SINGH, J. - (1.) HEARD the learned Public Prosecutor.
(2.) THIS petition u/s. 482 Cr. P. C. is directed against the order dated 3rd March,89 passed by the learned District and Sessions Judge, Balotra in session case no. 33/88 State vs. Kalu Ram. By the impugned order the learned District Judge, Balotra while purporting to act as a Special Judge under the Narcotic Drugs and Psychotrophic Substances Act (for short NDPS Act) discharged the accused-non-petitioner Kalu Ram of the charges u/s. 17 and 18 of the NDPS Act on the ground that the Deputy Superintendent of Police, who conducted the search of the accused Kalu Ram was not empowered to conduct the search. The learned Public Prosecutor has submitted that the view taken by the learned District Judge, Balotra is erroneous in view of Section 36 Cr. P. C. which empowers the superior officers to exercise the powers of the Officer Incharge of the Police Station and in view of the fact that the officer Incharge of the police station, Balotra was empowered to conduct search under the NDPS Act, the Dy. S. P. , Balotra must be said to have been empowered to conduct the search of the accu- sed-non- petitioner. The facts of the case so far as they are relevant for the disposal of this petition may be summarized as below :- On 19th March,88 at 8 a. m. Joga Ram F. C. No. 669, posted at Police Station, Balotra was on duty at fair being held at Telwara. He received information from a motbir at 7 a. m. that one Kalu Ram Vishnoi, who was putting on a white turban and was carrying a small bag had alighted from the bus, which had reached from Balotra and he was carrying opium in his bag. On receiving this information ,joga Ram F. C. , went to the Bus Stand , Balotra and saw the accused Kalu Ram standing there. On making inquiry from the accused, Joga Ram came to know that his name was Kalu Ram. Joga Ram brought Kalu Ram to the Police Station, Balotra. On know that the Station House Officer of the police station, Balotra had gone to Barmer in connection with some official work. Since the Station House Officer of the police Station was not available, Joga Ram produced the accused Kalu Ram before the Dy. S. P. ,balotra. In presence of the motbirs, the Dy. S. P. conducted a search of the accused Kalu Ram. On opening the bag, which Kalu Ram was carrying with him , opium was recovered. On weighing the opium recovered from the accused, it was found to be of 930 gms, in weight. Samples were taken from the opium recovered from the accused for the purpose of analysis. The samples as well as the remaining portion of the opium were sealed then and there and FIR No. 56 dated 19. 3. 88 was registered at police station, Balotra. The Dy. S. P. , Balotra lodged the FIR at the police station and prepared the recovery memo dated 19. 3. 88. He recorded the Statements of Joga Ram, Jetha Ram, Basta Ram, Keerta Ram, Paras Ram and Toga Ram during the investigation. One of the samples was sent to Forensic Science Laboratory, Jaipur for analysis. The report of analysis disclosed that the sample was found to be of opium containing 1. 18% morphine. After conducting investigation, the SHO of the police station , Balotra has submitted the charge-sheet in the court of Addi- tional Chief Judicial Magistrate, Balotra on 29th July,1988. The Additional Chief Judicial Magistrate, Balotra committed the case to the court of District Judge, Balotra on 18th August,88. The learned District Judge heard the arguments on charge on 28th February,89 and vide order dated 3rd March,89 he discharged the accused-non- petitioner Kalu Ram of the charges under Sections 17 and 18 of the NDPS Act on the ground that the Dy. S. P. , Balotra was not legally competent to conduct the search of the accused, nor he was competent to conduct the investigation in the case. Feeling aggrieved by the order dated 3rd March,89 passed by the learned District Judge, the State has filed this petition. The only point to be decided in this petition is whether the Dy. S. P. was empowered to conduct the search of the accused-non- petitioner u/s. 42 read with Sec. 50 of the N. D. P. S. Act, 1985, by virtue of the provisions contained in Section 36 Cr. P. C. 1973. The learned District Judge, Balotra has cited following decisions in his order:- (1) Hanuman vs. State of Rajasthan (1) (decided on 15th December,1987 by Hon'ble Mr. Justice K. S. Lodha); (2) Nand Lal vs. State of Rajasthan (2) (decided by Hon'ble Mr. Justice V. S. Dave); (3) Umrao vs. State of Rajasthan (decided by Hon'ble Mr. Justice Farooq Hasan ); (4) Hardeva vs. State of Rajasthan (4) (decided by Hon'ble Mr. Justice D. L. Metha); (5) Roland Markas Gunthar vs. State of Rajasthan (5) (decided by Hon'ble Mr. Justice D. L. Metha); (6) Gopal vs. State of Rajasthan (6) (decided by Hon'ble Mr. Justice G. K. Sharma); (7) Veerma vs. State of Rajasthan (7) (decided on 17. 10. 88 by Hon'ble Mr. Justice G. K. Sharma); (8) Sattar Mohammed vs. State (8) (decided by Hon'ble Mr. Justice G. K. Sharma); (9) Raju & Basant vs. State (9) ( decided on 19. 10. 88 by Hon'ble Mr. Justice G. K. Sharma ).
(3.) THE learned District Judge has also cited following unreported orders of the Rajasthan High Court:- (1) State vs. Hajari (10) (decided on 14. 4. 88) (2) State vs. Chaina Ram (11) (decided on 14. 4. 88) (3) State vs. Jagmal (12) (decided on 29. 4. 88) (4) State vs. Shivji (13) (decided on 29. 7. 88) (5) State vs Jagram (14) (decidec o n 29. 7. 88) The learned District Judge has not discussed the decisions given in the above mentioned 14 cases cited by him. He has neither given the facts of the cases, nor pointed out the points of law decided in those cases,nor he has cared to give the decisions given in the cases and much less the reasons for the decisions. Since an officer of the rank of District and Sessions Judge has cited 14 cases of this Court in support of his order and omitted to point out what was the ratio decendi of those cases, I deemed it fit to call the files of the unreported cases from the registry in order to ascertain whether the decisions given in those cases have any bearing on the question of law arisen before the learned District Judge. I have also perused the decision of the 9 cases which have been reported in the Law Journals. After carefully going through the decisions given in the 14 cases cited by the learned District Judge, I am pained to observe that not even in a single case, out of 14 cases cited by the learned District Judge, there is any observation by this Court touching the question of law, which the learned District Judge had to decide. ;