on 15th December,1987 by Honble Mr. Justice K.S.Lodha); (2) Nand Lal vs. State of Rajasthan (2) (decided by Honble Mr. Justice V.S.Dave); (3) Umrao vs. State of Rajasthan (3). (decided by Honble Mr. Justice Farooq Hasan ); (4) Hardeva vs. State of Rajasthan (4) (decided by Honble Mr. Justice D.L.Metha); (5) Roland Markas Gunthar vs. State of Rajasthan (5) (decided by Honble Mr. Justice D.L.Metha); (6) Gopal vs. State of Rajasthan (6) (decided by Honble Mr. Justice G.K.Sharma); (7) Veerma vs. State of Rajasthan (7) (decided on 17.10.88 by Honble Mr. Justice G.K.Sharma); (8) Sattar Mohammed vs. State (8) (decided by Honble Mr. Justice G.K. Sharma); (9) Raju & Basant vs. State (9) ( decided on 19.10.88 by Honble Mr. Justice G.K.Sharma). (7). The learned District Judge has also cited following unreported orders of the Rajasthan High Court:- (1) State vs. Hajari (10) (decided on 14.4.88) (2) State vs. Chaina Ram (11) (decided on 14.4.88) (3) State vs. Jagmal (12) (decided on 29.4.88) (4) State vs. Shivji (13) (decided on 29.7.88) (5) State vs Jagram (14) (decidec o n 29.7.88) (8). The learned District Judge has not discussed the decisions given in the above mentioned 14 cases cited by him. He has neither given the facts of the cases, nor pointed out the points of law decided in those cases,nor he has cared to give the decisions given in the cases and much less the reasons for the decisions. (9). Since an officer of the rank of District and Sessions Judge has cited 14 cases of this Court in support of his order and omitted to point out what was the ratio decendi of those cases, I deemed it fit to call the files of the unreported cases from the registry in order to ascertain whether the decisions given in those cases have any bearing on the question of law arisen before the learned District Judge. I have also perused the decision of the 9 cases which have been reported in the Law Journals . After carefully going through the decisions given in the 14 cases cited by the learned District Judge, I am pained to observe that not even in a single case, out of 14 cases cited by the learned District Judge, there is any observation by this Court touching the question of law, which the learned District Judge had to decide. (10). It would be proper if a brief resume of all the decisions is given to show that none of the 14 cases cited by the learned District Judge have any bearing on the question of law arising in this petition. REPORTED CASES CITED BY THE LEARNED District AND Sessions Judge: (11). Hanuman vs. State of Rajasthan (supra):- A perusal of the judgment given in this case shows that the appeal filed by the accused Hanuman was allowed by this Court on the ground that there was delay in sending a copy of the F.I.R. to the Court and the delay was not satisfactorily explained and there were discrepancies in the evidence of the police officers and the defence story appeared to be probable. There is nothing in this judgment to show that the powers of the Dy.S.P. to conduct search and seizure as well as investigation in respect of offences punishable under the NDPS Act 1985 was considered by this court. (12). Nandlal vs. State of Rajasthan (supra):- In this case the search was conducted on 23rd November,85, by the police officer at the police station. Since the Notification No. S.O. 115 dated 16.10.86 had not been issued by the State Government by that time ,this court held that the police officer, who conducted the search of the accused and investigation the case was not competent to conduct search of the accused as he was not empowered to do so u/S. 42 of the NDPS Act and the question whether the Dy.S.P. can conduct the search u/S. 42 of the NDPS Act was neither considered nor decided. (13). Umrao vs. State of Rajasthan (supra):- In this case the search was conducted on 1st August,86 by the Station House Officer of the police station, Khandela. Up to that date, the Notification no. S.O.115 dated 16th October,86 had not been issued. (13). Umrao vs. State of Rajasthan (supra):- In this case the search was conducted on 1st August,86 by the Station House Officer of the police station, Khandela. Up to that date, the Notification no. S.O.115 dated 16th October,86 had not been issued. Therefore, this Court held that the SHO of the police station was not legally empowered to conduit the search of the accused u/S. 42 of the NDPS Act. The question whether the Dy.S.P. can conduct the search u/S. 42 of the NDPS Act did not arise for consideration. (14). Hardeva vs. State of Rajasthan (supra):- In this case the search was conducted on 26th November,85. On that day, the A.S.I. Bajrang Lal, who conducted search of the accused was not empowered by the State Government u/S. 42 of the NDPS Act to conduct the search. Honble Mr. Justice D.L.Mehta held that the conviction of the accused appellant for committing an offence u/Sec. 42 of the NDPS Act was not vitiated on the ground that the A.S.I. who conducted the search was not empowered u/S. 42 of the NDPS act to conduct the search. (15). Roland Markas Gunthar vs. State of Rajasthan (supra):- A careful perusal of the judgment shows that the story about search and seizure was found to be suspicious and the accused appellant, who