IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.MC.No. 232 of 2011() ------------------------ CC.228/2010 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE CRIME NO.106/2004 OF KASBA POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- V.P.SADIQUE,S/O.MOOSA,MADHEENA VEEDU, VEILAYIL AMSOM,PUTHIYAKADAVU,KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. SUB INSPECTOR OF POLICE,KASABA POLICE STATION,KOZHIKODE. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.232 of 2011 -------------------------------------- Dated this the 28th day of January, 2011. ORDER Petitioner is accused No.1 in C.C.No.228 of 2010 of the court of learned Chief Judicial Magistrate, Kozhikode arising from Crime No.106 of 2004 of Kasba Police Station, Kozhikode for offences punishable under Sections 4(1), 8 (a) and 7(2)(a) of the Immoral Traffic (Prevention) Act (for short, “the Act”). Petitioner seeks to quash the proceedings against him on various grounds including that the Sub Inspector who is said to have conducted search was not authorised to do so, investigation was conducted by the Assistant Sub Inspector and that final report was filed by the Sub Inspector, all against provisions of the Act and hence per se illegal. In support of the contentions learned counsel has placed reliance on the decisions in Sinu Sainudheen v. Sub Inspector of Police (2002(1) KLT 693) and Radhakrishnan v. State of Kerala (2008(2) KLT 521). It is also the contention of petitioner that even on the materials stated in final report, no offence as alleged is attracted against petitioner. 2. I have heard learned counsel for petitioner and the learned Public Prosecutor. Crl.MC No.232/2011 2 3. The alleged incident was detected by the Sub Inspector, Kasba Police Station, Kozhikode on 19.03.2004. Petitioner and accused No.2 are said to have been arrested from room No.104 of Saravanabhavan Lodge, Kozhikode within the local limits of the Kasba Police Station. The Sub Inspector claimed that he conducted the search as authorised by the Assistant Commissioner of Police, Kozhikode. 4. Short point for decision is whether the search, investigation and final report are vitiated being without authority. Section 15 of the Act states that the search shall be conducted by the Special Police Officer (or the Trafficking Police Officer as the case may be) when he has reasonable ground for believing that an offence punishable under the Act has been or is being committed. Section 2(i) of the Act defines, “Special Police Officer” as a Police Officer appointed by or on behalf of the State Government to be in charge of Police duty within a specified area for the purpose of the Act (for the purpose of deciding this case it is not necessary to refer to the definition of “Trafficking Police Officer” as he is an Officer appointed by the Central Government and no such situation arises in this case). The State Government by notification, SRO No.344/2002 have appointed, within the areas mentioned therein, the Circle Inspectors of Police attached to the Police Stations mentioned in the said notification. Sl.Nos. 149 to 154 relate to various Police Stations in Kozhikode City. Sl.No.150 is Kasba Police Station (the Police Station in question in this case). Going by Sections 2(i) and 15 of the Act and the notification referred to Crl.MC No.232/2011 3 above the Special Police Officer so far as Kasba Police Station is concerned is the Circle Inspector of Police of that Station. Hence, going by Section 15 of the Act search has to be conducted by the Circle Inspector. 5. Section 14 of the Act deals with taking cognizance of the offence and Sub-section (i) states that notwithstanding anything contained in the Code of Criminal Procedure (for short, “the Code”) arrest without warrant may be made only by the Special Police Officer or under his direction or guidance, or subject to his prior approval. In the matter of search or investigation no such authorisation is provided under the Act. It follows that the search and investigation have to be conducted by the Special Police Officer or the Trafficking Police Officer as defined in Sections 2(i) and (j) of the Act . In the present case search was done by the Sub Inspector, investigation was conducted by the Assistant Sub Inspector and final report was submitted, again by the Sub Inspector. In Radhakrishnan v. State of Kerala (supra) this Court held that an officer not below the rank of an Inspector of Police (i.e, the Circle Inspector of Police) alone can be appointed by the State Government as a Special Police Officer. In Sinu Sainudheen v. Sub Inspector of Police (supra) the power of Special Police Officer to depute another officer for arrest is stated (in paragraph 7). In paragraph 11 it is held that the Sub Inspector is not a Police Officer competent to conduct search under Section 15 of the Act because the Section specifically provides that the Special Police Officer or the Trafficking Police Officer is to conduct the search, illegality in conducting search and arrest can be Crl.MC No.232/2011 4 a ground for quashing the proceedings, if it is found that search and arrest were done by the officer not in accordance with the provisions of law and possibility of the case ending in a conviction is not there. 6. In the light of above the search, investigation and submission of the final report are all illegal being against the statutory provisions referred to above and in the circumstances, cognizance taken by the learned Chief Judicial Magistrate is also not legal. Resultantly this petition is allowed. The final report in Crime No.106 of 2004 of Kasba Police Station, Kozhikode, cognizance taken thereon and all proceedings in C.C.No.228 of 2010 of the court of learned Chief Judicial Magistrate, Kozhikode to the extent it concerned petitioner are quashed. THOMAS P.JOSEPH, Judge. cks