JUDGMENT : P.K. Misra, J. - The facts and circumstances giving rise to the present suo motu Criminal Revision are as follows : In course of inspection, the Chief Judicial Magistrate, Puri (in short, the "C.J.M.") found that 2 (a) CC Case No. 5/86 and 2 (a) CC Case No. 14/86 were pending before the Judicial Magistrate, First Class, Daspalla, where cognizance had been taken, inter alia, u/s 9 (a) of the Opium Act. The aforesaid two cases had been initiated on the basis of Prosecution Reports (in short, the "P.R.") submitted by the Sub- Inspector of Excise u/s 9 (a) of the Opium Act along with Section 47 (a) of the Bihar and Orissa Excise Act. It is admitted that the offences alleged to have been committed in both the cases took place after 14.11.1985, the date on which the Narcotic Drugs and Psychotropic Substances Act. 1985 (in short, the "N.D.P.S. Act") came into force. The C.J.M. was of the view that since the Opium Act, stood repealed by virtue of Section 82(1) of the N.D.P.S. Act, no action could have been taken under the provisions of the Opium Act. The C.J.M. was also doubtful as to whether any action could be taken against the culprits under the provisions of the N.D.P.S. Act, as according to him, no rules had been framed by the State Government under the N.D.P.S. Act authorising a Sub-Inspector of Excise to investigate into any offence under the N.D.P.S. Act. Accordingly, the C.J.M. purported to refer the matter u/s 395, Code of Criminal Procedure, 1973 (in short, the "Cr,P.C") to the High Court for its opinion. On the basis of such letter of the C.J.M., Criminal Reference No. 2.90 was registered in this Court. In the said Reference, Hon'ble/l. Pasaxat, _ J. observed by judgment dated 4.11.1993 that reference at the instance of the C.J.M. was incompetent and accordingly directed that the matter should be placed before Hon'ble the Chief Justice to consider as to whether suo motu revisional power should be exercised. Thereafter, the present proceeding has been initiated. The two accused persons in the two cases have been noticed and they have entered appearance through lawyers. 2. There cannot be any doubt that after the repeal of the Opium Act. Thereafter, the present proceeding has been initiated. The two accused persons in the two cases have been noticed and they have entered appearance through lawyers. 2. There cannot be any doubt that after the repeal of the Opium Act. the two cases could not have been initiated u/s 9 (a) of the said Act, nor any cognizance could have been taken thereunder in view of the admitted fact that the alleged offences occurred after 14.11.1 985, the date on which the Opium Act stood repealed by virtue of Section 82(1) of the N.D.P.S. Act. 3. The main question therefore, remains as to whether the P.R. submitted by the Sub-Inspector of Excise can be considered to be a P.R. under the N.D.P.S. Act, and as to whether the matter should be placed i before the appropriate authority, namely the Sessions Judge, for taking action as contemplated under the N.D.P.S. Act. The C.J.M. is of the view that the Sub-Inspector of Excise could not have investigated into the offences in the absence of any specific rules or notification authorising ' such Sub-Inspector of Excise to investigate into the offences. There is no dispute that subsequently notification has been issued on 23.3.1988 empowering all officers above the rank of Sub-Inspector of Excise of the State to exercise the powers and perform the duties specified in Sections 41. 42 and 53 of the N.D.P.S. Act. In the present case, admittedly, investigation had been conducted and P.R. had been submitted prior to 23.3.1.988. 4. The learned counsels for the accused persons have placed strong reliance upon the decision of this Court reported in (1991) 4 OCR 610 (Sk. Sakaout and Ors. v. State of Orissa) and contended that the Sub-Inspector of Excise was not authorised to investigate into any offence committed under the N.D.P.S. Act prior to the issuance of the notification. dated 23.3.1988. In the aforesaid decision, R. C. Patnaik, J. (as his Lordship then was) has, in fact, so observed relying upon several decisions of the Rajasthan High Court. In view of the above decision, it has been submitted by the counsels for the accused persons that no proceedings under the N.D.P.S. Act should be initiated, on the basis of such ultra vires investigation by the Sub-Inspector of Excise. In view of the above decision, it has been submitted by the counsels for the accused persons that no proceedings under the N.D.P.S. Act should be initiated, on the basis of such ultra vires investigation by the Sub-Inspector of Excise. In the alternative, they have submitted that even assuming that action under the N.D.P.S. Act can be initiated, such; a course should not be adopted after a period of about thirteen years, particularly when the materials on record indicate that the mandatory provisions of the N.D.P.S. Act relating to search and seizure are not complied with. It is, therefore, submitted that since no useful purpose would be served by initiating a fresh prosecution under the N.D.P.S. Act, such a course should not be adopted after such a long lapse of time. 5. Section 82(1) of the N.D.P.S. Act has repealed the Opium Act. 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930. Along with the enactment of the Legislature, necessary Notifications had been issued by the Central Government authorising various officials of the Central Government regarding investigation, et cetera, with effect from 14.1 1.1985, the date on which the N.D.P.S. Act itself came into force. However, corresponding Notifications, Rules et cetera had not been issued or framed by the various State Governments including the State of Orissa. As a matter of fact. Notifications were i'ssued under the N.D.P.S. Act in March. 