was convicted u/S. 20(b) of the NDPS Act was acquitted . The question whether the police officer, who conducted the search was or was not competent to search , did not arise for decision in this case. In Gopal vs. State of Rajasthan (supra):- In this case the question whether Dy. S.P. can conduct search under Sec. 42 of the NDPS Act did not arise. (16). Veerma vs. State of Rajasthan (supra):- A perusal of the judgment shows that the appeal was allowed by this Court as there was no evidence to show that the seals on the sample remained intact before it reached F.S.L. for examination. The provisions of Section 50 and 57 of the NDPS Act had also not been complied with. (16). Veerma vs. State of Rajasthan (supra):- A perusal of the judgment shows that the appeal was allowed by this Court as there was no evidence to show that the seals on the sample remained intact before it reached F.S.L. for examination. The provisions of Section 50 and 57 of the NDPS Act had also not been complied with. The question relating to the competence of the police officer to conduct search did not arise in the case as the search was conducted by the SHO of the police station, Raipur on 26th June,87, i.e. after the issue of the Notification dated 16.10.86, whereby the Sub Inspectors and Inspectors, posted as officer incharge of the police station have been empowered to con- ducted search u/S. 42 of the NDPS Act. (17). Sattar Mohammed vs. State (supra):- In this case ,the appeal was allowed on the ground that the report of the FSL was admitted in evidence and marked as Ex.1 at the time of final argument in the case without giving an opportunity to the accused to challenge the report of the FSL. The question whether the police officer, who conducted the search was or was not empowered to conduct the search was not raised before this court. (18). Raju @ Basant vs. State (supra):- In this case the search was conducted on 16.1.88 by the Sub Inspector Gopal Ramawat posted at Kotwali, Jaipur. It was urged on behalf of the accused appellant that Shri Gopal Ramawat, who conducted the search and seized the opium , had no jurisdiction to arrest the accused ,seize the opium and investigate the matter, as he was not empowered u/Sec. 42 of the NDPS Act to exercise the powers of search and seizure. This Court held that Gopal Ramawat was not empowered to conduct search u/Sec. 42 of the NDPS Act and the appeal was allowed. The ques- tion whether the Dy.S.P. can exercise the powers u/S. 42 of the NDPS Act did not arise for decision. (19). Unreported Cases Cited By The Learned District AND Sessions Judge: (1) State vs. Hajari (supra):- A perusal of the order dated 14th April,88 shows that the application for leave to appeal filed by the State was rejected . The ques- tion whether the Dy.S.P. can exercise the powers u/S. 42 of the NDPS Act did not arise for decision. (19). Unreported Cases Cited By The Learned District AND Sessions Judge: (1) State vs. Hajari (supra):- A perusal of the order dated 14th April,88 shows that the application for leave to appeal filed by the State was rejected . A perusal of the judgment dated 10.12.87 passed by the District Judge shows that in that case search was conducted on 14.4.86 and the police officer, who conducted the search was not empowered to conduct the search ,as the Notification dated 16.10.86.had not been issued by that date. (20). State vs. Chaina Ram (supra):- A perusal of the order dated 14.4.88 shows that application for leave to appeal filed by the State was rejected . A perusal of the judgment dated 11.12.87 passed by the District Judge , Balotra shows that search had been conducted on 16.12.86. The argument advanced before the learned District Judge was that the search had been conducted by the Head Constable , who was not empowered to conduct the search and the learned District Judge acquitted the accused on the ground that search had been conducted by the Head Constable , who not competent to conduct the search. (21). State vs. Jagmal (supra):- A perusal of the order dated 29th April ,88 shows that search had been conduc- ted on 1.2.86 by a Head Constable of the police and the accused had been acquitted by the District Judge ,Balotra on the ground that the officer conducting search was not empowered u/S. 42 of the NDPS Act. Since the Head Constable was found to have not been empowered u/S. 42 of the NDPS Act to conduct the search, the application for leave to appeal was rejected . (22). State vs. Shivji (supra):- A perusal of the order dated 29th April,88 shows that the application for leave to appeal filed by the State was rejected. A perusal of the judgment dt. 10.12.87 passed by the District Judge, Balotra shows that by this judgment he has decided three session cases. In the first case, search was conducted on 14.4.86. In the Sec- ond case, search was conducted on 14.4.86 and in the third case search had been conducted on 27th August, 86. A perusal of the judgment dt. 10.12.87 passed by the District Judge, Balotra shows that by this judgment he has decided three session cases. In the first case, search was conducted on 14.4.86. In the Sec- ond case, search was conducted on 14.4.86 and in the third case search had been conducted on 