The main legal point established is that the Sessions Court, empowered under transitional provisions of the NDPS Act and the Abkari Act, has the competence to take cognizance of offences without committal proceedings and that a mandatory enquiry under S.202(2) of the Code is required for offences exclusively triable by the Sessions Court under the Abkari Act.

K.G. Balakrishnan, J.

1. These two criminal references have been referred to the Division Bench, as it was felt that the decision in State v. Moidu, (1990 (2) KLT 275) is in conflict with the decision of the Full Bench reported in Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635).

2. In criminal reference No.5/90 the question that arises for consideration is whether in a complaint filed under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) the Magistrate should conduct enquiry contemplated under S.202(2) of the Code of Criminal Procedure (for short the Code) and commit the case to Sessions Court or whether the Sessions, Court empowered under S.36D to try cases under the N.D.P.S. Act itself is competent to take cognizance of the offence as if it is a court of original jurisdiction. The learned Single Judge in State v. Moidu (1990 (2) KLT 275) held that in a prosecution for offences punishable under the N.D.P.S. Act the Magistrate need not conduct an enquiry under S.202(2) of the Code before committing the case to the Sessions Court.

3. In Rajkumar Karwal v. Union of India (1990 (2) SCC 409) the Supreme Court held that even if an officer is invested under any special law with powers analogous to those exercised by a police officer-in-charge of a police station investigating a cognizable offence, he does not thereby become a police officer under S.25 of the Evidence Act. The Court further held:

"The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under S.173 of the Code. There is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under S.53 of the Act, all the powers of Chapter XII, including the power to submit a report under S.173 of the Code."

So, in the matter of offence punishable under the Act it is not the report under S.173 of the Code that is filed, but a complaint by the investigating agency. However, it is to be noted that in the trial of offences under the Act S.36 of the Act says that there shall be special courts for the trial of the offence under the Act. S.36D says that until a special court is constituted under S.36, any offence committed under this Act or after the commencement of the N.D.P.S. (Amendment) Act, 1983 shall notwithstanding anything contained in the Code be tried by a Court of Sessions. So, the Court of Session shall exercise the powers of a special court until special court under S.36 of the Act is constituted. Under S.37 of the Act it is stated that every offence punishable under the Act shall be cognizable. S.36A(i)(d) further says that a special court may take cognizance of that offence without the accused being committed to it for trial.

4. Regarding the power of the special court to take cognizance the Supreme Court had occasion to consider the same in A.R. Antulay v. R.S. Nayak (AIR 1984 S.C. 718). The Court held:

"The Court of a Special Judge is a court of original criminal jurisdiction. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a court of original jurisdiction enjoys save and except the ones specifically denied.

The Court of a Special Judge, once created by an independent statute, has been brought as a Court of original criminal jurisdiction under the High Court because S.9 confers on the High Court all the powers conferred by Chapters XXXI and XXXIII of the Criminal P.C. 1898 on a High Court as if the Court of Special Judge were a Court of Session trying cases without a ju