VERY IMPORTANT POINT
Narcotics Control Bureau is an authority under NDPS Act, 1985. It is a Department of Central Government and the notification empowering its officers to exercise powers under Sections 36A, 41, 42 and 67 of NDPS Act are valid.

Headnote:(i) Legal Status of NCB-Whether an authority created by or Notification issued by Government of India empowering the officers of Narcotics Control Bureau above the rank of Inspectors to exercise the powers under Sections 41(2), 42(1), 67 and 53 of NDPS Act, 1985-Delhi High Court holding NCB is an authority created by statute-Karnataka High Court holding it is an authority under the Act-Who is right? (Karnataka High Court).
       Held : Having regard to the provisions of the Act we are inclined to agree with the view of the Karnataka High Court. Section 4(1) of the Act does not create the Narcotics Control Bureau. It only authorizes the Central Government to take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. Sub-section 2 of Section 4 enumerates only some of the measures which the Central Government may take. Sub-section 3 empowers and enables the Central Government in its discretion to constitute an authority or a hierarchy of authorities for taking measures with respect to such of the matters referred to in sub section 2, as may be mentioned in the order. The order constituting the authority is required to be published in the Official Gazette. It is therefore apparent on a mere perusal of Section 4 that the Act does not itself create an authority, but empowers the Central Government to do so in its discretion. The authority envisaged by the Section is constituted by the exercise of executive power by the Central Government which notifies its order constituting the authority by publishing the same in the Official Gazette enumerating the powers and functions to be exercised by it, subject to the supervision and control of the Central Government. Thus, the authority is not constituted by the Act, but is constituted by the Central Government by exercise of executive discretion vested in it by the Act. The NCB is therefore not an authority created or constituted by the Act, but an authority created under the Act. (Para 20)
       (ii) Legal status of the NCB-Whether the NCB is a Department of Central Government? (Yes)-Effect-The notification empowering its officers to exercise powers under Sections 36A, 41, 42 and 67 are valid.
       Held : NCB is merely a wing or branch of the Department of Revenue of the Government of India. As we have held earlier, it is not constituted as a distinct legal entity, and therefore has no independent existence, except as a branch or wing of the Department of Revenue dealing with matters entrusted to it by the notified order constituting it. Therefore, the notifications empowering the officers to exercise the powers under Sections 36A, 41, 42 and 67 must be held to be legal and valid. The search and seizure carried out by such officers and the arrests made by them in exercise of such power is authorized and warranted. The complaint lodged by the empowered officer under Section 36A(1)(d) is also authorized. The view that we have taken is supported in principle by the decision of this Court in State of Punjab & others vs. Raja Ram and others : (1981) 2 SCC 66. (Para 25)
       Held consequently : In the result we find that the judgment and order of the High Court of Delhi in Criminal Appeal No. 248 of 1997 is wholly unsustainable and deserves to be set aside. We accordingly allow Criminal Appeal No. 1139 of 2000, set aside the impugned judgment and order of the High Court of Delhi dated 13th December, 2000 and remit the matter to the High Court for its disposal on merits, in accordance with law. In Criminal Appeal arising out of SLP (Crl.) No. 3816 of 2002 we find no merit and the same is accordingly dismissed. (Paras 31 and 32)

JUDGMENT

B.P. Singh, J.-Special Leave granted in S.L.P. (Crl.) No. 3816 of 2002.

2. In both these appeals common questions arise for consideration and hence they have been heard together and are being disposed of by this judgment and order.

3. Criminal Appeal No. 1139 of 2000 has been preferred by the State through the Narcotics Control Bureau and is directed against the judgment and order of the High Court of Delhi at New Delhi dated December 13, 2000 in Criminal Appeal No.248 of 1997. The High Court by its impugned judgment and order quashed the order of conviction and sentence of the respondent passed by the Additional Sessions Judge, Delhi, in Sessions Case No. 73 of 1996 dated 24th May, 1997 and acquitted the respondent of the charge levelled against him under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). It was held that the complaint filed by an authorized officer of the Narcotics Control Bureau (hereinafter referred to as the NCB ) was without authority of law inasmuch as the officers of the NCB could not be authorized to effect search, seizure and arrest under the Act, the NCB not being a department of the Government. Consequently all actions taken by them were illegal since the proceedings taken in respect of the offences under the Act were by officers not legally empowered to do so.

4. In Criminal Appeal arising out of SLP (Crl.) No. 3816 of 2002 the High Court of Karnataka at Bangalore by its judgment and order dated 30th November, 2001 in Criminal Petition No. 669 of 2001 negatived a similar contention urged on behalf of the appellant in that appeal and held that the officers of the NCB could be and were duly empowered under the Act to conduct investigation including the power of search, seizure and arrest. It held that the NCB was not a statutory authority and was indeed a department of the Government. Consequently its officers could be authorised under the Act to perform these functions. Accordingly the Criminal Petition filed by the appellant herein under Section 482 of the Code of Criminal Procedure for quashing the proceeding and the order framing charge was rejected.

5. In Criminal Appeal No. 1139 of 2000 the respondent herein was apprehended by a team comprising of officers of the NCB and on search of his vehicle, after complying with necessary formalities under the Act, a polythene bag was recovered which contained brownish substance which was tested on the spot with the field testing it and tested positive for heroin. The total quantity recovered was 0.980 Kg. The respondent was accordingly prosecuted in Sessions Case No.73 of 1996 and found guilty by the Additional Sessions Judge, Delhi, who sentenced him to rigorous imprisonment for 10 years and a fine of Rs. 1 lakh and in default of payment of fine, to undergo rigorous imprisonment for 6 months for the offence punishable under Section 21 of the Act. The High Court has not considered the case on merit by reference to the evidence on record since it found that the entire proceeding was illegal inasmuch as the search, seizure, recovery of offending articles and arrest of the respondent was done by the officers of the NCB who had no power to take such action and to prosecute the respondent.

6. Section 4 of the Act provides as follows:-

"4. Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc. -(1) Subject to the provisions of the Act, the Central Government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1) the measures which the Central Government may take under the sub-section include measures with respect to all or any of the following matters, namely:-

(a) coordination of actio

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2003 Supreme(SC) 164

VERY IMPORTANT POINTNarcotics Control Bureau is an authority under NDPS Act, 1985. It is a Department of Central Government and the notification empowering its officers to exercise powers under Sections 36A, 41, 42 and 67 of NDPS Act are valid.

Cases Referred (2)

VERY IMPORTANT POINT
Narcotics Control Bureau is an authority under NDPS Act, 1985. It is a Department of Central Government and the notification empowering its officers to exercise powers under Sections 36A, 41, 42 and 67 of NDPS Act are valid.