IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 CRL.REF.No. 5 of 2010() ----------------------- CP.18/2009 of J.M.F.C.-V,KOZHIKODE .................... SUO MOTU PARTIES: --------------- 1. AHAMMEDKUTTY @ KUTTIMON, S/O.MUHAMMED 66/07, VELLARATHODI (H), ERINTINTHODE, CHERUVANNUR 2. S.H.O, BEYPORE POLICE STATION BY PUBLIC PROSECUTOR MR,C.M.NAZER THIS CRIMINAL REFERENCE HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------- Crl.Ref. No. 5 of 2010 -------------------------------------- Dated this the 8th day of June, 2010 ORDER Perused the records including the letter dated 31.3.2010 of the Sessions Court, Kozhikkode. Since the quantity of opium involved in Crime No.39/2007 of the Beypore Police Station is 30 grams which, going by Serial.No.92 of the notification issued under Section 2 vii (a) and xxiii (a) of the N.D.P.S Act, is an intermediate quantity, (small quantity being upto 25 grams) by virtue of Section 18(c) of the said Act, the said offence is punishable with rigorous imprisonment upto ten years and with fine which may extend to rupees one lakh, which is beyond the functional competence of the Magistrate. The Magistrate happened to take cognizance of the offence on the wrong understanding that the offence, which is made out is one punishable under Section 18 (a), which pertains to small quantity of opium. The said cognizance taken was bad. Noticing the illegality, the learned Magistrate converted C.C. Case into C.P case and assigned the number C.P No.18/2009 and as per order dated 17.3.2010 committed the case to the court of Sessions. Since the offence is triable by a Special Crl.Ref. No.5 of 2010 : 2 : Court, there was no question of committing the case to the court of Session under Section 209 Cr.P.C. Hence, the committal order passed by the learned Magistrate is also bad. The order dated 17.3.2010 passed by J.F.C.M Court, Kozhikkode in C.P.No.18/2009 is set aside and the learned Magistrate is directed to deal with the final report in accordance with law to enable the trial of the case by the Special Court under N.D.P.S Act. This Criminal Reference is answered accordingly. V.RAMKUMAR, JUDGE dmb