27th August, 86. Admittedly, on the dates of search, no police officer was empowered u/S. 42 of the NDPS Act to conduct search. Therefore,the application for leave to appeal was rejected by this Court. (23). State vs. Jagram (supra):- A perusal of the order dated 29th July,88 shows that application to leave filed by the State was rejected. A perusal of the judgment dated 19th February,88 passed by District Judge, shows that search had been conducted on 21st October,88. The District Judge, Balotra acquitted the accused because the evidence produced by the prosecution was found to be insufficient to prove the charge against the accu- sed beyond reasonable doubt. The question whether the police officer was or was not empowered to conduct the search did not arise for decision. (24). In light of above discussion. it is obvious that none of the 14 cases cited by the learned District Judge, Balotra have any bearing on the question whether the Dy.S.P. can exercise the powers u/S. 42 of the NDPS Act by virtue of the provi- sions contained in Sec .36 Cr.P.C. The learned District Judge, should have carefully read the judgments/orders passed by this Court in the cases cited by him and he ought to have pointed what was the ratio decendi of those decisions. For the guidance of the subordinate courts,it must be pointed out that whenever any judgment of the superior court is cited by a subordinate court, the subordinate court must State the facts of the case, the question of law considered by the court, and the decisions of the court alongwith reasons for the decision so that it may be ascertained whether a subordinate court has or has not applied its mind to the judgment /order cited by him. (25). Since none of the 14 judgments/orders cited by the learned District Jud- ge have any bearing on the question arising for decision in this petition, I proceed to decide the question of law arising in this case without obtaining any assistance from the order passed by the District Judge. (26). (25). Since none of the 14 judgments/orders cited by the learned District Jud- ge have any bearing on the question arising for decision in this petition, I proceed to decide the question of law arising in this case without obtaining any assistance from the order passed by the District Judge. (26). The provisions of Section 42 of the NDPS Act have been considered by the Honble Supreme Court in State of Punjab vs. Balbir Singh (15), their Lordships of the Honble Supreme Court observed :- ``Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(2) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (27). In light of the observations of the Honble Supreme Court, it must be said that no officers can exercise the powers u/S. 42 of the NDPS Act unless he is duly empowered u/S. 42 by the concerned Government. It is not necessary to cite cases of the High Court in which a similar view has been taken. (28). So far as the officers of the Police Department are concerned, it is not disputed that the State of Rajasthan has issued the Notification No. F.1(3)/FD./Ex.1/85/1 dated 16.10.86 in the following words :- ``In exercise of the powers conferred by Sec. 42 of the Narcotic Drugs and Psychotrophic Substances Act, 1985(Act No.61 of 1985), the State Government hereby authorise all Inspectors of Police and Sub Ins- pectors of police posted as Station House Officers to exercise the powers mentioned in Sec. 42 of the said Act with immediate effect. Provided that when power is exercised by Police Officer and Police Inspectors of the area concerned, such officers shall immediately hand over the person arrested and article seized to the concerned Police Inspector or Station House Officer of the Police Station concerned. (29). This notification u/S. 42 of the NDPS Act came into force on 16th October,86. It is not disputed that this Notification was in force and continues to be in force on and after the date of search conducted in this case. Under this Noti- fication, the Inspectors and Sub Inspectors posted as Station House Officers of the Police Station are empowered to exercise the powers u/S. 42 of the NDPS Act. The Notification does not purport to confer any powers u/S. 42 of the NDPS Act on any officer other than the Inspectors and Sub Inspectors posted as Officers Incharge of a Police Station. So far as the powers and jurisdiction of the Head Constables and Constables is concerned, the learned Public Prosecutor has not disputed the proposition that the Head Constables and Constables have not been empowered to exercise any power u/S. 42 of the NDPS Act. (30). So far as Police Officer superior in rank to the Inspectors and Sub Inspectors of Police are concerned, the learned Public Prosecutor has submitted that superior officers are empowered u/S. 36 Cr.P.C. to exercise the powers of the Officers Incharge of a Police Station, and therefore, it would not be necessary for the State Government to have expressly empowered the superior officers of the Police Department to exercise the powers u/S. 42 of the NDPS Act. It is further submitted by the learned Public Prosecutor that u/S. 36 Cr.P.C., the officers of the Police, who are superior in rank to the officers Incharge of a Police Station can exercise