SAM SWAMINATHAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Before the II Additional Sessions Court, Trivandrum (Special Court for Trial of N.D.P.S. Act cases) the petitioner herein raised a contention that instead of the charge under Sections 21 and 22 of the N.D.P.S. Act framed against him, a charge under Section 27 alone can be framed and that after framing of such charge the case be made over to the chief Judicial Magistrate s Court, Trivandrum for summary trial. The petitioner is aggrieved that the sad request was turned down as per the impugned order and it was found that the special court is competent to proceed with the case.

(2.) This has had a chequered career. The seizure in question took place on 10.10,1987. 4mgs. of Pethedine Hydrochloride ampulse, 3 Nitrazepam dormin-10 capsules, broken pieces of Pethedine ampoules, two injection syringes, 12 needles and one sterilizer were seized from the Medical shop by name Gemini Medicals, Trivandrum owned by the accused. Four 50 mgs. pethedine Hydrochloride ampules and 3 Nitrazepam dormin-10 capsules were actually, in the pocket of the pants worn by the accused. After trial, the special court convicted the accused for the offence under Sections 21 and 22 of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of 18 years and fine of Rs. 2 lakhs and in default by the accused thenconviction and sentence were set aside and the case remanded with direction to consider whether the aforesaid quantity would come within the definition of small quantity as contemplated in Sec. 27 of the N.D.P.S. Act. The court found the question against the accused and fresh conviction for offence under Sections 21 and 22 of the Act ensued. The accused was also sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 Lakh. The accused challenged that conviction through Crl.A No.329 of 1990 before this court. It was argued that since the detection of the offence was in 1987, which is prior to the amendment, the accused has a right to be tried before a Magistrate summarily as contemplated in Sec. 36 of the Act as it stood then. This court accepted the contention and found that only charge under Sec. 21 would lie. The matter was therefore remanded to the Judicial First Class Magistrate s Court, Trivandrum for fresh trial and disposal and accordingly it was taken to file as S.T. 107 of 1991 and proceeded with. The accused raised a preliminary objection before that court that the Circle Inspector of Excise was incompetent to file a final report in the case. The learned Magistrate rejected the prayer, which was challenged before this court in Crl.R.P.No.317 of 1992. This court accepted the contention of the accused and passed an order of discharge. This court thereafter made the following observation:

(3.) Shri.V.N. Achutha Kurup, who argued thencase of the revision petitoner, submitted that according to well accepted principles governing criminal trial the forum for trial has to be governed byn the law as it originally stood was the Magistrate of the First Class and the manner of trial as far as offence under Sec. 27 of the Act is concerned was summary trial. It was also contended that since this Court has already 27 of the N.D.P.S.Act vide Annexure C Judgment, all further proceedings initiated by the Special Court for trial of N.D.P.S. Act cases are without jurisdiction. Lastly it is submitted that the Exercise Inspector who detected the offence was not competent to make searches and seizure under the N.D.P.S. Act and for that reason the entire proceedings have to be stopped.