1 Criminal Appeal (SJ) No.868 OF 2008 - - - - Against the judgment of conviction dated 5.8.2008 and order of sentence dated 7.8.2008 passed by Additional Sessions Judge, Fast Track Court-I, Motihari, East Champaran in N.D.P.S.cse No. 8 of 2005/25 of 2006 - - - - ABDUL KUDUSH KHAN son of late Abdul Bachcha, resident of Village + P.S. Bhatani, District Deoria(U.P.) … … Appellant Versus THE UNION OF INDIA … … Respondent For the appellant: Shri Sheo Shankar Sharma, Adv. For the Union of India: Shri Satyendra Kumar Jha, - - - - 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 appellant to question the propriety of the judgment dated 5.8.2008 rendered by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-I, Motihari, Eest Champaran in N.D.P.S. Case No.8 of 2005/25 of 2006 by which the appellant was found guilty of committing the offence under Sections 206(ii) and 23(C )of the Narcotic Drugs and Psychotropic Substances Act. By the order of sentence dated 7.8.2008 the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac, respectively, under both the counts. 2. After hearing learned counsel for the appellant Shri Shiva Shankar Sharma and Shri 2 Satyendra Kumar Jha, learned counsel for the Union of India, what I find is that this Court should not go into the merits of the appeal and the judgment of conviction and order of sentence should 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 of less than three years have to be tried by the Special Courts. 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 area as could be desirable by it. It appears further from Section 36 of the Act which 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 before his appointment as such Judge. Besides the above explanation, the specific provision of Sub- section(3) of Section 36 lays down the 3 qualification of a Judge who could be appointed as Judge of a 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 the same 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 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 the Court of Sessions. The Sessions court has always to be presided over by a Judge, i.e., the Sessions 4 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 a Judge of the Special 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.S.Act. 4. It is too well known to be pointed out that the Additional Sessions Judge-cum- Presiding Officers empowered to preside over the Fast Track Courts are not duly appointed Additional Sessions Judges or the Sessions Judges and they have merely been empowered to officiate in that capacity and have been designated as Additional sessions Judges-cum-Presiding Officer of Fast Track Courts- cum-Additional courts which could never be covered by the terms „Sessions Judge‟ or „Additional Sessions Judge‟. It is thus the reason for the lack of jurisdiction under which the impugned 5 judgment was rendered by the Presiding Officer of Fast Track Court No. I, Motihari, Eest Champarana. 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 Suresh Kumar Singh and having cross-examined him in part by the learned Sessions Judge his further cross examination was recorded by the Presiding Officer of the Fast Track Court who was not duly appointed as Additional Sessions Judge who could have the jurisdiction to try 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 a provision of the Cr. P.C. applicable to proceedings under the N.D.P.S.Act and that specifically speaks that the provision of the Code of Criminal Procedure, 1973 has application to the 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 be set side and the case be remanded to the court below for its retrial. 6 6. Accordingly, the appeal is allowed, the judgment and order of conviction and sentence are set aside. 7. The District and Sessions Judge, Motihari, Eest 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 provision of Chapter XVIII of the Cr. P.C. which is applicable to the trials of cases under the N.D.P.S. Act. 9. The appellant is in custody. He may renew his prayer for bail before the court below which shall be considered in the light of the fact that he has remained in custody for 5 and ½ years and retrial has been ordered by this Court under circumstances pointed out above. ( Dharnidhar Jha, J.) Patna High Court The 3rd May, 2011 Kanth/A.F.R.