RAJEEV Vs. THE STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been facing prosecution under Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act as it stood before the Amendment Act of 2001, on the allegation that he was found possessing, 103 gms of ganja on 31.3.2000. The case is now pending before the Court of Session, Alappuzha as S.C. No. 921 of 2014. In view of the provisions contained in Section 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, the petitioner seeks change of Forum, on the contention that the case will have to be tried by the Court of the Judicial First Class Magistrate having jurisdiction. For easy reference, the main Act is being referred to as 'NDPS Act', and the Amendment Act, 2001 is being referred to as 'Amendment Act'.

(2.) Section 41 of the Amendment Act provides that notwithstanding anything contained in sub-section (2) of Section (1) of the Amendment Act, all cases pending before the courts, or under investigation, at the commencement of the Amendment Act, shall be disposed of in accordance with the provisions of the Principal Act as amended by the Amendment Act, and accordingly, any person found guilty of any offence punishable under the Principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence.

(3.) By way of the Amendment Act 2001, the act of offence of possession, or otherwise dealing with narcotic drugs and psychotropic substances including ganja, stands categorised quantity-wise. After the amendment, the matter is quantity-wise dealt with, like small quantity, commercial quantity, and intermediate quantity in between small quantity and commercial quantity. Possession of ganja up to 1 kg is now punishable under Section 20(b)(ii)(A) of the NDPS Act, and the offence is now triable by the Judicial First Class Magistrate having jurisdiction. Before the Amendment Act, 2001, even cases involving such small quantity were triable by the Special Court or the Court of Session as the case may be. In this case, the accused was found possessing small quantity of ganja on 31.3.2000, when the Principal NDPS Act stood unamended. At that time, the offence alleged against the petitioner was triable by the Special Court or the Court of Session as the case may be. But now, after the 2001 amendment to the Principal Act, such offences are triable by the Judicial First Class Magistrate having jurisdiction. That is why the petitioner now seeks orders for change of trial Forum. Right it is, that if the offence is tried by the Judicial First Class Magistrate Court, the convicted accused can prefer appeal before the Court of Session, and if he failed any appeal, he can come before the High Court also by way of revision. But if the offence is tried by the Special Court or the Court of Session, the accused will have only one stage to challenge the conviction. But in such matters, the consideration cannot be the right of appeal, or the different options to challenge the conviction. We must be strictly governed by the provisions of the law regarding the trial procedure and the Forum for trial.