JUDGMENT
H.R. Panwar, J.
1. This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short “the Code” hereinafter) is directed against the order dated 19.12.2001 passed by Special Judge, N.D.P.S. Cases, Chittorgarh (for short ‘the trial Court’ hereinafter) in Sessions Case No. 67/2001, whereby the trial Court discharged both the accused non-petitioners of the offences under Sections 8/18 and 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ hereinafter). Aggrieved by the order discharging the accused non-petitioners, the State of Rajaslhan through its public prosecutor has filed the instant revision petition.
2. I have heard learned public prosecutor and counsel appearing for the accused non-petitioners. Carefully gone through the order impugned and record of the trial Court.
3. Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of this revision petition are that Sub-inspector Harendra Singh, who at the relevant time was holding the charge of Station House Officer, Police Station Chanderiya, received a secret information that both the accused non-petitioners are trading in the opium and on a particular day, transporting the opium on a Hero Honda Motorcycle going towards Rolaheda. The information was found to be reliable and was reduced to writing in Rojnamcha Aam Report. The information, as envisaged under Sub-section (2) of Section 42 of the NDPS Act.was separately written. The information was sent to higher officials i.e. Superintendent of Police and Additional Supdt. Of Police through Constable Ratanlal. Thereafter, Harendra Singh along with the other officials went to the place disclosed in the secret information along with two independent Motbirs namely Narayan Lal and Munir Khan. At about 12.10 P.M., two persons were found coming on a Hero Honda Motorcycle from Highway road. They were got stopped. On being asked, they disclosed their names Amar Chand and Bherulal, the accused non-petitioners herein. A notice was served on the accused non-petitioners under Section 50 of the NDPS Act for their search giving option to be searched in. the presence of the Magistrate or Gazetted Officer or by sub-inspector Harendra Singh. On being searched, accused nonpetitioner No. I Amar Chand was found in possession of 4 kg. 200 grams of opium in a plastic bag which the accused non-petitioner No. 1 was holding in his hand. Two samples of 30 grams each were taken. The samples and the remaining opium were sealed on the spot. Both the accused non-petitioners were arrested and Panchnama, seizure memo etc. were prepared including the memo of specimen seal etc. A crime report was registered. After usual investigation, a challan was filed against the accused nonpetitioners for the offences noticed above.
4. The trial Court at the stage of framing of charge discharged the accused non-petitioners for the offences solely on the ground that search and seizure made by Harendra Singh, Sub inspector was not an authorized officer as envisaged under Section 42 of the NDPS Act and notification of the State of Rajasthan S.O. 115 dated 16.10.1986.
5. It is contended by the learned public prosecutor that at the time of framing of charge which is initial stage of the case, it cannot be gone into by the trial Court that search and seizure made by the officer was not empowered person. This is a question of fact and has to be gone into on appreciation of the evidence which may be adduced at the time of trial. It is further contended that on the relevant date of occurrence, the regular S.H.O. Himmat Singh posted to that particular Police Station was on leave and while proceeding on leave, the charge of Police Station was handed over to sub-inspector Harendra Singh and for all practical purposes, on the relevant date and time, subinspector Harendra Singh was the S.H.O. Police Station Chanderiya and therefore, he was empowered as envisaged under Section 42 read with the notification of State of Rajasthan S.O. 115 dated 16.10.1986, which provides that in exercise of the powers conferred by Section 42 of the NDPS Act (Act No. 61 of 1985), the State Govt. hereby authorize all Inspectors of police, and Sub-Inspector of police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect:
6. Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the Police Station concerned.
7. Learned public prosecutor has relied on decisions of Hon’ble Supreme Court in State of Himachal Pradesh v. Shri Pirthi Chand and Anr. and in Md. Malek Mondal v. Pranjal Bardalal and Anr. 2005 Cr.L.J. 2613 (SC).
8. Learned Counsel for the accused non-petitioners has relied on decisions of Hon’ble Supreme Court in Ajaib Singh v. Gurbachan Singh and Ors. 1965 (2) Cri. L.J. 553, in Roy V.D. v. State of Kerala 2001 Cr.L.R. (SC) 54, and two decisions of this Court in Kesha Ram v. State of Rajasthan 2002 (1) Cr.L.R. (Raj.) 197 : RLW 2003(1) Raj. 575 and Bherulal v. State of Rajasthan 2004 (1) Cr.L.R. (Raj.) 612.
9. I have given my thoughtful consideration to the rival contentions raised by learned Counsel for the parties. 1 have scrutinized, scanned and evaluated the evidence on record.
