SHAKUNTALA SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) There is no need to enter into the merits of the appeals. Because on a preliminary point of law, re-trial has to be ordered.

(2.) Charges were framed by the Presiding Officer of the FTC-2, West Champaran in Tr. No. 19 of 2005 on 8.6.2006. The basic flaw in the trial was that the case being under Narcotic Drugs and Psychotropic Substances Act (for short the Act'), the offences were not triable by the Fast Track Court. The reasons could be had from different provisions of the Act. As may appear from Section 36 of the Act, the offences under the Act were triable by Special Court if the sentence prescribed under law was above three years of imprisonment.

(3.) The Special Court is constituted by Section 36-C of the Act and sub-section (3) of Section 36-C of the Act indicates that a person shall not be qualified for being appointed as a judge of the Special Court unless, he is, immediately before such appointment, a Sessions judge or an Additional Sessions Judge. In addition to the above Section 36-C of the Act directs that the provisions of trial, which are applicable to a trial before a Court of Sessions, i.e., provisions under Chapter XVIII of the Cr PC, are applicable to the Special Court as the Special Court is 'deemed to be a Court of Sessions' and the person conducting prosecution before the Special Court is also deemed to be a Public Prosecutor. Thus, there could not be any doubt that the Special Court is a Court of Sessions and that Court of Sessions has necessarily to be presided over by an officer who, just before being appointed as a Presiding Judge of such special Court, had been either the Sessions Judge or an Additional Sessions Judge.