M. S. A. Siddiqui,j.

( 1 ) BY this petition under Section 482 Cr. P. C. , the petitioner seeks quashing of the order dated 24. 11. 1995 passed by Shri S. M. Aggarwal, Additional Sessions Judge, New Delhi.

( 2 ) BRIEFLY stated, the facts giving rise to this petition are that somewhere in 1987 the Narcotics Control Bureau received secret information about smuggling and drug trafficking activities of the petitioner and his associates namely Jasbir Singh Sandhu, Sukhdev Singh Sandhu, Dev Singh Chahal, Narender Vishnoi, Aziz Ahmed and Smt. Shoma Abionkar. Around 17. 11. 1987, an information was received by the Narcotics Control Bureau that two separate consignments of heroin had been despatched from Bombay to USA and the petitioner had been deputed for their disposal in the USA. As per prosecution case, the accused Jasbir Singh gave certain directions to the petitioner on telephone regarding disposal of the contraband and the said telephonic conversation was intercepted and recorded on a tape by the Narcotics Control Bureau. On 20th November, 1987 officials of the Drug Enforcement Administration (USA) seized 9. 5 kgs. of heroin from two Indians and one Italian National. On receipt of the said information, officials of the Narcotics Control Bureau, Delhi rounded up Narender Bishnoi, Devender, Aziz Ahmad, Mrs. Shoma Abianker and the petitioner and recovered 2. 5 kgs of heroin at Bombay. On a search of the accused Jasbir Singh s residence at Delhi, certain incriminating documents relating to the drug trafficking activities of the accused Jasbir Singh were seized. Thereafter, a complaint under Sections 21/23/29 of the Narcotics Drugs and Psycotropic Substances Act 1985 (for short the Act ) was filed against the accused persons including the petitioner.

( 3 ) ON 23. 11. 1987, the petitioner made an application to the Narcotic Control Bureau for the grant of pardon and on 19. 4. 1990, he filed similar application before the Additional Sessions Judge which was rejected vide orders dated 4. 10. 1990. Thereafter, the petitioner gave to the Narcotic Control Bureau a transcript of his recorded telephonic conversation with the accused Jasbir Singh. On 18. 12. 1990, the petitioner made an application to the Director General of the Narcotics Control Bureau for grant of immunity from prosecution. By the order dated 18. 8. 1992 the Government of India, in exercise of the power conferred under Section 64 (1) of the Act tendered to the petitioner the immunity from prosecution on the condition of his making full and true disclosure of the whole circumstances relating to the alleged offences.

( 4 ) ON 24th February, 1993 the Public Prosecutor appearing for the Narcotics Control Bureau filed an application under Section 311 Cr. P. C. before the Additional Sessions Judge seeking leave to examine the petitioner as a witness in the case. By the impugned order dated 24. 11. 1995, the learned Additional Sessions Judge rejected the application holding that the Central Government had no power to tender to the petitioner the immunity from prosecution under sub-Section (1) of Section 64 of the Act. Aggrieved thereby the petitioner has come up before this Court under Section 482 Cr. P. C.

( 5 ) THE question that arises for consideration in this petition is :-

WHETHER the government is competent under sub-Section (1) of Section 64 of the Act to tender immunity from prosecution to an accused person in respect of an offence under the Act when the Court before whom the trial had been pending had rejected a request to tender pardon under the provisions of the Code of Criminal Procedure?

( 6 ) WHILE interpreting the provisions of Section 64 of the Act, and the provisions of Sections 306 and 307 Cr. P. C, the learned Additional Sessions Judge took the view that the provision of Section 64 of the Act can be invoked only before the prosecution is launched against the accused person and the said power comes to an and on taking of cognizance of the offence by the Court. It

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