Full Judgment
K.L. Issrani, J.
1. In the present revision petition, a preliminary legal point has been raised by the learned counsel for the petitioner that in this case on 17.11-1885 soma quantity of opium was said to have been seized from the possession of the petitioner and he was prosecuted and convicted Under Sections 9(a) of the Opium Act though in fact the provisions of the Opiurn Act stood repealed after coming into force of the Narcotic Drugs and Psychotropic Substances Act, 1986 (for short, 'N.D.P.S. Act, 1985') with effect from 14-11 -1985 as per Notification No. S.0. 821 (E) dated 14th November, 1985. The learned counsel for the petitioner places reliance on 1993 (II) OLR 591 (State of Orissa v. Hari Behera and Anr.) which was on a reference Under Section 395 Cr PC to decide :
'(i) Can the Officers of the Excise Department submit PR under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 without the authority of the State Government ?
(ii) Can the action taken in the aforesaid two cases by the Judicial Magistrate, First Class, Daspalla be held as valid ?'
The reference was not answered because it was not moved by the Court as per the provisions of Section 395 Cr PC, However, on the question regarding the validity of the action taken by the Magistrate, this Court held ;
'So far as Opium Act, 1857 and 1878 are concerned, they have been repealed after coming into force of the Act with effect from 14-11-1985 i.e. the date appointed by the Central Government as per Section 1 (3) of the Act in terms of Section 82(1) of the Act. Learned J.M.F.C, was not justified in taking action under the provisions of the repealed Acts.'
But, the effect of Sub-section (2) of Section 82 of the N.D.P.S. Act, 1985 was not considered in that judgment.
2. Sub-section (2) of Section 82 of the N.D.P.S. Act, 1985 reads as under :
'82. Repeal and savings.
(1) xx xx(2) Notwithstanding such repeal anything done or any action taken or purported to have been done or taken under any of the enactments repealed by Sub-section (1) shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act,'
3. Now it is to be seen, whether the action taken by the learned Magistrate under the repealed Act shall be deemed to have been taken under the N. D.P.S. Act, 1985 if the provisions are not inconsistent . with the provisions of the Opium Act.
4. This Court in *74 (1992)CLT 18(Sk. Sakaout and Ors. v. State of Orissa) dealt with this provision also and its effect and held that it, therefore, follows that with effect from 14-11-1985 the Opium Act stood repealed and no action under the Opium Act had been taken prior to its repeal by Sec, 82. Hence the procedure under the N.D.P.S. Act, 1985 was applicable.
5. In the present case also, the learned Additional Standing Counsel for the State does not dispute this position. She also does not dispute this fact that on the date of occurrence, the officer who took action by way of arrest, investigation, etc. had not been empowered to do so by a notification issued by the State Government under the N.D.P.S. Act, 1985.
6. In view of the legal admissions by the State, it is held that the proceedings against the petitioner under the repealed Opium Act vitiates the trial. It is, therefore, quashed Consequently, the orders passed by the Courts below are set aside. The surety bonds and bail bonds furnished by the petitioner are discharged.