- (1.) These two petitions under S.482, Cr. P.C. arise out of the following facts : On 20-8-1988 some contraband charas was recovered from the possession of Hamid Ullah, Vahid and Halim by one Sri H.P. Singh, an Excise Inspector of the State of Uttar Pradesh. The three were consequently arrested on the said date. On 21-8-1988 all three accused were produced before the C.J.M. Link Magistrate Meerut who passed the following order :- "Aaj Dinank 21-8-88 Ko Uprokt apradh Men Muljim Uprokt Ko Thaney Dwara Giraftar Karkey Remand Koy Merey Samaksh Pesh Kiya Gaya. I.R. Ki Remand Prarthna Patra Key Auolokan Dwara Giyat Hua Ke Vivechana Abhi Shesh Hai. The C.D. has not been produced. The Excise Inspector has submitted that G.D. and C.D. are not maintained by the Excise Officers as only State complaint is preferred. The case property is in duly sealed condition. The wrapper has a label (D-19A) with the signature of the accused. The Excise Inspector has submitted, that the seized property shall be sent for Charcoal examination report and if the report is positive then he shall prefer a complaint. Heard. Perused the material On record. The accused remanded to judicial custody till 29-3-1988."
(2.) Against the said remand order dated 21-8-88 Criminal Revision No. 294 of 1988 was preferred by Halim. Criminal Revision No. 295 of 1988 was filed by Hamid Ullah and Crl. Revision No. 296 of 1988 was filed by Wahid before the Sessions Judge Meerut. These revisions were admitted and the Sessions Judge granted bail to all the three accused. By an order dated 3-10-1988 all the three petitions have been dismissed against which Hamid Ullah has filed Cr. Misc. Application No. 10031 of 1988 while Wahid and Helium have filed Cr. Misc. Application No. 10059 of 1988. When these matters came up before this Court on 7-10-1988 the Government Advocate was directed to obtain instructions to file a counter-affidavit and the matter was directed to be taken up for admission on 12-10-1988. Sri Satish Trivedi and Sri Rajesh Kumar Sharma have argued the matter on behalf of the applicants and Sri Prem Prakash Yadav, learned Deputy Government Advocate has appeared on behalf of the State of Uttar Pradesh and also the Excise Inspector, U.P. Excise, Sector 1 Meerut.
(3.) Sri Trivedi has argued that the remand granted by the Magistrate on 21-3-88 is not in accordance with law and, therefore, the detention of all the three applicants was not legal and consequently the two petitions be allowed and the accused should be set at liberty. The applications are being contested on the ground that there is no illegality in the proceedings and all the actions and orders are in accord with the provisions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act.). My attention was drawn to S.53 of the Act by Sri Trivedi. It was argued that in view of Sub-Sec. (2) of S.53 a notification by the State of Uttar. Pradesh investing an officer of the State Excise Department with the powers of officer-in-charge of a Police Station for investigation of offences under the Act should have been made and in the absence of such notification the arrest, seizure, and production of accused by Sri H.P. Singh, Excise Inspector, is illegal. For correct appraisal of the arguments S.53 itself may be quoted below : "Section 53, Power to invest officers of certain departments with powers of an officer-in-charge of police station - (1) The Central Government, after consultation with the State Government may be 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. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act." It has further been argued that even if it be assumed that under Ss.42 and 43 of the Act, Sri H.P. Singh, could effect arrest and seizure, he did not have power of investigation and, therefore, further remand could not be obtained by Sri. Singh. The attention of the court was drawn by Sri. P.P. Yadav to Ss.51 and 52 of the Act which read as under :- "51. Provisions of the Code of Criminal Procedure 1973 to apply to warrants, arrests, searches and seizures. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act." "52. Disposal of persons arrested and articles seized - (1) Any officer arresting a person under S.41, S.42, S.43, or S.44 shall as soon as may be, inform him of the grounds for such arrest." (2) Every person arrested and article seized under warrant issued under Sub-Sec. (1) of S.41, shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under Sub-Sec. (2) of S.41, S.42, S.43 or S.44 shall be forwarded without unnecessary delay to - (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under S.53. (4) the authority or officer to whom any person or article is forwarded under Sub-Sec. (2) or Sub-Sec. (3) shall with all convenient dispatch, take such measures as may be necessary for disposal according to law of such person or article." While judging the argument it may be necessary to refer to Cl.(XIX) of S.2 of the Act which reads as under : Word and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code.";