ABDUL KUDUSH KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The present appeal has been preferred by the appellant to question the propriety of the judgment dated 5.8.2008 rendered by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-I, Motihari, Eest Champaran in N.D.P.S. Case No.8 of 2005/25 of 2006 by which the appellant was found guilty of committing the offence under Sections 20(b)(ii) and 23(C) of the Narcotic Drugs and Psychotropic Substances Act. By the order of sentence dated 7.8.2008 the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac, respectively, under both the counts.

(2.) After hearing learned counsel for the appellant Shri Shiva Shankar Sharma and Shri Satyendra. Kumar Jha, learned counsel for the Union of India, what I find is that this Court should not go into the merits of the appeal and the judgment of conviction and order of sentence should be set aside for the following reasons.

(3.) Section 36-A of the Narcotic Drugs and Psychotropic Substances Act declares that offences punishable under the Act except that which is punishable with a term of imprisonment of less than three years have to be tried by the Special Courts. The Special Court has to be established as may appear from the provision of Section 36 of the Act by the State Government for as many local area as could be desirable by it. It appears further from Section 36 of the Act which indicates by virtue of sub-section (2) that Special Courts shall consist of a Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation appended to sub-section (2) indicates that the meaning of "High Court" shall be the High Court of the State in which the Sessions or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. Besides the above explanation, the specific provision of sub-section (3) of Section 36 lays down the qualification of a Judge who could be appointed as Judge of a Special Court and that is that immediately before being appointed as Judge of the Special Court, he must be either a Sessions Judge or an Additional Sessions Judge which also appears from the explanation appended to sub-section (2) to Section 36 of the Act. On further consideration of the provision of Section 36-C what appears is that the provision of the Code of Criminal Procedure, 1973 are fully applicable to the proceedings before a Special Court unless there is specific provision made in the N.D.P.S. Act which is contrary to the general provision of the Cr. P.C. and the same provision further indicates that for the purpose of applying the provisions of the Cr.P.C, the Special Courts shall be deemed to be the Court of Sessions and the person conducting the proceedings before such Court shall be deemed to be the Public Prosecutor. If one could refer to the provision of Section 9 of the Cr. P.C. which creates the Court of Sessions, one may find that the High Court may appoint Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge to exercise jurisdiction in the Court of Sessions. The Sessions Court has always to be presided over by a Judge, i.e., the Sessions Judge. Thus, what appears from the provision of the Cr. P.C. as also the N.D.P.S.Act is that no Judge who had not either been a Sessions Judge or an Additional Sessions Judge, immediately prior to being appointed as a Judge of the Special Court constituted by Section 36 of the Act could have the jurisdiction to try any offence under that p icular Act. It hardly requires to be pointed out that the Office of the Additional Sessions Judge is the creation of Section 9 of the Cr. P.C. and the appointment of such Judge is only through the process of appointment which is contained in Section 36 of the N.D.P.S.Act.