all the powers of the Officer Incharge of a Police Station and no separate authorisation by the State Government is necessary, in order to enable them to exercise the powers of the Officer Incharge of a Police Station. Section 36 Cr.P.C. reads :- ``36. Powers of superior officers of police - Police Officers superior in rank to an officer Incharge of a Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officers within the limits of his station. (31). Section 36 Cr.P.C. reads :- ``36. Powers of superior officers of police - Police Officers superior in rank to an officer Incharge of a Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officers within the limits of his station. (31). A bare reading of Sec .36 Cr.P.C. shows that Police Officers superior in rank to the Officer Incharge of a Police Station are empowered by this Section to exercise the powers of the Officer Incharge of a Police Station. The provisions of Section 36 Cr.P.C. were considered by the Honble Supreme Court in State of Bihar vs. JAC Saldhana (16), the Honble Supreme Court pointed out that Section 36 con- fers powers of an Officer Incharge of the Police Station, on all Police Officers superior in rank to an Officer Incharge of a police Station. In view of the authoritative pronoucement of the Honble Supreme Court, it must be said that police officers, who are superior in rank to the officer Incharge of the police Station can exercise all the powers of officer Incharge of a Police Station within the local limits of the Police Station. (32). In view of the provisions of Sec.36 Cr.P.C., 1973, it is to be considered whether Notification dated 16.10.86 passed by the State Government u/S. 42 of the NDPS Act confers the powers u/S. 42 of the NDPS Act on "the Officers Incharge of the Police Station, not below the rank of Inspectors and Sub Inspectors or this Noti- fication confers the powers on all ``Inspectors/Sub Inspectors of Police, subject to the condition that they are posted as Officer Incharge of the Police Station. The learned Public Prosecutor has submitted that the Notification dt. 16.10.86 cannot be so interpreted as to mean that the powers u/S. 42 of the NDPS Act have been conferred on any police officer other than the Officer Incharge of a Police Station, as such notification it self States that the Inspector/Sub Inspector, who is nominated under the Notification to exercise the powers u/S. 42 of the NDPS Act, must be posted as Officer Incharge of the Police Station. (33). (33). The Notification dated 16.10.86 no doubt requires the police officer on whom the powers u/S. 42 of the NDPS Act are intended to be conferred, to satisfy following two conditions :- (1) He/She must be of the rank of Inspector/Sub Inspector; and (2) he/she must be posted as Officer Incharge of a Police Station. (34). The Notification insists on two conditions mentioned above. Which of them is dominant and entitled to precedence is to be ascertained. If it is a second condition, which is more dominant then the first and entitled to precedence, then it will have to be said that in order a police officer may be said to be empowered under the notification dated 16.10.86, he must be an Officer Incharge of the Police Station, which means that the powers under the Notification are conferred not on persons holding the post of Sub Inspector or Inspector, but on the Officer Incharge of the Police Station. On the other hand, if it is held that it is the first condition which is more dominant than the second, then it will have to be said that the powers under the Notification are conferred on the police officers holding the rank of Inspector and Sub Inspector and not on the Officer Incharge of the police Station. (35). Which of the two conditions mentioned above is more dominant, can be easily ascertained from the other provisions of the NDPS Act, which deal with the powers of the investigation of the Police Officers as well as the Officers belonging to other Departments mentioned in Section 42 of the NDPS Act. Section 42 of the NDPS Act provides that the Officers of the various departments of the Central Government and of the State Government, as mentioned in Section 42(1), may be empowered by the Government to conduct search of any building, conve- yance or other enclosed space, subject of course to the condition that they are above the rank of Sepoy or Constable. Section 42 by itself does not require that if a search is conducted outside any building, conveyance or other enclosed space, then there must be authorisation as contemplated by Section 42(1) of the Act. It is Section 50 of the NDPS Act which by implication requires that the officer conduct- ing search of any person must be duly empowered u/S. 42 of the NDPS Act. It is Section 50 of the NDPS Act which by implication requires that the officer conduct- ing search of any person must be duly empowered u/S. 42 of the NDPS Act. So far as Section 43 of the NDPS Act is concerned, this Section does not expressly require that the officer conducting a search of a public place must be duly empowered u/S. 42(1) of the NDPS Act. So far as search of any person or of any building, conveyance or enclosed space as is referred in Section 42(1) of the NDPS Act, is