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2005 DIGILAW 350 (KER)

Muhammed Ali v. S. I. of Police

2005-06-07

M.SASIDHARAN NAMBIAR

body2005
Judgment :- M. Sasidharan Nambiar, J. This is a petition filed under S.482 of the Code of Criminal Procedure by accused 4 and 6 in Crime No.199/05 of Perinthalmanna Police Station registered under Ss.3, 4, 5 and 8 of Immoral Traffic (Prevention) Act, hereinafter referred to as the Act to quash the proceedings as against him under S.482 of Code of Criminal Procedure. The Sub Inspector of Police, Perinthalmanna, as authorised in writing by Deputy Superintendent of Police, Perinthalmanna conducted the search at M.A. Tourist Home and arrested accused 1 to 6 male accused and 7 to 9 female accused on the allegation that they committed offences under Ss. 3, 4, 5 and 8 of Immoral Traffic (Prevention) Act. The accused was produced before the learned Magistrate after registering Crime 199/05 of the Police Station. Petitioners contended that the Sub Inspector of Police is not a Special Officer as provided under S.15 of the Act and therefore he is not authorized to conduct a search and search is per se illegal and therefore petitioners cannot be prosecuted on. the basis of the search and hence the proceedings is. to be quashed. Petitioners also contended that the search was conducted in violation of sub-s.(2) of S.15 as no woman witness was present at the time of search and therefore this Court has to exercise the inherent jurisdiction under S.482 of the Code to quash the proceedings. 2. Heard learned counsel appearing for~ the petitioners and the learned Public Prosecutor. 3. The learned counsel appearing for the petitioners pointed outdates is clear from Annexure I FIR search was conducted by the Sub Inspector though as authorized by the Deputy Superintendent of Police and Sub Inspector of Police is not a Special Police Officer and under S.15 the Special Police Officer cannot authorize a Subordinate Officer to conduct the search and hence search is per se illegal and as no woman witness of the locality witnesses the search, there is violation of sub-s.(2) of S.15 and therefore the prosecution as against the petitioners is to be quashed. Learned counsel relied on single Bench decisions of this Court in Sinu Sainudheen v. S.I. of Police, 2002 (1) KLT 693 = 2002 (1) KLJ 298, and Joseph v. S.I. of Police, 2003 (3) KLT 718, and argued that in view of the said decisions, petitioners are also entitled to get the case as against them quashed. The learned Public Prosecutor argued that as the Sub Inspector of Police was authorised in writing by the Deputy Superintendent of Police who is a Special Police Officer, the search is not invalid and in any event the failure to have a lady witness at the time of search or the validity of search are to be decided only at the time of trial and cannot be a ground for quashing the proceedings under S.482 of Code of Criminal Procedure. 4. S.15 of the Act provides how a search without warrant has to be conducted. Under sub-s.( 1) notwithstanding anything contained in any other law for the time being in force, whenever the Special Police Officer or the trafficking Police Officer has reasonable grounds for believing that an offence punishable under the Act has been or is being committed in respect of a person living in any premises and that search of the premises with warrant cannot be made without undue delay, such officer may after recording the grounds of his belief, enter and search such premises without a warrant. S.13 of the Act provides for Special Police Officer. Under sub-s.(1) there shall be for each area to be specified by the State Government, a Special Police Officer appointed by or on behalf of the Government for dealing with the offences under the Act in that area. Sub-s.(2) provides that the Special Police Officer shall not be below the rank of an Inspector of Police. Though learned Public Prosecutor argued that the officer who conducted a search is Sub Inspector and therefore under sub-s.(2) of Section he is a Special Police Officer, sub-s.(2) only provides the minimum rank of an officer to be appointed as a Special Police Officer. Under sub-s.(2) a Special Police Officer has to be an officer of the rank of the inspector of Police or above. But unless he is appointed as a Special Police Officer as provided under sub-s.(1) by the Government, a Sub Inspector cannot be the Special Police Officer. Under sub-s.(2) a Special Police Officer has to be an officer of the rank of the inspector of Police or above. But unless he is appointed as a Special Police Officer as provided under sub-s.(1) by the Government, a Sub Inspector cannot be the Special Police Officer. Trafficking Police Officer is defined under S.2(j) as a Police Officer appointed by the Central Government under sub-s.( 4) of S.13. Sub-s.(4) of S.13 enables the Central Government for the purpose of investigating any offence to appoint such number of Police Officers as trafficking Police Officers. Therefore unless the Sub Inspector of Police who conducted the search is a Special Police Officer appointed by the State Government under sub-s.(1) of S.13 or was a Trafficking Police Officer appointed by the Central Government under sub-s.(4) of S.13, he is not competent to conduct a search under S.15 of the Act. 5. As per G.O.(Ms) No.56/02/Home dated 24.4.02 in super session of the earlier Notification, the Government of Kerala appointed Circle Inspector of Police attached to the Police Station shown therein as Special Police Officers under S.13(1) of the Act. Under item No. 145 Perinthalmanna Police Station is shown. Therefore the Special Police Officer appointed under S.13(1) in respect of the area of Perinthalmanna Police Station is not the Sub Inspector of Police but the Circle Inspector of Police. 6. Under S.14 of the Act an offence punishable under the Act shall be deemed to be a cognizable offence. Under proviso (i) arrest without warrant may be made only by the Special Police Officer or under his direction or guidance or subject to his prior approval. Under proviso (ii) when the Special Police Officer requires any Officer subordinate to him to arrest without warrant otherwise than in his presence, he shall give the Subordinate Officer an order in writing specifying the person to be arrested. Therefore, S.14 enables a Special Officer to authorise any other officer to arrest a person. But S.15 of the Act does not provide the Special Officer to authorize another officer to conduct the search. . 7. The validity of a search conducted by a Sub Inspector of Police who is not a Special Police Officer was considered by a learned Single Judge of this Court in Sinu Sainudheen & Anr. v. S.I. of Police, 2002 (1) KLT 693 = 2002 (1) KLJ 298. . 7. The validity of a search conducted by a Sub Inspector of Police who is not a Special Police Officer was considered by a learned Single Judge of this Court in Sinu Sainudheen & Anr. v. S.I. of Police, 2002 (1) KLT 693 = 2002 (1) KLJ 298. After elaborately discussing the entire case law, the learned Single Judge held that the search conducted under S.15 of the Act by the Sub inspector who is not a Special Police Officer as per se illegal and therefore the proceedings cannot be allowed to go on as it amounts to abuse of process of the Court and therefore the proceeding was quashed. The same learned Single Judge has followed the legal position in Joseph v. S.I. of Police, 2003 (3) KLT 718. 8. As the raid and search was conducted by the Sub inspector of Police, Perinthalmanna who is not a Special Police Officer it is per se illegal. Therefore, as held by this Court in the decisions referred to earlier, the continuation of the proceedings would amount an abuse of process of the Court and therefore the case as against the petitioners in Crime 199/65 of Perinthalmanna is quashed invoking the inherent jurisdiction of this Court under S.482 of the Code of Criminal Procedure. Crl.M.C is disposed of as above.