ORDER R.C. Deepak, J.
1. Heard Sri Satish Trivedi, learned senior counsel assisted by Sri S.S. Giri and Sri Krishan Ji Khare, learned Counsel for the petitioner, Sri S.L. Kesarwani, learned Counsel for the State and perused the record.
2. Affidavit by the State and written argument by the learned Counsel for the petitioner filed be taken on record. Counter and rejoinder affidavits have already been exchanged.
3. The petitioner-accused Ajay Kumar Kashyap has filed this criminal miscellaneous writ petition against the opposite par-ties for quashing:
(a) orders dated 13-9-2005 and 27-9-2005 of the Sessions Judge, Ghazipur vide Annexures-5 & 6 respectively attached to the writ petition;
(b) the criminal proceedings of the criminal case No. 359 of 2005 (State of U.P. v. Ajay Kumar Kashyap) pending in the Court of 1st Additional Sessions Judge, Ghazipur arising out of case crime No. 1070 of 2005 punishable under Sections 8 & 21 of the N.D.P.S. Act;
(c) the charge-sheet dated 28-7-2005 relating to the above criminal case No. 359 of 2005, and for releasing the petitioner-accused mainly on the grounds inter alia that there is non-compliance with the mandatory provisions of Sections 41, 42 & 50 of the N.D.P.S. Act, that there is nothing in the alleged recovery memo or the alleged first information report revealing who made the search on the petitioner / accused, who recovered the alleged contraband, who allegedly seized the alleged contraband, who caught hold of the accused-petitioner and who arrested him, that no charge could be framed for initiation and trial of the accused-petitioner, that the whole case is based solely on the alleged recovery memo, that there is no other evidence like the independent public witness / witnesses, that there is bleak possibility of the conviction of the accused-petitioner and that all the proceedings relating to the above criminal case should be quashed at the preliminary stage itself.
4. The respondent No. 2 State of U.P. has filed counter affidavit denying all the allegations made by the accused-petitioner in his petition, contending that the petition has been filed on false and frivolous grounds and asserting that Sections 41, 42 and 50 of the N.D.P.S. Act have been fully complied with and, therefore, the petition deserves to be dismissed.
5. While specifically referring to Section 42 of the N.D.P.S. Act, which is reproduced as under:
Section 42. Power of entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance enclosed place, may between sunrise and sunset, - '
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
6. The learned Counsel for the petitioner has, at the very outset, on the basis of the provisions of the aforesaid section vehemently argued that any such officer...of the Central Government as is empowered in this behalf by general or special order of the Central Government or any such officer...of the State Government as is empowered in this behalf by general or special order of the State Government, may, between sunrise and sunset, detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act, that all the officers named in the alleged recovery memo are of the police department of the State, that there is no general or special order of the State Government empowering / duly authorizing in this behalf all, some or any of them to detain and arrest the petitioner-accused, and that in the absence of the general or special order of the State Government, it can be categorically and emphatically expressed that the mandatory provision of Section 42 of the N.D.P.S. Act has been flagrantly flouted and completely violated and, therefore, this writ petition be allowed in toto for complete non-compliance with the mandatory provisions of the N.D.P.S. Act. It may be mentioned in this very connection that the learned Counsel for the petitioner appears to have ignored and overlooked the Uttar Pradesh Narcotic Drug Rules, 1986 (amended in 1989} for reasons best known to him. Rule 2 reads as under:
7. Amendment of Rules 77 and 79, - In the Uttar Pradesh Narcotic Drug Rules, 1986, for the existing Rules 77 and 79 the following rules shall be substituted namely:
77 Any officer of the Excise Department not below the rank of Inspector or of the Police Department not below the rank of Sub-Inspector or of the Drugs Control Department not below the rank of Inspector or of the Revenue Department not below the rank of Tehsildar may exercise the powers under Section 42 of the Act.
8. This amendment clearly authorizes the police officers named in this case to exercise the powers under Section 42 of the N.D.P.S, Act and, therefore, all the arguments of the learned Counsel for the petitioner-accused in this regard has no substance.
9. The learned Counsel for the petitioner-accused has further argued that the alleged recovery memo is conspicuously silent as to who of the officers actually caught hold of the petitioner-accused, that on whose dictation the alleged recovery memo was written at the alleged place of occurrence, that the first information report is the reproduction / true copy of the alleged recovery memo and that there is nothing in the alleged first information report to reveal who actually handed the alleged recovery memo over to the Head Constable concerned and who actually asked him orally or in writing to write the alleged first information report copying the alleged recovery memo verbatim. The learned Counsel for the petitioner-accused has, at the last but not the least, argued that legally speaking, there is no first information report, that even if it be assumed, just for the sake of arguments that the alleged first information report is a real or legal one, material facts are missing therefrom. In this very connection, he has further argued that the first information report is the foundation on which the structure of a criminal case is built up and if the foundation is weak, the entire structure is bound to fall. All these arguments relate to one or the other facts of the case, which are required to be proved by way of evidence. Such aspect of the matter cannot be expected to be considered in the writ petition.
10. The learned Counsel for the State has on the other hand, argued that the provisions of Sections 42 & 50 of the N.D.P.S, Act have been complied with and that the contentions of the learned Counsel for the petitioner-accused otherwise than this have no substance and, therefore, the petition be dismissed,
11. Having considered the pros and cons of the case and having heard the arguments of the learned Counsel for the parties in support of their respective cases, I arrive at the conclusion without expressing any opinion on the merit of the case that this petition has no force and should be dismissed.
12. The petition is accordingly dismissed.