concerned, there is no doubt in it that Section 42 as well as 50 of the NDPS Act require that the Officer conducting search must be an officer duly empowered u/S. 42 of the Act. (36). Section 42 and 50 of the NDPS Act, are in the nature of special law and therefore, the provisions contained there in, must be given effect to in preference to the general provisions contained in the Criminal Procedure Code. It is because of the express provisions in Section 4(2) of the Code of Criminal Procedure, 1973, which provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions,but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The necessary consequence of the special provisions contained in Section 42 and 50 of the NDPS Act is that the general powers of conducting search and seizure, available to a Police Officer under the Code of Criminal Procedure cannot be exercised by the Police Officer in respect of offence committed under the NDPS Act, unless the provisions of Section 42 and 50 of the NDPS Act are complied with. In other words, Section 42 and 50 of the NDPS Act do not deprive the Police Officers of their general powers to arrest, conduct search and seize any incriminating article and to investigate into a cognizable offence, but a condition is imposed that before such gene- ral power under the Code of Criminal Procedure is exercised, there must be empowered as contemplated by Section 42 and 50 of the Act in so far the search of persons and search of building, conveyance and enclosed places are concerned. The fact that empowerment u/S. 42 of the NDPS Act is made necessary for the search and seizure, does not mean that the police officers generally empowered to arrest, conduct search and seize incriminating articles are totally deprived of their powers under the Code of Criminal Procedure, 1973. Merely, because a condition requiring special empowerment u/S. 42 (1) of the Act is imposed, it cannot be said that the Act is imposed, it cannot be said that the Police Officers have been totally deprived of their general powers under the Cr.P.C. (37). Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure, 1973(2 of 1974) shall apply, in so far as they are not inconsistent with the provision of this Act, to all warrants issued and arrests, searches and seizures made under this Act. This shows that the powers of the Police Officers conferred under the Code of Criminal Procedure, 1973 have not been taken away, but in the matter of search and seizure, a special provision is provided in Section 42 of the NDPS Act requiring the empowerment under that Section. (38). Sub Section (3) of Section 52 of the NDPS Act provides that every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Sec.44 shall be forwarded without unnecessary delay to -(a) the officers-in- charge of the nearest Police station, or (b) the Officer empowered under Sec. 53. (39). Sub-section (2) of Section 52-A of the NDPS Act provides that where any narcotic drug or psychotrophic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotrophic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotrophic substance or the packing in which they are packed, country of origin and other particulars as the officers referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotrophic substances in any proceedings under this Act and make an application, to any Magistrate as provided in sub-section (2). (40). (40). Section 53 of the NDPS Act provides that the Central Government, after consultation with the State Government, may by notification published in the official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. (41). It may be noted that there is nothing in Section 53 of the N.D.P.S. Act to suggest that the Officers Incharge of the Police Station,have been deprived of their powers to conduct investigation and submit reports u/S. 173 in respect of the offences punishable under the NDPS Act. (42). Section 55 of the N.D.P.S. Act provides that an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrates, all articles seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the Police station. (43). This section makes it clear that the Officers Incharge of the Police Stations are not deprived of their general powers under the Code of Criminal Procedure in respect of offences, punishable under the NDPS Act. I, therefore, have no hesitation in coming to the conclusion that the importance of the officers inchar- ge of the police station has not been taken away except to the extent indicated by Section 42 and 50 of the NDPS Act, nor the statutory importance of the officers incharge of the Police Station, in the matter of investigation into cognizable offences punishable under the NDPS Act has been reduced. (44). (44). It is well established that in India, the provisions of Code of Criminal Pro- cedure confer statutory powers on the officer Incharge of the police station to conduct investigation into cognizable offences and though, this power cannot be exercised in an arbitrary manner by the officer incharge of the police station and in appropriate cases, the Magistrate having the jurisdiction to take cognizance of the offence made direct u/S. 156(3) Cr.P.C. that an investigation be conducted and, in appropriate