1 Criminal Appeal (SJ) No.509 OF 2008 - - - - Against the judgment of conviction dated 3.5.2008 and order of sentence dated 9.5.2008 passed by the Additional Sessions Judge, Fast Track Court-III, Bettiah, in Trial No.32 of 2003, arising out of Customs Case No.VIII(10)35/BTH/2003 under N.D.P.S.Act. - - - - 1. SUBBA RAUT, son of late Doma Raut, resident of Village Sarakiya Tola, P.S. Balther, District West Champaran. 2. Rajdeo Yadav, son of Laljee Yadav, resident of Village Jagiraha, P.S.Balther, District West Champaran … … Appellants Versus THE STATE OF BIHAR … … Respondent For the appellants: Shri N.A.Shamsi,Adv. For the State: Shri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The present appeal has been preferred by the two appellants to question the vires of the judgment dated 3.5.2008 rendered by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-III, Bettiah, West Champaran in Trial No.32 of 2003, arising out of Customs Case No.VIII(10)BTH/2003 by which the appellants were found guilty of committing the offences under Sections 20(b)(ii)(C) and 23 of the Narcotic Drugs and Psychotropic Substances Act. By order of sentence dated 9.5.2008 passed consequently upon the order of conviction, both the appellants were 2 directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac. 2. After hearing learned counsel for the appellant Shri N.A.Shamsi and Shri S.N.Prasad, learned A.P.P. for the State, what I find is that this Court is not required to go into the merits of the appeal and the judgment of conviction and order of sentence have to be set aside for the following reasons. 3. Section 36A 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 up to three years have to be tried by the Special Court. 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 areas as could be desirable by it. This appears from Section 36 of the Act which further 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 3 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 the 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 that 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 Judge 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 Court of 4 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 Special Judge of the Court constituted by Section 36 of the Act could have the jurisdiction to try any offence under that particular 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.A.Act. 4. It is too well known to be pointed out that the Additional Sessions Judges-cum- Presiding Officers empowered to preside over the Fast Track Court are not duly appointed Additional Sessions Judges or the Sessions Judges and they have merely been authorized to officiate in that capacity and have been designated as Additional sessions Judges-cum-Presiding Officers of Fast Track Courts which could never be covered by the terms „Sessions Judge‟ or „Additional Sessions Judge‟. It is one limb of lack of jurisdiction under which the impugned judgment was rendered by the 5 Presiding Officer of the Fast Track Court No. III, West Champarana, Bettiah. 5. While perusing the evidence of the witnesses, specially that of P.W. 1, what was found was that after having recorded the evidence in examination in chief of P.W. 1 Dinesh Kumar, the Additional Sessions Judge who was duly appointed as such and who could have the jurisdiction to try the case also was adopting altogether a wrong procedure for trying the case. He had recorded the evidence under Section 244 Cr. P.C. and that indicates that he had not followed the provision of Chapter XVIII of the Cr. P.C. which relates to trial before the court of Session. I have already referred to the provision of Section 36-c of the N.D.P.S. Act which makes provision of the Cr. P.C. applicable to proceedings under the N.D.P.S.Act and that provision specifically speaks that the provision of the Code of Criminal Procedure, 1973 has application to the trials of cases under the N.D.P.S.Act also. This is yet another defect in the trial of the case which requires that the judgment impugned herein could be set side and the case be remanded back to the court below for its retrial. 6 6. Accordingly, the appeal is allowed, the judgment of conviction and order of sentence are set aside. 7. The District and Sessions Judge, Bettiah, West Champaran, is directed to retry the case either himself or make over the trial to any competent Judge who could be covered by the discussions made just hereinbefore. 8. The trial court shall proceed to examine the witnesses afresh on account of the defect in examining the witnesses on account of adopting the procedure of Chapter XVIII of the Cr. P.C. which is not applicable to the case of N.D.P.S. Act as the same is applicable to trial by a Magistrate of a case instituted otherwise on police report, that‟s to say on complaint petition. 9. The two appellants are on bail. They shall be allowed to renew that prayer in the court below. If the court below so desires, it may ask the appellants to execute fresh bonds in the sum and character as to its satisfaction. ( Dharnidhar Jha, J.) Patna High Court The 3rd May, 2011 Kanth/A.F.R.