10. A secret information Under Section 42 of the NDPS Act was reduced to writing by Sub-Inspector Harendra Singh, incharge, police station Chanderiya which was forwarded to the Superintendent of Police, Additional Superintendent of Police and Circle Officer, Chittorgarh on 10.8.2001 at 11.15 A.M. which was received by Additional Superintendent of Police, Chittorgarh at 12.05 P.M. on the very day and also by Superintendent of Police at 12.15 P.M. on the same day which is evident from the receipt by Anil Paliwal, Superintendent of Police, Chittorgarh and Additional Superintendent of Police, Chittorgarh. After search and seizure, a crime report was lodged and matter was informed to higher authorities of search and seizure and arrest of the accused nonpetitioners by Sub-inspector Harendra Singh wherein the designation has been shown as Incharge, P.S. Chanderiya. Rojnamcha Report No. 65 at 10.35 A.M., on 10.8.2001 shows that the incharge police station Chanderiya went out of station for investigation in some other case and sub-inspector Harendra Singh was handed over the charge of the police station. Prima facie from the documents placed on record, it has been established that on 10.8.2001, from 10.35 A.M. onwards, sub-inspector Harendra Singh was incharge, P.S. Chanderiya and therefore, for all practical purposes, he was exercising the power of incharge, P.S. Chanderiya in absence of regular S.H.O. posted to that police station.
11. In State of Himachal Pradesh v. Pirthi Chand (supra), Hon’ble Supreme Court held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under Article It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the discharging of accused after filing of the charge-sheet on ground that mandatory requirements requirements of Section 50 had not been complied with, was not proper.
12. In a recent decision in MD. Malek Mondal v. Pranjal Bardalai (supra) Hon’ble Supreme Court held that the proceedings of the complaint are at initial stage after the cognizance has been taken. The allegations in the complaint are grave. The recovery, according to the prosecution, is of 2.050 kg. of heroin which, according to the statement of Dilip Das, belonged to the petitioner. The question whether Section 42 of the NDPS Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced before the Special Judge. Prima-facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for in-depth examination of this question. The contention that there is no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accused, Dilip Das, also cannot be accepted, at this stage, when only cognizance has been taken and the petitioner is still to be interrogated. It was further held by Hon’ble Supreme Court that at that stage it cannot be said that there was no material for taking cognizance by the special court.
13. In the instant case, recovery of huge quantity of opium weighing 4 kg. 200 grams has been effected from the accused non-petitioners who have failed to account for the same. A presumption under Section 35 of the NDPS Act as also under Section 54 of the NDPS Act prima-facie can be raised against the accused non-petitioners.
14. The officer incharge of the police station has been defined in Section 2(o) of the Code which provides that Officer-in-charge of a police station includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.
15. From the reading of aforesaid definition, it is clear that when the officer incharge of the police station is absent from the station-house, the officer present at the station-house who is next in rank and is above the rank of constable, on charge being handed over to him is the incharge station-house.
16. Rule 3(1) of the Rajasthan Police Rules, 1965 provides as under:
3.1 Officer Incharge of Police Station.- (1) The Officer incharge of a Police Station is ordinarily a Sub-Inspector. Within the limits of the Police Station Jurisdiction the Sub-Inspector is primarily responsible for the effective working, management, good conduct and discipline of the local police, for the preservation of peace and the prevention and detection of crime, the due performance of all police duties, the exercise by the police of the powers granted them by law, the correctness of all registers, records and reports prepared by them, and the direction, instructions and efficiency of all police subordinates in the station jurisdiction and matters for which the officer incharge of a police station is essentially answerable.
(2) It is the duty of the officer incharge of a police station to acquire detailed and accurate local knowledge, to secure the whole-hearted cooperation of Panchas of Panchayats and Chowkidars, encouraging them to give an information, to assist him in this work and to range themselves loyally on the said of the administration. Through them and his own subordinates he is required to keep a strict watch over all known bad characters and he shall communicate all intelligence of movement to his superious and to there police stations without delay.
(3) Within the limits of his charge he is the chief investigating officer and as such he shall conduct all investigations in person, so far as circumstances permit. His responsibility in this matter must be carefully maintained. Should it be necessary, owing to the absence of the Sub-Inspector or any other cause, for a subordinate to undertake an investigation, the Sub-Inspector shall satisfy himself by perusing the case diary and questioning the investigating officer that the investigation has been fully and properly conducted, shall remedy what is defective, and take over the investigation as soon as he is free to do so, except in a case originally investigated by an Assistant Sub-Inspector where he will be guided by rule.
(4) When present at the police station, he shall personally supervise the routine work of the station house, and shall be carefully to see that there are no arrears of correspondence and that the accounts are correct.
