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2011 DIGILAW 2209 (RAJ)

Sharvan Kumar v. State of Rajasthan

2011-10-13

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—Aggrieved by the order dated 13.05.2009 passed by the Special Judge (NDPS Act Cases) Ajmer, whereby the learned Judge has taken cognizance of offences under Sections 8(c)/15(c) read with Sections 25 and 35 of the NDPS Act ('the Act' for short) and has summoned the petitioner through warrant of arrest, the petitioner has approached this Court. 2. The facts of the case are that on 13.5.2007, around 4.00 p.m., the S.H.O. of Police Station, Mangliyawas left with a police party for checking vehicles on the road. Around 4.15 p.m. they saw a black Bolero Jeep coming from the side of Naseerabad. Three persons were sitting in the jeep. The police signaled the jeep to stop. However, the jeep driver accelerated the jeep and drove off. Suspecting something was amiss, the police chased the jeep. The driver left the National Highway and turned the jeep on to a narrow road leading towards the village Lidi. The driver and the two other passengers abandoned the jeep in a jungle between the villages Lidi and Lamana. They fled from the place. When the police searched the jeep, they discovered fourteen bags full of doda post powder. Since the persons were illegally transporting contraband drugs, therefore, offences under Sections 8/15 of the Act was made out. In order to carry out the recovery proceedings, around 5.00 p.m. two independent witnesses were sought. Moreover, Mr. Dharampal, Constable 569, was sent for bringing weighing balance and the weights. After weighing, it was discovered that the bags contained 292 Kg and 800 gms. of doda post powder. The police took out a sample of 250 gms from one bag for the purpose of sending it to the Forensic Science Laboratory. It also took out 250 gms of the contraband drug as control sample. After the recovery proceedings were over, the police seized the jeep and brought the jeep and the contraband drug to the police station. At the police station, Mr. Ramesh Kumar, SHO lodged a formal FIR against unknown persons for offences under Section 8/15 of the Act. 3. During the course of investigation, on 17.04.2008, the police arrested one Rajuram; on 14.9.2008, the police arrested one Jabbar Singh, the brother of the present petitioner. At the police station, Mr. Ramesh Kumar, SHO lodged a formal FIR against unknown persons for offences under Section 8/15 of the Act. 3. During the course of investigation, on 17.04.2008, the police arrested one Rajuram; on 14.9.2008, the police arrested one Jabbar Singh, the brother of the present petitioner. After completing the investigation, the police submitted a charge-sheet against Rajuram for offences under Sections 8/15 of the Act, and against Jabbar Singh for offences under Sections 8/25 of the Act before the Special Court (NDPS Act) Cases, Ajmer. They kept the investigation pending against one Narendra @ Nenu as he could not be arrested. After taking cognizance against Rajuram and Jabbar Singh, the case was scheduled to be listed on 3.11.2008 for charge arguments. However, the charge arguments were heard on 17-04-2009. The charge order was scheduled to be pronounced on 21-04-2009. 4. However, even prior to the framing of charge, one Hanuman Singh, the registered owner of the jeep, filed an application under Section 451 Criminal Procedure Code ('the Code', for short) before the learned judge for seeking the custody of the jeep. But vide order dated 17-03-2009, the learned judge dismissed the said application. The learned judge held that since the jeep had been sold by Hanuman Singh to the present petitioner, Shravan Kumar, therefore, the application for custody should have been moved by Shravan Kumar and not by Hanuman Singh. On 30-03-2009, the petitioner, Shravan Kumar filed an application under Sections 451 and 457 of the Code for seeking the custody of the jeep. The application was filed on the ground that the petitioner had entered into an agreement with Hanuman Singh on 31-10-2005 for buying the jeep from him. Ever since then, the jeep has been with the petitioner's brother, Jabbar Singh as the petitioner was serving in the Indian army. But the learned judge neither passed the charge order, nor passed any order on the custody application. Instead, vide order dated 13-05-2009, the learned judge took cognizance against the petitioner for offences under Section 8 (c)/ 15 (c) read with Sections 25 and 35 of the Act. The learned judge has summoned the petitioner through arrest warrant. Hence, this petition before this court. 5. Mr. Instead, vide order dated 13-05-2009, the learned judge took cognizance against the petitioner for offences under Section 8 (c)/ 15 (c) read with Sections 25 and 35 of the Act. The learned judge has summoned the petitioner through arrest warrant. Hence, this petition before this court. 