MISHRI RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for the Union of India, Custom Department. This application has been filed for quashing the order dated 11.1.1989 passed in Custom Case No. 13 of 1988, Complainant Case No. 780 of 1988 by the Chief Judicial Magistrate, Samastipur by which he has taken cognizance against the petitioners under Section 23 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act').

(2.) A complaint case vide Complaint Case No. 780 of 1988 was filed stating therein that on 7.5.1988 a tractor bearing registration no. BEA-2681 with trolley no. BEA-2682 were seized and from that trolley 500 Kgs. of Ganja was recovered and four persons, namely, Santlal Rai, Jay Mangal Rai, Naresh Rai and Mahendra Manjhi were arrested out of whom Jay Mangal Rai confessed that 180 Kgs. of Ganja belonged to him. Santlal Rai confessed 160 Kgs. of Ganja belonged to him and Naresh Rai confessed 160 Kgs. of Ganja belonged to him total being 500 Kgs. of Ganja. It has further been stated that Santlal Rai and Jay Mangal Rai also took the name of Mishri Rai, son of Bhagwan Rai and Jawahar Rai, son of Ram Briksh Rai. The aforesaid complaint petition was filed before the Chief Judicial Magistrate Samastipur and vide order dated 11.1.1989 the court below took cognizance under Section 23 of the Act against all the seven accused persons including the petitioners and the case was transferred to the Court of the Judicial Magistrate, 1st Class, for trial and disposal.

(3.) Learned counsel for the petitioners submits that the Chief Judicial Magistrate who had taken the cognizance was not competent court to take cognizance of the offence as Section 36A(1)(d) of the Act has conferred the power to the Special Court only to take cognizance and try the case. As the Special Court has been dealt with in Section 36 of the Act where it has specially been mentioned that Judge of Special Court shall not be below the rank of Sessions Judge or Additional Sessions Judge and as such the order of cognizance itself is bad in law.