VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE matters came up before us on reference made by a learned Single Judge. The question raised is whether the complaint filed by an excise Inspector for an offence under the Narcotic Drugs and Psychotropic substances Act, 1985, hereinafter referred to as "the N. D. P. S. Act", is maintainable or not.

(2.) THE short facts in Criminal Appeal 95 of 1991 are as follows. On 19-12-1989, a Preventive Officer of the Excise Department seized 500 gms. of Ganja kept in 174 packets and another quantity of 20 gms. from the possession of the accused. Consequently, Preventive Officer arrested the accused. After complying with the formalities, a complaint for offence under section 20 (b) (i) of the N. D. P. S. Act was filed before the Judicial First Class magistrate, Muvattupuzha. THE learned Magistrate entertained that complaint as c. P. 2 of 1990. It was then committed to the Sessions Court, Ernakulam, where it was numbered as S. C. 125/1990. In support of the complaint, prosecution examined P. Ws. I to 5, proved Exhibits P1 to P6 and got MOs. I to 4 marked. After appreciating the evidence, learned Sessions Judge convicted the accused for the offence under section 20 (b) (i) of the N. D. P. S. Act. He was thereupon sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs. 20,000/ -. In default of payment of fine, he was directed to suffer simple imprisonment for a further period of 8 months. Accused challenges the conviction and sentence.

(3.) SECTION 36-A (1) (d) of the N. D. P. S. Act reads: "notwithstanding anything contained in the Code of criminal Procedure. 1973 (2 of 1974 ). (d) a Special Court may. upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made-by an officer of the Central Government or a State Government authorised in this behalf. take cognizance of that offence without the accused being committed to it for trial". This provision makes it clear that a Special Court may take cognizance of the offence on a police report. So also Special Court may take cognizance of the offence on a complaint made by an officer of the Central government or State Govt. authorised by the said Government to file the complaint. If the Excise Inspector who filed the complaints in the above-mentioned cases were not specifically authorised by the State Government to file the complaint. the complaints filed by them cannot be treated as valid complaints coming within the purview of S. 36-A (1) (d) of the N. D. P. S. Act. This issue was dealt with by a Division Bench of this Court in Prabhakaran v. Excise circle Inspector (1992 (2) KLT 860 =1992 (2) KLJ 880 ). That Bench took the view that Excise Circle Inspector in that case was not authorised by the Government of Kerala under S. 36-A (1) (d) of the Act to file the complaint. Consequently. it was said that the Court of Sessions or Special Court has no jurisdiction to take cognizance of the offence under the N. D. P. S. Act on such a complaint. The correctness of this decision was not challenged before us. With respect, we agree with the above conclusion. The consequence is that Excise Inspectors who filed the complaints in these cases had no authority to file such a complaint. The result is that the Sessions Court or the Special Court had no jurisdiction to take cognizance of the same. They could not have framed charge against the accused. The charge framed by them was without jurisdiction. The trial. which followed the said charge. must be treated as nonest, because it was done without jurisdiction. If the trial was one held without jurisdiction. it cannot end in cither conviction or acquittal. The court below ought to have discharged the accused under S. 227 of the Code of Criminal Procedure. In view of what has been stated above Criminal Appeal 95/1991 is disposed of by discharging the appellant. He must be released forthwith. if his detention is not required in any other case. Criminal r. C. 62/1991 is disposed of by setting aside the order of acquittal passed by the learned Sessions Judge and accused is discharged. Since the appellant in criminal Appeal 95/1991 has been discharged on the ground that the Sessions court/special Court had no jurisdiction to take cognizance of the complaint. the contentions raised by him based on S. 42 of the N. D. P. S. Act are not considered by us. The Criminal Appeal and Criminal Revision Case are disposed of in the above terms. . .