CRIMINAL APPEAL No.444 OF 2007 Against the judgement of conviction and order of sentence dated 12th March, 2007 passed by 5th Additional Sessions Judge, West Champaran, Bettiah in Trial No.33 of 2003 -------- RASOOL AZAM @ RAISOOL AZAM @ SUKAT---------Appellant Versus THE UNION OF INDIA THRU.CUSTOM------------Respondent ----- For the appellant:- Sri Suraj Narayan Pd.Sinha,Sr.Advocate. Sri Jitendra Narayan Sinha, Advocate Mrs. Mira Kumari,Advocate. For the Union of India:- Sri Sarvadeo Singh,Advocate. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The solitary appellant is challenging his conviction under Section 20(c)and 23(c)of the Narcotic Drugs and Psychotropic Substances Act recorded by the learned 5th Additional Sessions Judge, West Champaran, Bettiah on 12.3.2007. After hearing the appellant on the same day on the point of sentence the learned trial Judge directed him to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.1,00,000/- each under Sections 20(C) and 23(c) of the N.D.P.S.Act. In case of non- payment of fine of Rs.1,00,000/- imposed as sentence under each of the counts the learned trial Judge has directed the appellant to undergo rigorous imprisonment for further period of one year under 2 each of the two counts and directed the sentence to run concurrently. 2. Though it was not necessary to notice the facts of the case and to narrate it because of the order I am proposing to pass, but so as to having the grasp of the facts, it may be stated that Sapt- Kranti Express was standing in the yard of Narkatiaganj railway station in course of its travel from Delhi down-wards; one of its bogies was inspected and searched by Inspector, Amit Gunjan with some of his constables of the R.P.F. It is alleged that the inspector above named found the appellant traveling on a fake ticket in the name of one Manoj Kumar and was also found in possession of 42 K.G. of Ganja. On questioning, it is alleged, the appellant stated that he was carrying the above quantity of Ganja for being delivered to one Dilip Kumar in Delhi. The appellant was arrested and was brought to R.P.F. post at Narkatiaganj with the seized Ganja on 26.8.2003 at 4.20 P.M. He was put in the lock up in the R.P.F. post. 3. On 27.8.2003, the R.P.F. Inspector informed the complainant, i.e., P.W.5 who was the Customs Inspector, Narkatiaganj circuit. The Custom Superintendent along with the complainant and some others, like the constables and Hawaldar formally 3 seized the recovered Ganja and also formally arrested the appellant. Nothing happened on 27.8.2003 and as per the prosecution case the appellant was kept in the customs office for the whole night and it was stated that a couple of constables were put on duty to keep guard on the appellant who was also handcuffed. However, it turned out in the morning that the present appellant had fled away from custody after dodging the constables on duty. The complaint petition was filed on 19.9.2003, i.e., after about 25 days of the recovery and arrest of the accused upon which the prosecution case was initiated by passing the cognizance order on the same day. As may appear from the records of the lower court, the appellant appeared and surrendered to the court below. 4. The learned Special Judge who had taken up the trial of the appellant was not framing any charge and was proceeding to record evidence as if he was trying the case under Chapter-19 of the Cr.P.C. treating the case to be instituted on a complaint petition. He was recording the evidence under Section 244 of the Cr.P.C. and thereafter proceeded to record the cross-examination of the witnesses as per the provision of Section 246 of the Cr.P.C. On most of the dates on which the evidence 4 under Section 244 Cr.P.C. was recorded the appellant was not present as appears indicated by different orders passed on dates on which the evidence of witnesses under Section 244 Cr.P.C was recorded. 5. While hearing Sri Suraj Narayan Prasad Sinha, learned senior counsel appearing for the appellant and while I was perusing the evidence of P.W.3 Bajrangi Rajak I came across the last line of P.W.3 on identification of the accused and found that the accused was not present and the witness stated that he could identify if he would have been present in court. I looked to the order passed on 9.12.2004 on which date P.W.3 was examined and I found that the accused had not been produced from custody. 6. Many questions cropped up in my mind, first being as to whether the trial procedure which was followed by the learned trial court was the appropriate trial proceeding for trying such a case. If one goes through the provisions of the Narcotic Drugs and Psychotropic Substance Act, specially the provisions of Section 36, then one could find that the trial of offences punishable under the said Act could be held by Special Courts as may be constituted by the government after duly notifying it in the official gazette. Sub-section (2) to the 5 above Section indicates that the Special Court may consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court and the meaning of the High Court was the High Court under whose subordination the Sessions Judge or the Additional Sessions Judge of the special court was working immediately before his appointment as such Judge. This is what the explanation appended to sub-section (2) to Section-36 states. But that does not give any clear idea as to who could be the Judges or what shall be the rank of Judge who could be manning the Special Court. The clarity is obtained when one considers sub-section (3) to section 36 of the Act which reads that a person who is qualified to be appointed as a Judge of a special court must immediately before such appointment be either a Sessions Judge or an Additional Sessions Judge. Thus what appears from the composite reading of the provisions of Section 36 of the Act, the Special Court is necessary to be a court which has to be manned by a Judge who could be in the rank of Sessions Judge or Additional Sessions Judge. This clearly indicates that it could be a Court of Sessions in terms of ordinarily parlance as regards the provisions of the Cr.P.C. Again the provisions 6 of the Cr.P.C. has been made applicable by Section 36(c)of the N.D.P.S. Act except where some special provision has been made by the Act itself. There are some special provisions really made by the legislature for taking care of certain situations like a complaint petition could also be entertained and cognizance order could be passed by the special court as may appear from Section 36-A(1)(d). Likewise, the provisions of Section 167 Cr.P.C. in spite of being applicable to the offence punishable under the act, the period of remand has been extended from a maximum of 90 days to 180 days. There are certain other provisions such as on bail where the general provisions of the Cr.P.C. have never to be followed rather the provisions contained in section 37 have to be followed. Thus, what appears from the above discussion is that the court of Sessions is virtually the court which has been described by the Act as Special Court and the provision for trial of such offences has to be the provisions which have been laid down by the Cr.P.C. in absence of any such provision in the N.D.P.S.Act which has been followed. 7. In addition to the above what I further find is that Section 273 of the Cr.P.C. requires that all evidence taken in the course of the trial 7 or other proceeding shall be taken in presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader. It is needless to point out that the provisions of the Cr.P.C. further require that the accused is necessarily to be produced for hearing evidence being recorded in his presence. As has been just pointed out, on most of the dates on which the prosecution evidence was being recorded, the appellant was not present on account of not being produced from prison. In addition to that the learned trial Judge was proceeding to record the evidence of witnesses and he was recording the evidence treating the trial to be a warrant trial under chapter-XIX of the Cr.P.C. which was never the procedure to be followed. The whole procedure adopted by the learned trial court appears completely vitiating the proceeding because the mandatory provisions of the Cr.P.C. on recording of evidence as also following the procedures appear completely mis-applied by the learned trial Judge as he was adopting a completely different procedure which was not applicable to such trial. In that view of the matter, this court does not have any option than to set aside the judgement of conviction passed by the learned trial Judge after following such an 8 erroneous procedure and remit back the case to the trial court for retrial by following the provisions of chapter-XVIII of the Cr.P.C. applicable to trial before a court of Sessions. 8. This appeal is allowed in terms as indicated above. 9. The accused is in custody, the appellant shall be free to move for bail before the appropriate court. Patna High Court Dated the 4th Of March 2011 Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)