REFERENCE MADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Principal Judge, Bombay City Civil Court and Sessions Judge, Bombay, has forwarded this reference made by Shri H. S. Ghare, Additional Sessions Judge, Bombay, under S. 395 (1) and/or S. 395 (2) of the Criminal Procedure Code read with Chapter XVII, para 10 of the High Court Criminal Manual. The order of reference is dated 6/04/1992 (Annexure A ). The order of reference reads thus :-"a. suo motu reference is being made under S. 395 (1) and/or S. 395 (2) of the Code of Criminal Procedure (1974) in all cases pending before this Court No. 24 in which cognizance has been taken by the Court of Sessions before 4/01/1991 to Hon'ble High Court on the question :-

(2.) BEFORE we deal with the rival contentions it would be appropriate to set out a few more facts which are germane to the decision on this reference. The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') received assent of the President of 6/09/1985 and was published in the Gazette of India- Extraordinary, Part II, S. 1 dated 16/09/1985. It is not disputed before us that after enforcement of the Act and until S. 36 of the Act came to be substituted by Act 2/1989, all complaints were required to be filed before the. Magistrate of First Class and he was required to commit such eases for trial to the Sessions Court, except those falling under Ss. 26, 27 and 32 of the Act, which are triable by the Magistrate summarily in terms of unamended S. 36 of the Act. Act 2/1989 came into force on 29/05/1989. At this stage, it may be stated that S. 36 came to be substituted by new Sections by Act No. 2 of 1989. The new Sections are 36, 36a, 36b, 36c and 36d. Act 2 of 1989 brought about a substantial change to which reference will be made shortly.

(3.) IT is not disputed before us that the Government of Maharashtra constituted two special Courts for Bombay on 4/01/1991 vide Notification No. 4089/789 (III)-XI. By another notification dated 6/04/1991, Shri Y. U. Pathan, the then Additional Sessions Judge, Bombay, was appointed as Judge of the Special Court constituted under S. 36 (1) of the Act. From the order of reference it appears that all cases pending and/or cognizance of which was taken by the Court of Session, were transferred to Shri Pathan who presided over Court Room No. 24. Shri Y. U. Pathan retired on 12/02/1992 and in his place, Shri Ghare is appointed to preside over Court No. 24 with effect from 24/02/1922. In July 1991, 3 more Special Courts were constituted by the Government of Maharashtra and they are presided over by the following Additional Sessions Judges, Bombay : 1)Shri B. M. Gupta - Court No. 2 4/07/1991. 2)Shri S. K. Shah-Court No. 25 - some time in July 1991. 3)Shri J. W Singh - Court No. 40 1991. This is how these four Special Courts constituted under S. 36 (1) of the Act are functioning in Bombay.