1988, and subsequently the Orissa Narcotic Drugs and Psychotropic Substances Rules, 1989 (in short, the "Orissa Rules") were framed in 1989 only. 6. Prior to the coming into force of the N.D.P.S. Act, the Excise authorities were empowered to investigate into offences under the Opium Act. Under the Opium Act, Rules had been framed by the State authorising such officials to investigate into offence under the Act. Such rules framed under the Opium act so far as they were not inconsistent with the provisions of the N.D.P.S. Act can be said to have been saved in view of the provisions contained in Section 82(2) of the N.D.P.S. Act. It cannot be-said that the provisions contained in the Opium Rules relating to investigation by excise officials in any way were inconsistent with any of the provisions made under the N.D.P.S. Act, Rule 107 of the Orissa N.D.P.S. Rules repealed the Orissa Opium Rules. It cannot be-said that the provisions contained in the Opium Rules relating to investigation by excise officials in any way were inconsistent with any of the provisions made under the N.D.P.S. Act, Rule 107 of the Orissa N.D.P.S. Rules repealed the Orissa Opium Rules. Sub-rule (2) indicates that notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under any of the Rules so repealed shall, if not inconsistent with the provisions of the Rules, be deemed to have been taken under the corresponding provisions of these rules. Section 74 of the N.D.P.S. Act. which is a transitional provision, lays down that every officer or other employee of the Government exercising or performing, immediately before commencement of the Act, any powers or duties with respect to any matters provided for in the Act, shall be deemed to have been appointed under the relevant provisions of the N.D.P.S. Act. Thus by virtue of this transitional provision contained in Section 74 read with Section 82(2) of the N.D.P.S. Act and Rule 107 of the Orissa N.D.P.S. Rules, 1989, it can be reasonably held that the excise officials authorised to investigate into offences under the Opium Act which was repealed continued to have jurisdiction till appropriate provisions were made under the N.D.P.S. Act and the Orissa Rules. Similar conclusion can also be reached by applying the provisions of Section 24 of the General Clauses Act since it is apparent that the earlier Acts relating to control of narcotic drugs, such as the Opium Act and the Dangerous Drugs Act, have been repealed and re-enacted (of course with several modifications) under the N.D.P.S. Act. The preamble of the N.D.P.S. Act indicates that the Act.had been enacted to consolidate and amend the law relating to narcotic drugs. In the statement of objects.and reasons of the Act, it has been indicated that the statutory control over narcotic drugs was exercised in India through number of Central and State enactments, such as the Opium Act, 1857; the Opium Act, 1878; and the Dangerous Drugs Act, 1930. In the statement of objects.and reasons of the Act, it has been indicated that the statutory control over narcotic drugs was exercised in India through number of Central and State enactments, such as the Opium Act, 1857; the Opium Act, 1878; and the Dangerous Drugs Act, 1930. However, it was felt that the provisions in the said Act were not stringent enough and the menace of trafficking in drug had increased and as such it was necessary to enact more stringent provisions and as such it was felt necessary to enact a comprehen'sive legislation on narcotic drugs and psychotropic substances which, inter alia, would consolidate and amend the existing Laws relating to narcotic drugs. 7. Since the views expressed by the learned Single Judge in the earlier decision of this Court reported in (1991) 4 OCR 610 (supra) were rendered without referring to some of the relevant provisions noticed above, the decision being per incuriam, the same is not binding and the views expressed therein cannot be followed. 8. In view of the aforesaid discussion, it is clear that though the prosecution under the Opium Act was invalid, the accused persons can be prosecuted before the appropriate Court, that is to say, the Sessions Judge or the Additional Sessions Judge, as the case may be, under the provisions of the N.D.P.S. Act. 9. Mr. D.PDhal appearing for the accused person, however, submitted that even assuming that a prosecution under the N.D.P.S. Act could have been launched, the mandatory provisions contained in the N.D.P.S. Act relating to search and seizure having not been complied with, no direction should be made at this stage for continuing the prosecution under the N.D.P.S. Act as such a prosecution is bound to end in acquittal of the accused person. The question as to whether the mandatory provisions of the Act have been complied or not, need not be decided by me in this revision, as the said question can be raised by the accused persons before the Court at the appropriate stage. 10. The learned counsels for the two accused persons also submitted that in case it is decided to continue the prosecution, under the N.D.P.S. Act, the accused persons are likely to be re-arrested even though the\ had been granted bail earlier and they have not abused their liberty and appropriate directions should be issued. Such submission is reasonable. 11. 10. The learned counsels for the two accused persons also submitted that in case it is decided to continue the prosecution, under the N.D.P.S. Act, the accused persons are likely to be re-arrested even though the\ had been granted bail earlier and they have not abused their liberty and appropriate directions should be issued. Such submission is reasonable. 11. For the aforesaid reasons, the suo mot it Criminal Revision is allowed and it is directed that the prosecution reports in the two cases shall be placed before the Additional Sessions Judge, Nayagarh. lor taking appropriate action in accordance with law under the N.D.P.S. Act. It is made clear that the Additional Sessions Judge is to deal with the matter in accordance with law and on the basis of materials on record without being influenced by any observations made in the present order It is made clear that the accused persons on their appearance before the Additional Sessions Judge shall be released on bail on the same terms and conditions Final Result : Allowed