MOHD AYUB Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has filed this revision against the order dated 10-12-2001, passed by the Special Judge (NDPS, Act) Mandsour in Special Criminal Case No. 69/97 whereby the Trial Court has rejected his application filed under Section 228, Cr. PC read with Section 36-A of NDPS Act for sending the case to the Competent Court for trial according to law.

(2.) SUCCINCTLY the grievance of the petitioner is that he is facing Special Case No. 69/97 pending before the Special Judge Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the "act" for convenience ). From the possession of the petitioner 20 grams Opium was seized which falls within the small quantity, punishable with six months imprisonment as per the amended Act, 2001. In view of the amended Act, 2001, under Section 36-A, Special Courts are having jurisdiction to try the case which are punishable with imprisonment for a term of more than three years whereas in the present case maximum punishment is prescribed only for six months therefore the Special Court, Mandsour has no jurisdiction to try the case and same should be sent to Judicial Magistrate First class for trial. The Trial Court has rejected his application on the ground that under Section 36-A (1) (a) of the Act, there is no prohibition about the trial of offence punishable with less than 3 years and in view of transitional provisions under Section 36-D of the amended Act Special Court has jurisdiction to try the offence.

(3.) FOR deciding the aforesaid controversy it would be apposite to reproduce the amended Sections of 36-A (1) (a), 36-D and 41 of the Act. Section 36-A. Offences triable by Special Courts.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; Section 36-D. Transitional Provisions.-- (1) Any offence committed under this Act on or after commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, which it triable by a Special Court shall, until a Special Court is constituted under Section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 be tried by a Court of Session. (2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 are pending before a Court of Session, then, notwithstanding anything contained in Sub-section (1), such proceeding shall be heard and disposed of by the Court of Session : Provided that nothing contained in this Sub-section shall affect the power of the High Court under Section 407 of the Code of Criminal Procedure, 1973 to transfer any case or class of cases taken cognizance by a Court of Session under Sub-section (1 ). Section 41. Application of this Act to pending cases.-- (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amended by this 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 the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force.