VYAS, J. - (1.) THE present petition under Section 482, Cr. P. C. is directed against the impugned remarks in the judgment dated 4. 11. 2004 passed by the Special Judge, N. D. P. S. Cases, Jodhpur in Sessions Case No. 38/2004.
(2.) THE petitioner, then Deputy Inspector General of Police, Jodhpur Range, Jodhpur, has impugned the judgment dated 4. 11. 2004 with the prayer to expunge the Court remarks/observation, to the extent, they relate to the petitioner in respect of investigation lapses on the ground that neither the investigation was conducted under the supervision of the petitioner nor petitioner was called upon at the trial for recording his statement by the prosecution. It is the case that an anonymous complaint was received in the office of the petitioner about illegal transportation of heroine which information was passed on by the petitioner to the concerned authority and, thereupon, the Regional Director, Narcotic Control Bureau, Regional Office, Jodhpur by its order dated 17. 2. 2004 constituted team which was accompanied by police. As a sequel to investigation, challan was filed in the matter for offences under the N. D. P. S. Act against accused Rajendra Singh and Latif Khan who were tried. After trial, the accused were acquitted. In the said judgment, the learned Special Judge found lapses on the part of the prosecution and made observations accordingly in the judgment. The Trial Court, in its elaborate discussion, found the petitioner liable for not acting in accordance with Section 41 (2) of the N. D. P. S. Act which, according to the judgment of the Court, led to prosecution lapse in the matter resulting in acquittal of the accused. It is contended by learned counsel for the petitioner that the Trial Court has committed error in not noticing the text of Section 41 (2) of the NDPS Act. Section 41 of the NDPS Act provides for delegation/authorization of powers and, in exercise of powers under Section 41, vide notification dated 16. 10. 1986 published in the Extraordinary Gazette the Government authorised the officers mentioned therein in respect of exercise of powers, within their jurisdiction, the powers mentioned in sub-section (2) of Section 41 of the Act. Learned counsel for the petitioner argued that by necessary implication no other authority of the State except for the authorities mentioned therein can exercise the powers. According to the petitioner, the Government vide the said notification only delegated powers in favour of the Collector and District Magistrate, District Superintendent of Police, District Excise Officer, S. D. O. , S. D. M. and Tehsildar only and the petitioner who was holding the post of Inspector General of Police cannot be said to be competent to exercise the powers under Section 41 (2) of the NDPS Act since the notification did not include Inspectors General of Police in the authorities in whose favour the powers have been delegated by the State Government. It is contended by learned counsel for the petitioner that the prosecution did not call upon the petitioner to appear for recording his statement and, therefore, he did not appear and thus there was no fault on his part. It is also contended that the investigation was not conducted under the supervision of the petitioner and, therefore, if there was any lapse in the investigation the petitioner cannot be blamed for the same. Learned counsel for the petitioner contended that strangely enough the Trial Court, without issuing any notice or without calling upon the petitioner to appear at the trial for examination, has proceeded to hold the petitioner responsible for the lapse in the investigation which was not ducted under the supervision of the petitioner. It is submitted that in para 48 of the judgment, the learned Trial Court has fixed the liability of the petitioner to act in accordance with Section 41 of the NDPS Act and held that the petitioner was competent to do so. Learned counsel for the petitioner emphatically argued that Section 41 (2) of the NDPS Act must not be read in isolation of the notification issued by the Government in this behalf and from perusal of the said notification dated 16. 10. 1986 it is obvious that the petitioner who was holding the post not enumerated in the notification cannot be said to have been conferred the power and jurisdiction to exercise in this behalf. Adverting to the notification Annex.-P/1 filed alongwith application on 13. 4. 2002, it is submitted that the remarks made against the petitioner deserve to be quashed in the light of the judgment of the Supreme Court, reported in (2001) 3 SCC 54 = RLW 2001 (2) SC 280, In the Matter of : `k' A Judicial Officer. Learned counsel for the petitioner emphatically argued that strangely enough the Trial Court has proceeded to find fault with the petitioner for not exercising jurisdiction but, in fact, neither the petitioner was called for examination at the trial nor the Court cared to grant opportunity of being heard to the petitioner. He contended that if the Trial Court felt an adverse notion for observation in the judgment against the petitioner, in all fairness, the petitioner ought to have been heard. It is vehemently argued that the learned trial Judge committed material irregularity in making his observations part of the judgment against a person who has not at all been heard in the case either personally or through representation. Learned counsel for the petitioner contended that the observations in the judicial scrutiny would go far with consequences against the petitioner in his career and, therefore, the learned trial Judge was legally under obligation to hear the petitioner before embarking upon making observations against the functioning of the petitioner.
(3.) THE learned Public Prosecutor passively supported the judgment impugned and submitted that being a superior authority it was the duty of the petitioner to exercise power under Section 41 of the N. D. P. S. Act as observed by the learned trial Judge even though his post had not been notified for delegation of powers under the notification issued for the purpose by the State Government. Learned counsel appearing for the non-petitioners does not dispute the issuance and existence of the notification Annex.-P/1 dated 16. 10. 1986. The relevant portion of notification dated 16. 10. 1986 reads as under :      " In exercise of the powers conferred by section 41 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government do hereby authorise the officers listed below to exercise, within their jurisdictions, the powers mentioned in Sub-section (2) of Section 41 of the said Act with immediate effect:- 1. Collector & District Magistrates 2. District Superintendent of Police 3. District Excise Officer 4. Sub-Divisional Officer & Sub-Divisional Magistrates 5. Tehsildar" At para 48 of the impugned judgment, there are categorical observations made by the learned trial Judge against the functioning of the petitioner resulting in non-exercise of power, according to the judgment impugned, vested in the petitioner. The Trial Court has observed that when Dansingh, vide Ex.-P/61, presented the information in writing to the petitioner, it was incumbent upon him to take on record the information in writing under Section 41 (2) of the N. D. P. S. Act and, thereafter, he should himself have acted or caused his subordinate officer, higher than a constable, to act for the arrest of the accused and search of the premises. However, the fact revealed on the record is that the petitioner transmitted the information made available to him by Dan Singh to the Zonal Director, N. C. B. , Jodhpur along with NCB Form-1. So far as notification issued in consonance with Section 41 of the N. D. P. S. by the State Government is concerned, it specifically empowers the officers mentioned therein to act in exercise of power under sub-section (2) of Section 41, N. D. P. S. Act. The notification as such does not include the Inspector General of Police in respect of exercising jurisdiction under sub-section (2), however, it empowers the District Superintendent of Police, certainly an incumbent directly subordinate to the petitioner. ;