IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.348 of 2009 SHAKUNTALA SHARMA Versus THE UNION OF INDIA with CR. APP (SJ) No.791 of 2009 PRADEEP SINGH @ TILAK RAJ Versus THE STATE OF BIHAR ----------- For the Appellants: Sarvshri Ram Adya Singh, Kumar Shashank Shekhar, Advocates For the Union of India : Shri Binay Kr. Pandey, CGC --------- 3/ 10.5.2011 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. 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 trail 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. 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 2 applicable to a trial before a court of Sessions, i.e., provisions under Chapter XVIII of the Cr.P.C., 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. Section 9 of Cr.P.C. creates courts of Sessions and that indicates that there shall be a court of Sessions presided over by a Sessions Judge in which Additional Sessions Judge may also exercise their jurisdictions. A Sessions Judge is also designated as District & Sessions Judge, who is appointed under Article 233 of the Constitution of India whereas the Presiding Officers of Fast Track Courts are never appointed, they have simply been directed under a particular scheme regarding disposal of pending cases to officiate as Additional District and Sessions Judge. In view of the above provisions, the very trial was without jurisdiction and, as such, the impugned judgment of conviction is hereby set aside. It is hereby ordered that the District and Sessions Judge, West Champaran at Bettiah, on receipt of the lower court records along with a copy of the present order, shall either himself try the case or make over the case for trial to an Additional Sessions Judge, who has been appointed under Article 233 of the Constitution 3 of India on regular basis and who does not enjoy vested powers to preside over a Fast Track Court. It is true that the appellant is in custody. He shall have the liberty to renew the prayer for bail before an appropriate forum. Anil/ ( Dharnidhar Jha, J.)