cases, the High Court may, in exercise of the inherent powers u/S. 482 Cr.P.C. quash the FIR and the investigation thereon if it is satisfied that the investigation by a police amounts to abuse of the process of the law and in appropriate cases, the Magistrate may exercise the powers under the Cr.P.C. for issue of warrant of arrest, remand, bail and proper custody of articles seized by the police, the officers Incharge of the police stations cannot be tightly deprived of their statutory right to conduct investigation into cognizable offences and to submit a report u/S.173(2) Cr.P.C. after the investigation is completed. There is nothing in the NDPS Act to suggest that so far as cognizable offence under the NDPS Act are concerned, the officers incharge of the police stations have been deprived of their statutory powers to conduct investigation under the Code of Criminal Procedure, 1973. On the other hand, as pointed out above, the various provisions of the NDPS Act itself show that the powers of the Officer Incharge of the Police Station have not been taken away to any extent, though a condition has been imposed hat in order the powers u/S. 42 Cr.P.C. may be exercised, there must be special empow- erment as provided in Section 42. The entire scheme of the Code of Criminal Procedure, 1973 and the statutory powers of the Officers-Incharge of the Police Stations to conduct investigation into cognizable offences and the fact that these statutory powers have not been taken away by the legislature, shows that so far as the investigations are concerned, the powers of the Officer Incharge of the Police Stations must be given due weight and having regarded to the above things, they must be regarded as more dominant than the rank of the police officers mentioned in the notification dated 16.10.86. (45). (45). It is well established that what is more proximate, in relation to any being, is more important than others in relation to that being and what is more important than others, is of course more dominant than all others. The importance of the officer incharge of the police station under the Code of Criminal Procedure as well as under several provisions of the NDPS Act suggest that law confers an important status on the officer holding of the post of the officer Incharge of the police station in as much as it empowers the police officer, to exercise the powers which are vested in the officer- in-charge of the police station and none else, and it is more important than being an officers of a rank prescribed u/S. 42 of the NDPS Act. I, therefore, have no hesitation in coming to the conclusion that the Notification dated 16.10.86, requires in the first instance that the police officer, who is empowered under the Notification to exercise the powers u/S. 42 must be and Officer Incharge of a police station and once this condition is satisfied, the second condition imposed by the Notification, that the police officer, who can exercise the powers u/S. 42 of the NDPS Act must be an officer of the rank of Inspector or Sub Inspector of the police should be satisfied. I, therefore, have no hesitation in coming to the conclusion that the powers which have been conferred by the Notification dated 16.10.86, have been conferred on the officers Incharge of the police stations provided he is of the rank of Inspector or Sub Inspector. In other words, the spirit and letter of Notification dated 16.10.86 is that the powers under the notification cannot be conferred on any police officer, unless he is an Officer Incharge of a Police Station. In Section 53 of the NDPS Act, legislature has deliberately omitted Police Department. It means that under section no police officer can be empowered to exercise the powers of an Officer-in-charge of the Police Station. This necessarily suggests that the case of powers of the Police Officers, the Police Offi- cers posted as officer-in-charge of police stations, legislature intends that they should exercise their powers under the Criminal Procedure Code, without any special empowerment under Section 53 of the NDPS Act. Thus the powers which a police officer duly empowered under the Notification dt. This necessarily suggests that the case of powers of the Police Officers, the Police Offi- cers posted as officer-in-charge of police stations, legislature intends that they should exercise their powers under the Criminal Procedure Code, without any special empowerment under Section 53 of the NDPS Act. Thus the powers which a police officer duly empowered under the Notification dt. 16.10.1986 can exercise, is the powers conferred on an officers-in-charge of a Police Station, under the Cri- minal Procedure Code. It may be further pointed out that in several cases, the Courts have considered the distinction between a police officer conducting investigation and any other officer exercising the powers of the officer incharge of a police station. In Raj Kumar Karval vs. Union of India, (17) Honble Supreme Court considered whether the officer of any Department other than police Department would be entitled to be called as a police officer, because such officer is empowered u/S.53 of the NDPS Act to exercise the powers of the officer incharge of the