MAHENDRA BAITHA Vs. STATE OF BIHAR AND ANR.

JUDGEMENT

(1.) This appeal, called out for hearing, appears challenging the judgment passed on account of lack of inherent jurisdiction by the Special Judge due to not following the right procedure of trial of a case under the N.D.P.S.Act. This observation I make after consulting some of the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act ('the Act' for short).

(2.) The offences under the Act are triable by the Special Courts except those which could be punishable for a term up to three years, as may appear from the conjoint reading of the provisions of Sections 36 and 36A of the Act.

(3.) Sec. 36 of the Act is in respect of constitution of the Special Court which reads that the Government may, for purpose of providing speedy trial of the offences under the Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. Sub-section (2) to Sec. 36 points out that a Special Court shall consist of a Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. As regards the meaning of the "High Court", explanation added to sub-section (2) indicates that it could be the High Court of the State in which the Session Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. It is further clarified by sub-section (3) to Sec. 36 that a person, who is likely to be appointed as Judge of the Special Court, must immediately before such appointment, be either a Sessions Judge or an Additional Sessions Judge. Thus, it becomes clear that a Special court has always to be presided over by a Judge who had earlier been a Sessions Judge or an Additional Sessions Judge whose offices are created on account of creation of the court by Sec. 9 Cr. P.C. Sec. 36-C of the Act directs application of the provision of Code of Criminal Procedure to the proceedings before a Special Court and for the purposes of such provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor. Thus, there does not appear any doubt that the provision of Cr. P.C. as regards the trial shall be applicable to the trials before the Special Court when it relates to any offence triable by that particular court constituted under the Act. Chapter XVIII of the Crimial P.C. contains the provisions regarding the trial before the court of Sessions. Thus, the provisions, mutatis mutandis, apply to all trials which are either initiated on the petition of complaint or on the basis of the police report. The, the same procedures have to be followed and applied when the trial is undertaken by a Judge who presides over a Special Court constituted under Sec. 36 of the Act. If in any case, a Judge deviates from the procedures of Chapter-XVIII Crimial P.C., then in that case the whole trial shall vitiate, further vitiating the judgment as passed without proper jurisdiction because not applying the provisions is not exercising the particular jurisdictions which are created by those provisions. To elucidate, the court of Sessions could not have the jurisdiction to try offence, if the offence was not triable by it. If any special law has defined an offence and has prescribed the sentence, and thereby, has also specified the court competent to try such an offence, then the competent court to try the offence has to follow the procedure of the Cr. P.C. while trying such offence. If it does not follow the trial procedures prescribed under the Crimial P.C. and follows the procedure which does not vest in it the competence to try such offences, then the trial is without jurisdiction, in all cases where the procedures of Cr. P.C. have been directed to be followed. All trials are per jurisdiction created by the Cr. P.C. in courts for the trial of offences. The illustration could be had from the provision of Sec. 228 Cr. P.C. which more clearly states that after considering the record of the case as is stated by Sec. 227 Cr. P.C. and hearing the accused and the Public Prosecutor the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not triable by the court of sessions, then he shall part with the record and send it to the Chief Judicial Magistrate or to any other Magistrate competent to try that particular offence. Sec. 228(1) (a) Cr. P.C. creates or takes away the jurisdiction to try the offence by a court of Sessions. It takes away the jurisdiction as soon as an offence appears not exclusively triable by the court of Sessions and it vests the jurisdiction in the Sessions Judge or in other words the court of Sessions when an offence is exclusively triable by it is found made out on facts of the case. Thus, what this Court finds is that if a Judge who was trying the offence under the Act was deviating in not following the provisions of Chapter XVIII Crimial P.C., then he was not exercising the particular jurisdiction created by those provisions in him and, as such, was rendering the judgment which was lacking quorum on account of not following the proper provision.