STATE OF KERALA Vs. BALAKRISHNAN

JUDGEMENT

(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 an earlier decision of the Calcutta High Court in Ajith Kumar v. State (AIR 1961 Cal. 560) while considering the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act (2 of 1949) it was held that the provisions of the Criminal Procedure Code taking cognizance of the offences are not applicable to the Special Courts under the Act. The Special Court is therefore not confined to the statutory methods recognised and prescribed under S. 190 (1) of the Code. The special court can therefore assume cognizance independently of these sections of the Code.