police station. Their Lordships of the Honble Supreme Court have held that what distinguishes a police officer from any other officer conducting investigation is this; the police officer conducting search, exercise the powers of the officer Incharge of a police station, and therefore, he is not only permitted to conduct the investigation, he is further permitted to submit the article u/S. 173(2) Cr.P.C. with a view to initiate criminal proceedings against the offenders. But any other officer, who is not a police officer cannot submit a report u/S. 173(2) Cr.P.C. even if such officer possesses the powers of the officer incharge of the police station to conduct the investigation. Therefore,such officer will have to file a complaint in order to initiate the proceedings against the offenders. But any other officer, who is not a police officer cannot submit a report u/S. 173(2) Cr.P.C. even if such officer possesses the powers of the officer incharge of the police station to conduct the investigation. Therefore,such officer will have to file a complaint in order to initiate the proceedings against the offenders. Keeping this distinction in view, it must be said that when the State Government by Notification dated 16.10.86 empowered the police officer of the rank of Inspector/Sub Inspector and impose a condition that such Inspector/Sub Inspector must be posted as officer Incharge of the police station, the object behind the Notification was to empower the officer Incharge of the police station, holding the rank of Inspector/Sub Inspector to exercise the powers u/S. 42 of the NDPS Act and to conduct investigation by exercising the general powers of investigation conferred u/S. 156 and 157 Cr.P.C. so that such police officer, may in exercise of his general powers, submit a report u/S. 173(2) Cr.P.C, 1973 to initiate criminal proceedings against the offenders. (46). For above reasons, I come to the conclusion that the Notification dated 16.10.86 in fact, empowers the officer Incharge of the police stations in Rajasthan to exercise their powers u/S. 42 of the Code of Criminal Procedure, in respect of offences punishable under the NDPS Act and this empowerment has the effect of lifting the ban, which is imposed by the special provisions contained in Sec .42 and 50 of the NDPS Act, and therefore, it is proper to say that the Notification dated 16.10.86 by lifting the ban imposed by Section 42 and 50 of the NDPS Act restores the powers of the officer Incharge of the police stations to conduct search and sei- zure and to investigate into cognizable offences punishable under the NDPS Act, provided such officer incharge of the police station is of the rank of Inspector/Sub Inspector of the police. In view of above conclusions, there can be no escape from the conclusion that the powers conferred by the Notification dated 16.10.86 are the powers, which are available to the officer Incharge of the police stations in Rajas- than and such powers can be exercised by the superior officer of the Police Department by virtue of the provisions contained in Section 36 Cr.P.C. (47). For above reasons, in my considered view, the police officer superior in rank to Inspectors/Sub Inspectors of police can exercise the powers u/S. 42 of the NDPS Act, in all those cases in which the powers u/S. 42 of the NDPS Act are con- ferred by the Notification issued by the State Government, on the officer incharge of the police stations, holding the rank of Inspectors/Sub Inspectors of the police. (48). In the instant case, it is not disputed that the officer Incharge of the police station, Balotra was holding the rank of Inspector/Sub Inspector of police and he was not available when the accused non-petitioner Kalu Ram was taken to the po- lice station for the purpose of conducting search of his person and on account of the absence of the Station House Officer of the police station, the accused-non-petitioner Kalu Ram was taken to the Dy.S.P. Balotra, who in fact conducting the search. The view taken by the learned District and Sessions Judge, Balotra that the Dy.S.P. was not empowered to conduct the search u/S. 42 read with 50 of the NDPS Act and was not empowered to conduct the investigation in the case, is erroneous and it has resulted in abuse of the process of the law. It is, therefore,a fit case in which the powers of this court u/S. 482 Cr.P.C. must be invoked to quash the impugned orders passed by the learned District & Sessions Judge, Balotra. (49). For the reasons mentioned above, the petition is allowed. The impugned order dated 3rd March,1989 passed by the learned District and Session Judge, Balotra discharging the accused non- petitioner Kalu Ram on the ground that the Dy.S.P. had no jurisdiction to conduct search and seizure u/S. 42/50 of the NDPS Act and that he was not empowered to conduct the investigation is hereby quashed and set aside. The case is remanded to the learned District and Sessions Judge, Balotra with the direction that the case be restored to its original number and a warrant of arrest should be issued to compel the appearance of the accused non- petitioner Kalu Ram and after his appearance, the hearing of the case should be proceeded in accordance with law.