Criminal Appeal (SJ) No.211 of 2005 Against the judgment of conviction and order of sentence dated 27.01.2005 and 28.01.2005 passed by Ist Additional District & Sessions Judge, Muzaffarpur in Trial No.08 of 2004. SATYA NARAIN-------------------------Appellant Versus THE UNION OF INDIA------------------Respondent ----- For the appellant:-Sri Arun Kumar Tripathy, Amicus Curiae For the Union of India- Sri Binay Kumar Pandey,C.G.C. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant has appealed against the judgment dated 27.01.2005 passed by the Ist Additional District & sessions Judge-cum-Special Judge, N.D.P.S. Act, Muzaffarpur in Trial No.08 of 2004 by which he was found guilty of committing offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act(N.D.P.S.Act)and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.1,00,000/- else to suffer yet another term for one year of rigorous imprisonment. 2. A truck was intercepted and it was found loaded with pieces of plywoods. Amidst the plywood, 47 packets were found and each packet was found containing ganja. The packets were seized along with 2 the truck and the consigned plywood. The total weight of ganja seized by the complainant who was the Central Intelligence Officer in the Directorate of Revenue Intelligence, Muzaffarpur was 603 K.Gs. A complaint was filed before the Special Judge, Muzaffarpur vide letter no.T.R.No.8/04(D.R.I.Case No.6 of 2001) dated 23.4.2001. The accused(appellant) who was the driver of the vehicle was arrested and he was also forwarded with the complaint petition to the court and was remanded to custody. Cognizance was taken and the accused was put on trial. What appears from the orders passed on different dates by the trial court was that it proceeded to record evidence before charge, i.e., evidence under Section 244 Cr.P.C. This appears from order dated 14.3.2002 and that procedure was followed up to 23.12.2004 when the charges were framed under Sections 20, 23 and 25 of the N.D.P.S. Act after perusal of the evidence recorded under Section 244 Cr.P.C. Thereafter, the court below directed P.W.1 to be summoned for his cross- examination as per the provisions of Section 246 Cr.P.C. Ultimately, after examination of five witnessed during trial by adopting the same procedure just indicated, the learned trial Judge held the appellant guilty and passed the sentences 3 as indicated in the first paragraph of the present judgment. 3. When the appeal was called out for hearing and when I was hearing Sri Arun Kumar Tripathy, appointed as Amicus Curiae by this court in the present appeal and Sri Binay Kumar Pandey, the counsel for the Central Government, I came across the above fact that the whole trial proceeding was erroneous due to not being as per the appropriate provisions of the Cr.P.C. 4. If one could peruse the provisions of the N.D.P.S. Act one could find that Section 36-A provides that the offence punishable under the Act, punishable with imprisonment for a term of more than three years was triable only by the Special Court constituted for the area in which the offence had been committed or where there are more special courts than one for such area by such one of them as may be specified in this behalf by the government. It may further appear from the provisions of Section 36-C that the provisions of the Code of Criminal Procedure, 1973(2 of 1974)(including the provisions as to bail and bonds)was to apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a 4 prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 5. The special court is constituted by Section-36 and the qualification of a Judge who could be appointed as a Judge of the Special Court is indicated by Section-36(3)of the Act which reads that a person shall not be qualified for appointment as a Judge of Special Court unless he, immediately before such appointment, is a Sessions Judge or an Additional Sessions Judge. It may further appear that the Special Court has to be the court of Sessions as regards its functions and this is indicated amply by both the provisions of Section- 36-B and 36 of the N.D.P.S.Act. Thus, it could safely be concluded that a Special Court has always to the court of Sessions and further that the provisions of the Cr.P.C. which may be applicable to trials before the court of Sessions has to be applied inasmuch as the Cr.P.C. has been made applicable in its entirety except where some special provisions have been made by the N.D.P.S.Act as may appear from Section 36 of the said Act. 6. Now coming to the provisions of the Cr.P.C., Chapter-XVIII of it relates to trial before a court of Sessions and provisions have been laid down as to how the trial before a court of Sessions 5 has to be proceeded with. The provision of Chapter- XVIII may indicate that it does not contain any provision for recording of evidence before charge nor there could be any for cross-examination of a witness after framing of the charge. That provision is contained in Chapter-XXI as regards cases instituted otherwise than on police report. This was the fallacy in which the Judge who was trying the case, fell and, thus, carried out a trial under the procedures which were simply not applicable to that particular trial before him. He was a Judge manning the Special Courts and the Special Court was the court of Sessions and the trial had necessary to be proceeded as per the provisions of Chapter-XVIII Cr.P.C. Thus, what this court find is that the whole trial proceeding was vitiated on account of following wrong and inapplicable procedure to try the case. Due to the above account the judgment of conviction could never be sustained in appeal. It is a case in which the court has necessarily to pass an order of rep-trial by setting aside the judgment dated 27.01.2005. Accordingly, the judgment of conviction passed by Ist Additional Sessions Judge, Muzaffarpur in Trial No.08 of 2004 is hereby set aside. The matter is remitted back to the Special Judge, Muzaffarpur for proceeding with the trial 6 from the stage of framing of charges and by following the provisions of Chapter-XVIII of the Cr.P.C. Patna High Court, Dated the 15th day of April, 2011, Brajesh Kumar/AFR ( Dharnidhar Jha,J.)