5. Mr. Biri Singh Sinsinwar, Senior counsel for the petitioner has raised the following contentions before this court: firstly, after a thorough investigation, the police did not find any evidence against the present petitioner. In fact, even the accused persons, against whom the police had submitted the charge-sheet, did not say a word about the involvement of the petitioner in the case. Interestingly, although the police have kept the investigation pending against one Narendra @ Nenu, but they have not kept the investigation pending against the petitioner. Instead, the police have arrayed the petitioner as a prosecution witness in the list of witnesses. Thus, there is no linking evidence connecting the petitioner to the alleged crime. Secondly, although the jeep was bought by the petitioner from Hanuman Singh, since the petitioner is posted in the Indian Amry and is serving at the Saichin Glacier, the jeep was in the possession of his brother, Jabbar Singh. Thirdly, Jabbar Singh has already been charge-sheeted by the police for offences under Sections 8/25 of the Act. Fourthly, Section 25 of the Act uses the word "knowingly". The said provision has been interpreted by the Apex Court in the case of Bhola Singh v State of Punjab (JT 2011(3) SC 392). According to the Apex Court the prosecution has to reveal the basic facts to show that the owner had knowingly permitted the other person to use the vehicle for the purpose of committing an offence under the Act. However, in the present case, the petitioner was posted at the Siachin Glacier. Therefore, if the jeep was used by Jabbar Singh, the petitioner's brother, the petitioner cannot be said to know about the use of the jeep for commission of an offence under the Act. Therefore, the element of "knowingly permitted" is conspicuously missing in the present case. Thus, learned judge could not have taken cognizance against the petitioner for offence under Section 25 read with Section 35 of the Act. Therefore, the element of "knowingly permitted" is conspicuously missing in the present case. Thus, learned judge could not have taken cognizance against the petitioner for offence under Section 25 read with Section 35 of the Act. Fifthly, once the case was committed to the learned Judge and he had taken the cognizance against Rajuram and Jabbar Singh, the learned Judge could not have taken the cognizance against the petitioner as the petitioner had not been charge-sheeted by the police. The power to take cognizance against a person who has not been charge-sheeted by the police does not exist under Section 193 of the Code. In order to support this contention, the learned Senior counsel has relied upon the case of Ranjit Singh vs. State of Punjab ( (1998) 7 SCC 149 = RLW 1999(1) SC 159). According to the learned Senior Counsel, the learned Judge should have referred the case to the High Court for the High Court to invoke its power either under Section 397, or under Section 482 of the Code. However, the learned Judge could not have taken the cognizance against a person who was not arrayed as an accused by the police. The learned Senior Counsel has claimed that, in the alternative, the learned Judge should have waited till the stage of Section 319 of the Code for taking cognizance against the petitioner. In fact, the case was posted for pronouncing the order about the framing of the charge. Once cognizance was taken by the learned judge, considering the fact that the police had not charge-sheeted the petitioner, the learned judge should have waited till the stage of 319 of the Code was reached, before taking cognizance against the petitioner. Between the taking of the cognizance and framing of the charges against the accused persons, the learned judge could not have taken the cognizance against a person who has not been charge-sheeted by the police. Hence, the learned judge has over-stepped his jurisdiction. In order to buttress this contention, the learned counsel has relied upon the case of Raj Kishore Prasad vs. State of Bihar & Anr. ( (1996) 4 SCC 495 = RLW 1996(3) SC 87). 6. Countering these arguments, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has made the following submissions: firstly, the Act is a special law. In order to buttress this contention, the learned counsel has relied upon the case of Raj Kishore Prasad vs. State of Bihar & Anr. ( (1996) 4 SCC 495 = RLW 1996(3) SC 87). 6. Countering these arguments, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has made the following submissions: firstly, the Act is a special law. It deals with not only the control and transportation of narcotic drugs etc., but also deals with trials of cases relating to offences under the Act. Further, a special law will override a general law. This principle is contained in Section 4(2) of the Code. According to this section, if a special law prescribes a particular procedure to be followed, while carrying out a trial under the special law, then the procedure prescribed under the Code is not to be adhered to. Secondly, Section 36 of the Act enables the government to create Special Courts in order to deal with cases under the Act. Moreover, Section 36-A(1)(a) of the Act clearly lays down that all the offences under the Act, punishable with more than three years of imprisonment, shall be tried by the Special Court. The impugned order has been passed by the Special Court at Ajmer created under the Act. Furthermore, Section 36-A(1)(d) of the Act empowers the Special Court to take cognizance of an offence even if the accused has not been committed to it. According to the learned Public Prosecutor, Mr. Biri Singh is trying to confuse the court while arguing that the case was committed to the Special Court and that the Special Court does not have the power under Section 193 Code to take cognizance against a person not arrayed as an accused. In fact, in a case dealing with such a large quantity of doda post powder, the charge-sheet would have been filed directly in the Special Court. Relying on the