1 Criminal Appeal (SJ) No.277 OF 2010 - - - - Against the judgment of conviction dated 25.1.2010 and order of sentence dated 3.2.2010 passed by the Sessions Judge, Muzaffarpur, in Custom(N.D.P.S.Case No. 60 of 2007-2008. - - - - MAHENDRA BAITHA, son of Sri Jogi Baitha alia Yogi Baitha, resident of Mohalla Chitpatti, P.S. Motihari Town,District East Champaran … … Appellant Versus 1. THE STATE OF BIHAR 2. The Union of India, through its Assistant Commissioner, Custom Preventive Division, Muzaffarpur … … Respondents For the appellant: Shri Ram Adya Singh, Adv. Shri Pramod Ranjan,Adv. For the respondent: Shri Binay Kumar Pandey, CGC. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- This appeal, called out for hearing, appears challenging the judgment passed on account of lack of inherent jurisdiction by the Special Judge due to not following the right procedure of trial of a case under the N.D.P.S.Act. This observation I make after consulting some of the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act („the Act‟ for short). 2. The offences under the Act are triable by the Special Courts except those which could be punishable for a term up to three years, as may appear from the conjoint reading of the provisions of Sections 36 and 36A of the Act. 2 3. Section 36 of the Act is in respect of constitution of the Special Court which reads that the Government may, for purpose of providing speedy trial of the offences under the Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. Sub-section (2) to Section 36 points out that a Special Court shall consist of a Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. As regards the meaning of the “High Court”, explanation added to sub-section(2) indicates that it could be the High Court of the State in which the Session Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. It is further clarified by sub-section(3) to Section 36 that a person, who is likely to be appointed as Judge of the Special Court, must immediately before such appointment, be either a Sessions Judge or an Additional Sessions Judge. Thus, it becomes clear that a Special court has always to be presided over by a Judge who had earlier been a Sessions Judge or an Additional Sessions Judge whose offices are created on account of creation of the 3 court by Section 9 Cr. P.C. Section 36-C of the Act directs application of the provision of Code of Criminal Procedure to the proceedings before a Special Court and for the purposes of such provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor. Thus, there does not appear any doubt that the provision of Cr. P.C. as regards the trial shall be applicable to the trials before the Special Court when it relates to any offence triable by that particular court constituted under the Act. Chapter XVIII of the Cr.P.C. contains the provisions regarding the trial before the court of Sessions. Thus, the provisions, mutatis mutandis, apply to all trials which are either initiated on the petition of complaint or on the basis of the police report. The, the same procedures have to be followed and applied when the trial is undertaken by a Judge who presides over a Special Court constituted under Section 36 of the Act. If in any case, a Judge deviates from the procedures of Chapter- XVIII Cr.P.C., then in that case the whole trial shall vitiate, further vitiating the judgment as passed without proper jurisdiction because not 4 applying the provisions is not exercising the particular jurisdictions which are created by those provisions. To elucidate, the court of Sessions could not have the jurisdiction to try offence, if the offence was not triable by it. If any special law has defined an offence and has prescribed the sentence, and thereby, has also specified the court competent to try such an offence, then the competent court to try the offence has to follow the procedure of the cr. P.C. while trying such offence. If it does not follow the trial procedures prescribed under the Cr.P.C. and follows the procedure which does not vest in it the competence to try such offences, then the trial is without jurisdiction, in all cases where the procedures of Cr. P.C. have been directed to be followed. All trials are per jurisdiction created by the Cr. P.C. in courts for the trial of offences. The illustration could be had from the provision of Section 228 Cr. P.C. which more clearly states that after considering the record of the case as is stated by Section 227 Cr. P.C. and hearing the accused and the Public Prosecutor the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not triable by the 5 court of sessions, then he shall part with the record and send it to the Chief Judicial Magistrate or to any other Magistrate competent to try that particular offence. Section 228(1) (a) Cr.. P.C. creates or takes away the jurisdiction to try the offence by a court of Sessions. It takes away the jurisdiction as soon as an offence appears not exclusively triable by the court of Sessions and it vests the jurisdiction in the Sessions Judge or in other words the court of Sessions when an offence is exclusively triable by it is found made out on facts of the case. Thus, what this Court finds is that if a Judge who was trying the offence under the Act was deviating in not following the provisions of Chapter XVIII Cr.P.C., then he was not exercising the particular jurisdiction created by those provisions in him and, as such, was rendering the judgment which was lacking quorum on account of not following the proper provision. 4. I have already pointed out, by reverting to different provisions of the Act that with the exception contained in Section 36A of the Act, the offences under the Act are triable by a court of Sessions which is the Special Court created by Section 36 of the Act. As such, any Judge who 6 presides over that court and undertakes the trial of any offence which is made triable by the Special Court has necessarily to follow the provisions of Chapter XVIII Cr. P.C. 5. While I was perusing the deposition sheets of different witnesses which were recorded by the Sessions Judge-cum-Special Judge, Muzaffarpur, I came across that the witnesses, like, P.Ws. 1 to 9 were examined as per the provision of Section 244 Cr. P.C. That provision relates to trial before a Magistrate in respect of cases instituted otherwise than on police report, that is to say, on a complaint petition. Another provision contained in Section 246 Cr. P.C. requires that after having recorded the evidence of witnesses under section 244 Cr. P.C. if the court has decided to frame charges under that particular provision, it shall call upon the complainant to produce his witnesses for cross-examination. It further creates a right in an accused to exercise his choice as to which witness he wanted first to cross-examine. Thus, what I find is that the learned Sessions Judge-cum-Special Judge, Muzaffarpur, who was working in that capacity from 20.2.2008 to 27.5.2009 while recording the evidence of P.Ws. 1 to 9 was following the wrong 7 provision of Section 244 Cr. P.C. and was simply departing from the trial procedures necessary to be followed and which are contained in Chapter XVIII Cr.P.C. which Chapter was only applicable by virtue of Section 36-C of the N.D.P.S.Act. If the whole of the trial was without jurisdiction then the judgment rendered by the learned Sessions Judge could not be sustained as the same is afflicted by inherent lack of jurisdiction. Considering the above, it could not be said that the judgment was passed under the proper jurisdiction of trial court. 6. These are some of the reasons which I visualize while judging the judgment and sentence passed in Customs(N.D.P.S.) Case No. 60 of 2007-08 passed on 25.1.2010/3.2.2010 by which the present appellant was found guilty of committing offences under Section 20(b)(ii) C of N.D.P.S.Act and the same are hereby set aside. The case is remitted back to the lower court for recording the evidence of all witnesses except that of P.W.10. 7. As regards the evidence of P.W.10 that appears properly recorded under the proper provision of law and that evidence is left intact to be used in the retrial which is hereby ordered 8 on account of the judgment of conviction and order of sentence being set aside. 8. In the result, the appeal is allowed by setting aside the judgment and order of sentence and the case is remitted back for retrial in the terms as indicated above. ( Dharnidhar Jha, J.) Patna High Court The 19th May, 2011 Kanth/A.F.R.