Criminal Appeal (SJ) No.372 OF 2008 - - - - Against the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court-I, Motihari, in N.D.P.S. Case No. 14 of 2005. - - - - - BIRENDRA MISHRA son of Chirkut Mishra, Village Jaitapur, Police Station Palnama, District Motihari … … Appellant Versus THE UNION OF INDIA … … Respondent For the appellant: Shri ArunKumar Tripathi, A.C. For the Union of India: Shri Binay Kumar Pandey,C.G.C. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- This jail appeal arises out of the judgment and order dated 22.12.2007 passed by the Presiding Officer of Fast Track Court-I, Motihari, in N.D.P.S. Case No.14 of 2005( Union of India through S.K.Sinha, Superintendent, Custom(P), Sugauli, Vs. Birendra Mishra). As may appear from the title head of the judgment and from the designation of the Presiding Officer, he was an Additional Sessions Judge-cum- Presiding Officer, Fast Track Court-I, Motihari. As per the provision of Section 36A(1) of the Narcotic Drugs and Psychotropic Substances Act the offences under the N.D.P.A.Act which were punishable with a sentence of more than three years was to be tried by the Special Court constituted under the Act. As regards the constitution of the Special Courts, 2 the relevant provision is Section 36 which reads as under: “ Constitution of Special Courts-(1) The Government may, for the purpose of providing speedy trial of the offences under this 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. (2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation- In this sub-section, “High Court” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appoint, a Sessions Judge or an Additional Sessions Judge.” As may appear from the above provision, the Government by issuing notification in the Official Gazette is required to constitute the Special Courts and the Judge of that Special Court has to be appointed by the Government with the concurrence of the Chief Justice of the High Court. As regards the meaning of the “High Court”, it is the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such a Judge. It is further 3 clarified by sub-section(3) of the above Section as to what could be the qualifications of a Judge for being appointed as the Judge of a Special Court and that provision indicates that the Judge who was 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. As regards the application of the Code of Criminal Procedure, 1973, the relevant provision is contained in Section 36-C which speaks that except in cases which are governed specially by the provisions of Narcotics and Psychotropic Substances Act, general provisions of the Cr.P.C. shall apply to the proceedings before the Special Court which court shall be deemed to be the court of Sessions and the person who may conduct the proceedings before such a court shall be deemed to be the Public Prosecutor. It hardly requires to be pointed out that a Presiding Officer of the Fast Track Court has merely been authorized to officiate as an Additional Judge meaning thereby, he has not been appointed under the provisions of Article 233 of the Constitution of India and has further not been designated as Sessions Judge or Additional Sessions Judge. In that view of the matter, the 4 offence triable under the N.D.P.S. Act could not be tried by any Fast Track Court which has been established in the State of Bihar. 2. The lower court record indicates that the charges were framed by the learned Sessions Judge, Motihari on the 2nd July, 2002 and evidence was record by him up to 27.7.2005 on which date P.W.1 was examined, cross-examined and discharged. P.Ws. 2,3,4,5,6,7 and 8 were examined by the Presiding Officer of the Fast Track Court which court delivered the judgment also. The proceedings from 29.11.2005 on which date the deposition of P.W. 2 was recorded till the date of judgment by the Fast Track Court appears without jurisdiction and, as such, those proceedings are hereby quashed as carried out or passed in complete lack of jurisdiction. 3. In the result, this appeal is allowed and the judgment of conviction and order of sentence passed on 22.12.2007 is hereby set aside. However, the matter is remanded back for retrial in the light of the illegality just pointed out. 4. The learned Sessions Judge, Motihari, is directed to either try N.D.P.S. Case No.14 of 2005 himself or make over the same for trial to any Additional Sessions Judge whose appointment has 5 been made after observing the process of appointment as per Article 233 of the Constitution of India who shall record evidence of the witnesses further from P.W. 1 and shall go on to dispose of the case as per the provisions of law. 5. The appellant is in custody since 2.3.2005. He shall be produced before the learned Sessions Judge, Motihari. 6. The office of the Court is directed to remit back the lower court records to the learned Sessions Judge, Motihari immediately. 7. The appellant, if so advised, may pray for regular bail before the court below as also before this Court, if occasion so requires. ( Dharnidhar Jha, J.) Patna High Court The 2nd May, 2011 Kanth/A.F.R.