IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.402 of 2006 Against the judgment and order of conviction and sentence dated 18.1.2006 passed by Shri Manzur Hassan, Additional District and Sessions Judge, P.O. FTC – 3, East Champaran, Motihari. ================================================ Md.Sattar, son of Sheikh Sarif Mian, House No. 6, Ward No. 19, Jail Road, Birganj, Nepal .... .... Appellant/s Versus The Union Of India .... .... Respondent/s ================================================ Appearance : For the Appellant/s : Smt. Rina Sinha, Advocate (Amicus Curiae) For the Respondent/s : Shri Sahnod Kumar Sharma, CGC ================================================ P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. Heard learned counsel for the parties. 2. The name of Shri Dinesh Prasad Sharma appears as amicus curiae, who is reported not available today in the court premises. Because this appeal is to be decided on a very limited point relating to the competence of the judge who tried the offence for which the appellant was found guilty and punished, this Court requested Smt. Rina Sinha to assist it as amicus curiae, who was also desirous of doing it and, accordingly, she was heard. 3. The impugned judgment is dated 18.1.2006, which has been passed 2 by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court – 3, East Champaran at Motihari in NDPS Case no. 48 of 2003. The case was initiated on an official complaint filed by Shri Pramod Kumar Prasad, Inspector, Customs (P) Office, Motihari, who was examined as P.W. 1 and after cognizance of certain offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) the sole appellant was charged of committing an offence under section 23 of the Act. The charge was framed by Shri K.V. Singh, who was 7th Additional Sessions Judge, Motihari, an officer in the regular cadre of the District Judge designated to act as Additional District and Sessions judge. However, Shri Kumar Vijay Singh recorded the evidence of all the witnesses as also the statement of the appellant under section 313 of the Code of Criminal Procedure on 4th November, 2004, but appears not delivering the judgment, which was ultimately delivered by Shri Manzur Hassan, Additional Sessions Judge-cum-Presiding Officer, FTC – 3, Motihari. 4. Smt. Rina Sinha, learned amicus curiae challenged the judgment on the ground of lack of competence of the Presiding Officer of the court to deliver the judgment. In that connection, she had drawn the attention of the court to the provision of section 36-A and 36-C of the Act to submit that as per section 36-A of the Act, the offence 3 under the Act was triable by the Special Court save and except in a case where imprisonment was up to three years. She further submitted that the special court has to be constituted under section 36 of the said Act and it has to be presided over by a judge who, immediately before being appointed as a judge of the special court, must have either been a Sessions Judge or Additional Sessions judge as may appear from a compact reading of section 36 of the Act. Smt. Sinha was further drawing the attention of the court to section 36 C of the Act to submit that the special court has to be a court of Sessions and the person conducting a prosecution before that court shall be deemed to be a public prosecutor. It was contended by Smt. Sinha that section 9 of the Cr.P.C. speaks about the court of Sessions and as per the provision every Sessions Division shall have a court of Sessions Judge and every court of Sessions shall have a judge who shall be appointed by the High Court. The High Court may also appoint Additional District Judges and Assistant Sessions Judges who are also to exercise jurisdiction in a court of sessions. It was contended that there could be only one court of Sessions but on account of appointment of as many Additional Sessions judge or Assistant Sessions Judges, the number of such court may be more than one. It was contended further that the appointment of judges who preside over the court of Sessions have always to be made by 4 the High court and that appointment is necessary to be made under Article 233 of the Constitution of India read with section 9 of the Cr.P.C. It is contended that the officers who man the Fast Track Courts have not been appointed as Additional Sessions judges, rather they have been authorized to officiate in that capacity and, as such, they are not Additional Sessions Judges and, as such, they do not have the jurisdiction to try or deliver judgment in any case under the Act. 5. I have considered the contention of Smt. Sinha in the light of the provisions referred to by her and I have simply to uphold her contention that an officer who presides over the court of Fast Track Court acts under an executive instruction of the Central Government in consultation with the High Court, is never appointed as Additional Sessions judge in terms of the constitutional provisions or the provision of the Code of Criminal Procedure and as such he could not be said to be an Additional Sessions Judge immediately before he was appointed as a judge of the special court. Moreover, no judge of the Fast Track Court has been appointed as a judge of the special court established under section 36 of the Act and from that angle also, the judgment passed by the Presiding officer, Fast Track Court – 3, Motihari appears passed without jurisdiction and as such the same is hereby set aside resulting into setting aside of the 5 judgment of conviction of the appellant and sentence inflicted upon him. 6. The matter is remitted back to the District and Sessions Judge, East Champaran, Motihari, who shall either hear the parties and deliver the judgment himself or make over the case to any other court of competent jurisdiction for delivering the judgment as the proceedings of the trial before judgment was conducted by a competent court and properly appointed special judge. 7. The appeal is allowed in the terms indicated above directing re-trial of the case for delivering judgment in accordance with law. 8. Smt. Renu Sinha, learned amicus curiae has assisted this court and she deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose let a copy of the first and the last pages of the judgment be made over to her. (Dharnidhar Jha, J.) Patna High Court, The 7th July, 2011, NAFR/Anil/