17. In Ajaib Singh v. Gurbachan Singh and Ors. (supra) Hon’ble Supreme Court while considering Section 3(2), Clause 15(i) and Section 40(2) of the Defence of India Act, 1962 and Rule 30(1) and 30A of Defence of India Rules, 1962 and Section 10(2) of the Code, held that Section 3(2), Clause 15(i) of the Defence of India Act, 1962, which is the source of power to detain according to the Rules to be framed thereunder itself lays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate. Rule 30 of the Defence of India Rules provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person. That power of the State Government can, however, be delegated under Section 40(2) to any officer subordinate to it. But the power of delegation must be read harmoniously with Section 3(2)(15) and, therefore, the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate. The position is further clearly brought out in Rule 30A which provides for review of a detention order made by an officer. It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate. The effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who, however, can in no case be lower in rank than a District Magistrate. The Act and the Rules, therefore, show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.
18. In Roy V.D. v. State of Kerela (supra) Hon’ble Supreme Court while considering the provision of Sections 41 and 42 as also Section 50 of the NDPS Act held that it may be noticed that conclusion was reached by the Constitution Bench in the context of non-compliance of Section 50 of the NDPS Act. While emphasising that it is imperative on the officer who is making search of a person to inform him of his right under Sub-section (1) of Section 50 of the NDPS Act, it was held that the recovery of the illicit article in violation of Section 50 of the NDPS Act would render the recovery of illicit article suspect and use of such material would vitiate the conviction and sentence of an accused. It is manifest that the recovery of illicit article in that case was by a competent officer but was in violation of Section 50 of the NDPS Act. In the instant case, however, the search and recovery were by an officer who was not empowered so to do. Further Balbir Singh’s case (supra) this Court took the view that arrest and search in violation of Sees. 41 & 42 of the NDPS Act being per se illegal would vitiate the trial. Therefore, the said conclusion cannot be called in aid to support the order under challenge. If the proceedings in the instant cases are not quashed, the illegality will be perpetuated resulting in grave hardship to the appellant by making him to undergo the ordeal of trial which is vitiated by the illegality and which cannot result in conviction and sentence. It is, in our view, a fit case to exercise power Under Section 482 of the Cr.P.C. to quash the impugned proceedings.
19. In Kesha Ram v. State of Rajasthan (supra) the police officer who conducted the search and seizure was not authorised to make search under Section 42 of the Act and therefore, on an appeal by convicted accused, this Court while allowing the appeal acquitted the accused therein.
20. In Bherulal v. State of Rajasthan (supra) this Court set aside the conviction on the ground of non-compliance of Section 42 . In that case, the recovery was effected by sub-inspector after resume of charge by the S.H.O., therefore, the sub-inspector who conducted the search and seizure was not empowered to conducted the search and seizure and the conviction was set aside.
21. In the instant case, from the evidence on record, prima-facie it is established that Sub-inspector Harendra Singh, at the relevant time and date when the search and seizure was made and proceedings were drawn including recording of secret information, sending it to the higher officials, giving of notice Under Section 50 of the NDPS Act, arrest of the accused non-petitioners, for all practical purposes, was the Station House Officer, P.S. Chanderiya as the regular Station House Officer was out of station and Harendra Singh, Sub-inspector was next in rank to him and therefore, was empowered to exercise the powers of Station House Officer, P.S. Chanderiya and while exercising those powers, the search and seizure was made by him. Therefore, the judgments relied on by the learned Counsel for the accused-non-petitioners are of no help to the non-petitioners as they turn on their own facts. In the instant case, the police officer who conducted search and seizure is not lower in rank than Sub-Inspector and therefore, authorising him to hold the charge of police station as Station House Officer is in conformity with the provisions of NDPS Act and notification of the State Government dated 16.10.1986. On the contrary, the judgments relied on by learned public prosecutor apply with all force on the facts of the instant case and therefore, the order impugned discharging the accused-non-petitioners at the initial stage of framing charge cannot be sustained and is liable to be set aside.
22. Consequently, the revision petition is allowed. The order impugned dated 19.12.2001 passed by Special Judge, N.D.P.S. Cases, Chittorgarh in Sessions Case No. 67/2001 discharging the accused-non-petitioners from the offences under Sections 8/18 and 8/25 of the N.D.P.S. Act is set aside. The matter is remanded to the trail Court to proceed with the framing of charge and trial of the case in accordance with law. The accused-non-petitioners are on bail, their bail bonds stand cancelled. The accused-non-petitioners to surrender forthwith before the trial Court.