cases of Raj Kumar Karwal vs. Union of India, (1990) 2 SCC 409 and Supreme Court Legal Aid Committee vs. Union of India, (1994) 6 SCC 731 , the learned Public Prosecutor has contended that under Section 36-A(1)(d) of the Act, the Special Court has the same power of taking cognizance as a Magistrate has under Section 190 of the Code. Therefore, the Special Court can certainly take cognizance even against a person not sent up for trial by the police. Therefore, the Special Court can certainly take cognizance even against a person not sent up for trial by the police. Therefore, this court need not enter into the issue regarding the power of the Sessions Court under Section 193 of the Code to take cognizance against a person who is not arrayed as an accused by the police. Thirdly, the cognizance is taken not of the offender, but of the offence. While going through the police report if the Special Court is of the opinion that the offence may have been committed by the petitioner, although he has not been charge-sheeted by the police, even then the Special Court can take cognizance against him. In order to buttress this contention, the learned Public Prosecutor has relied upon the case of SWIL Ltd. v Union of India ( (2001) 6 SCC 670 ) and the case of Uma Shankar Singh vs. State of Bihar & Anr. ( (2010) 9 SCC 479 ). Fourthly, while taking cognizance the learned Judge is concerned with a prima facie case. At the initial stage of taking cognizance the learned Judge can neither sift through the evidence, nor enter into a possible defence available to the accused. Hence, the learned Public Prosecutor has supported the impugned order. 7. Heard the learned Senior Counsel for the petitioner and the learned Public Prosecutor for the State and perused the impugned order. 8. Undoubtedly, the Act is a special law with regard to narcotic and psychotropic substances. It was enacted in order "to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith." 9. The Act contains various provisions which differ from the provisions of the Code. The Act contains various provisions which differ from the provisions of the Code. Section 4 (2) of the Code clearly stipulates 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." Thus, if the special law were to regulate the manner or place of investigating, inquiring into, trying or otherwise deal with such offences, the provisions of the Code cannot be applied. 10. Section 36 of the Act enables the government to establish Special Court for the purpose of providing speedy trial of the offences under this Act. Moreover, Section 36-C of the Act deals with the application of the Code to the proceedings before a Special Court. Section 36-C of the Act is. as under: Application of Code to proceedings before a Special Court:-Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 11. The section begins with a saving clause—save as otherwise provided in this Act. In short, when provisions are made on a procedural aspect of the trial under the Act, then the provisions of the Code shall not apply. In other cases, the provisions of the Code shall be applicable. (Ref. to Gangula Ashok vs. State of A.P., (2000) 2 SCC 504 ). Section 36-A of the Act is as follows: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government........... (b) Where a person accused of or suspected of the commission of offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such a Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers— (i) when such person is forwarded to him as aforesaid; or (ii) Upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who had been forwarded to him under this section; (d) A Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36. (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days". Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. (5) Notwithstanding anything contained in the Code of Criminal Procedure; 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily) 12. Obviously, Section 36-A of the Act provides a procedure which differs from the procedure contained in the Code with regard to trial in a warrant case by the Court of Session. Whereas under the Code the police is required to submit its report before a Magistrate under Section 173(2) of the Code, whereas in a case exclusively triable by the Sessions Court, the Magistrate is required to commit the case to the Court of Sessions under Section 209 of the Code, whereas the Sessions Court is free to take cognizance of the case under Section 193 of the Code once the case is committed to it, the procedure provided under Section 36-A of the Act is entirely different: firstly, the Special Court is empowered to try all the offences under the Act, punishable with imprisonment for a term of more than three years. Secondly, in such cases, the police or an authorised officer of the Central Government or of the State Government is required to file his report/complaint directly before the Special Court. Thirdly, and most importantly, the Special Court is empowered to take cognizance of the case without the committal of the accused before it. In other words, the Special Court is supposed to take cognizance on the basis of the investigation report/ complaint submitted before it. Thirdly, and most importantly, the Special Court is empowered to take cognizance of the case without the committal of the accused before it. In other words, the Special Court is supposed to take cognizance on the basis of the investigation report/ complaint submitted before it. Moreover, the section does not require a committal proceeding to be undergone before the Special Court can take cognizance of the offence. This is clearly in contra-distinction to the requirement of Section 193 of the Code, which permits the Sessions Court to take cognizance of the offence only after the case is committed to it. Since the Act provides a different provision for taking of cognizance by the Special Court, obviously, the requirements and provisions of the Code cannot be applied to a cognizance of an offence under the Act by the Special Court. Hence, the learned Senior Counsel is not justified in claiming that the cogni-zance by the Special Court has to be taken in accordance with the provisions of the Code. Moreover, his argument based on Section 193 of the Code is highly misplaced. Since the Special Court is required to take cognizance in accordance with Section 36-A of the Act, therefore, the reliance by the learned Senior counsel on the case of Ranjit Singh (supra) is equally misplaced. 13. Noting the difference between the Act and the Code, in the case of Supreme Court Legal Aid Committee (supra) at page 742 of the report, the Apex Court opined as under: Sub-sections 36-A (1) (a) and (d) (of the Act) which also begin with a non-obstante clause — notwithstanding anything contained in the Code — provide that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Government concerned authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to Section 190 of the Code. It is clear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36-C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. 14. Section 36-C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. 14. Hence, under Section 36-A the Special Court has the same power to take cognizance as a Magistrate has under Section 190 of the Code. In the case of M/s. India Carat Ltd vs. State of Karnataka & Anr. ( (1989) 2 SCC 132 ) and in the case of Uma Shankar Singh (supra), the Hon'ble Supreme Court has clearly held that under Section 190 of the Code, the Magistrate can take cognizance against those persons who have not been arrayed as an accused by the police. Thus, the Special Court would have ample power to take cognizance against the petitioner even if he has not been charge-sheeted by the police. Therefore, the contention raised) by the learned Senior Counsel that the learned Judge has exceeded his power under Section 193 of the Code is unacceptable. For the reasons given above, and as noted above, the argument of the learned Senior Counsel, based on Section 193 of the Code, is misplaced. 15. The next issue before this court is whether the learned Judge was legally justified in taking cognizance against the petitioner for offences under Sections 8(c)/15 (c) and 25 of the Act on the basis of Sec. 35 of the Act, or not? Section 25 of the Act is as under: Punishment for allowing premises, etc., to be used for commission of an offence; Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. And Section 35 of the Act is as follows: Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation: In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 16. A bare perusal of Section 25 of the Act clearly reveals that it creates a vicarious liability against a person who is the owner, or is occupier or having the control or use of any conveyance etc. provided that he has knowingly permitted the conveyance to be used by another person for the purpose of commission of an offence under the Act. Naturally, the words "knowingly permitted" means to have the knowledge that the other person shall do an act, legal or illegal, and to allow him to do so. Hence, in order to vicariously involve the owner the prosecution must make out a prima facie case that the owner has knowingly allowed the use of the conveyance by another person for the purpose of commission of an offence under the Act. 17. On the other hand, a bare perusal of Section 35 of the Act reveals that it creates a rebuttable presumption against the accused. The said presumption cannot be drawn at the initial stage of taking cognizance. It can be invoked only during the trial. But before this presumption can be pressed into service, the prosecution must lay down the basic facts for raising the presumption against the accused. It is only after the prosecution has laid down the basic facts constituting the offence that the presumption can be raised against the accused. It is only after the prosecution has discharged its initial burden of proof that the onus of proof shifts to the accused to rebut the presumption by leading cogent evidence on his behalf. 18. In the case of Bhola Singh (supra) the appellant, Bhola Singh, the owner of the truck in which contraband drugs were discovered, was convicted of offence under Section 25 of the Act with the aid of the presumption raised under Section 35 of the Act. 18. In the case of Bhola Singh (supra) the appellant, Bhola Singh, the owner of the truck in which contraband drugs were discovered, was convicted of offence under Section 25 of the Act with the aid of the presumption raised under Section 35 of the Act. While acquitting Bhola Singh, the Hon'ble Supreme Court observed as under: The initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting Narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond a reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond a reasonable doubt and not merely when its existence is established by a preponderance of probabilities. In the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. 