The main legal point established in the judgment is the interpretation of the procedure for taking cognizance of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 without the accused being committed to trial, and the mandatory enquiry under S. 202(2) of the Code of Criminal Procedure in complaint cases triable by the Court of Session.

This reference u/S. 395(2) of the Code of Criminal Procedure has been made by the Additional Sessions Judge, Tellicherry in respect of an order of committal passed by the Judicial Magistrate of the Second Class, Cannanore.

2. The above case arose on a complaint filed by the Superintendent of Special Customs Preventive Unit, Cannanore against one A. Moidu of Azhiyoor u/S. 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the allegation that he was found in unauthorised possession of 7.600 Kgs., of opium for sale on 26-1-1989 at 12-30 hrs. The accused was apprehended while travelling in bus KRZ 3804 from Bombay to Tirur.

3. I heard Shri T. V. Prabhakaran, as amicus curiae and Shri K. Prabhakaran, Senior Central Government Standing Counsel as also the Additional Public Prosecutor.

4. The Sessions Judge has stated, that the officers empowered under the Narcotic Drugs and Psychotropic Substances Act to investigate into offences and prosecute the offenders are not police officers, entitled to file a report or a charge-sheet u/S. 173(2) of the Code of Criminal Procedure, but should file complaint u/S. 190 of the Code of Criminal Procedure and since such a complaint under the above Act will be in respect of an offence triable exclusively by the Court of Session, the Court which takes cognizance of the complaint has to conduct an enquiry in terms of sub-sec. (2) of S. 202, in view of the decision of a Full Bench of this Court reported in Moideenkutty Haji v. Kunhikoya, 1987 (1) KLT 635 : (1987 Cri LJ 1106.) He has pointed out that since the committal court did not conduct the enquiry, the order of committal is illegal. He can neither set it aside in view of the decision in John Samuel v. State of Kerala, 1985 KLT 902, nor send back the records to the committal Magistrate for passing a fresh order after complying with the mandatory legal provisions. He has, therefore, made a reference to this Court u/S. 395(2) of the Code of Criminal Procedure for decision on the following question:

"When a court of session find that the order of the learned Magistrate committing the case instituted upon a complaint in respect of an offence exclusively triable by the Court of Session is vitiated by illegality for the reasons aforesaid, what should be done by the Court of Session and how the Court of Session should proceed further in the case ?".

5. The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) is an enactment to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances (to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the international conventions on narcotic drugs and psychotropic substances) and for matters connected therewith. The Act received the assent of the President on September 16, 1985.

6. Bird's eye view of the relevant provisions of the Act would, indeed, be helpful. S. 36 of Chapter IV of the Act provides for constitution of Special Courts. S. 36A of the Act states that all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special courts than one for such area, by such one of them as may be specified in this behalf, and provides for detention of the accused suspected of the commission of offences under the Act by the Magistrate. Under sub-cl. (d) of S. 36A(1) of the Act -

"a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial."

S. 36B of the Act provides for appeal and revision. S. 36C stat