19. Admittedly the present case deals with the initial stage of taking of cognizance, while the case of Bhola Singh (supra) dealt with a case of conviction. But even then, before cognizance can be taken a prima facie case must exist against the petitioner in the evidence collected by the police. The police report must reveal the basic facts constituting the elements of offence under Section 25 of the Act. There has to be sufficient evidence to prima facie show that the present petitioner had the knowledge that the jeep owned by him was used by Jabbar Singh, his brother, for commission of an offence under this Act. And the petitioner permitted him to do so. After all, at the stage of taking cognizance the learned Judge is concerned with the existence of a prima facie case against the accused. The trial court is not permitted to sift through the evidence. In fact, its examination is limited only to the evidence gathered by the investigation agency and as contained in the report/ com-plaint. The learned court is not permitted to step outside these limits. Further, the presumption under Section 35 of the Act could not be raised at the time of taking cognizance, but is available only during the course of the trial. 20. The learned court is not permitted to step outside these limits. Further, the presumption under Section 35 of the Act could not be raised at the time of taking cognizance, but is available only during the course of the trial. 20. In the present case, the police had registered and investigated the case against three persons, namely Rajuram, Jabbar Singh and Narendra @ Nenu. While it had filed the charge-sheet against the first two, it had kept the investigation pending against the last one. According to the charge-sheet, the police was well aware of the fact that the petitioner was the owner of the jeep in question. They were also aware of the fact that the petitioner was serving in the Indian Army at the Siachin Glacier. In fact, while the police had filed the charge-sheet against Jabbar Singh for offence under Section 25 of the Act along with other offences, it cited the petitioner as a prosecution witness. Therefore, the police did not file any charge-sheet against the petitioner. 21. A bare perusal of the impugned order clearly reveals that the learned Judge has taken the cognizance against the petitioner not so much on the police report as on the application filed by the petitioner under Sections 451 and 457 of the Code for the custody of the jeep. According to the learned Judge, in the application the petitioner had clearly admitted that he was owner of the jeep. Therefore, drawing the presumption under Section 35 of the Act, the learned Judge has taken the cognizance of offence under Section 25 of the Act. However, the learned Judge has ignored the legal position, as discussed above, and as underlined by the Apex Court in the case of Bhola Singh (supra). 22. Moreover, the learned Judge has totally ignored the contents and tenor of the charge-sheet qua the petitioner, as mentioned above. In fact, the learned Judge should have initially confined his consideration to the police report submitted before him. He should not have jumped to the application submitted by the petitioner. The learned Judge should have first mentioned the evidence gathered by the police against the petitioner, if any, and only then referred to the application moved by the petitioner. Instead, the learned Judge has placed the cart before the horse. He should not have jumped to the application submitted by the petitioner. The learned Judge should have first mentioned the evidence gathered by the police against the petitioner, if any, and only then referred to the application moved by the petitioner. Instead, the learned Judge has placed the cart before the horse. This court has asked the learned Public Prosecutor if there was any evidence gathered by the police against the petitioner. The learned Public Prosecutor fairly conceded, and in the opinion of this court rightly so, that there is not an iota of evidence collected by the police against the petitioner. In such a scenario, it is rather surprising that the learned Judge has taken the cognizance against the petitioner. Clearly, the learned Judge has over-stepped his jurisdiction. 23. The learned Judge has also over-looked the fact that the police had submitted the charge-sheet against Jabbar Singh for offence under Section 25 of the Act, besides other offences. Interestingly, the learned Judge has taken cognizance of the offence under Section 25 of the Act against the petitioner also. Curiously, if Jabbar Singh and the petitioner, both of whom are brothers, have committed the offence under Section 25 of the Act, then the learned Judge should have also taken the cognizance for offence under Section 29 of the Act which lays down the punishment for abetment and criminal conspiracy. However, the learned Judge has failed to do so. Thus, the learned Judge has ignored a provision of the Act. 24. Thus, this court holds that the Special Court has the power under Section 36-A(1)(d) of the Act to take cognizance against a person not charge-sheeted by the polite. But in the present case, the learned Judge has exercised the power arbitrarily and illegally. Hence, this petition is allowed and the impugned order dated 13.05.2009 is, hereby, quashed and set aside.