1 337210 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3372 OF 2010 Union of India, through the Air Intelligence Unit, Mumbai, through Shri M.K.Shrivastava, Asst.Commissioner of Customs, having his office at Commissionerate of Custom, CST International Air Port, Awas Corporate Point, Makwana Lane, S.M.Centre, Off Andheri-Kurla Road, Andheri (E), Mumbai-400 059. ...Petitioner Versus 1.Okorake Emmanuel Chukwunonyere, Aged ... years, A Nigerian National, (Presently lodged at Mumbai Central Prison at Arthur Road), Satelite Town, South Rd.Lagos, Nigeria. 2.The State of Maharashtra ...Respondents WITH CRIMINAL WRIT PETITION NO. 2990 OF 2010 Union of India, through the Air Intelligence Unit, Mumbai, through Shri M.K.Shrivastava, Asst.Commissioner of Customs, having his office at Commissionerate of Custom, CST International Air Port, Awas Corporate Point, Makwana Lane, S.M.Centre, Off Andheri-Kurla Road, Andheri (E), Mumbai-400 059. ...Petitioner 2 337210 Versus 1.Mr.Alabi Isiaka Omotolani, Aged ... years, A Nigerian National, (Presently lodged at Mumbai Central Prison at Arthur Road), R/o.No.13, Lg Lami Kwara State, NIGERIA. 2.The State of Maharashtra ...Respondents ...... Mr. D.J. Khambatta, Additional Solicitor General, and Mr. Mandar Goswami, Public Prosecutor, for the Petitioner-Union of India Mr.H.E.Mooman i/b Ms. K.V. Anuradha for Respondent No. 1 in Criminal Writ Petition No. 3372 of 2010 Mr. Ayaz Khan for Respondent No. 1 in Criminal Writ Petition No. 2990 of 2010 ...... CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: JULY 25, 2011 JUDGMENT (Per A.M. Khanwilkar, J.):- Rule. Learned Counsel for respondent No.1 in the respective petitions waive notice. The matters were taken up for final hearing forthwith, by consent. 2. Both these petitions involve common questions, and are, therefore, being disposed of together. 3 337210 3. The principal question that arises for consideration in these petitions is: Whether by efflux of time specified in the subject Notification issued by the Government of India inter alia in exercise of powers conferred under Section 24(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”, for the sake of brevity), the appointment of the concerned Special Public Prosecutors to conduct the trial, in respective special cases, wherein they had already entered appearance when the tenure specified in the notification was subsisting, being offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”, for the sake of brevity), would come to an end, as a result of which, their continuation as Special Public Prosecutors even in those criminal cases is without authority of law? 4. At the outset, we place on record that, in view of the subsequent development, the above question does not survive for consideration at least in the subject criminal cases, in view of issuance of fresh Notification by the Government on 26th October, 2010, continuing the appointment of the concerned Special Pubic 4 337210 Prosecutors to conduct the trial of the stated cases. However, since the question is a recurring one, and is likely to be agitated in other cases tried by the Special Court under the provisions of the NDPS Act, we accede to the request of the Union of India to answer the said question. 5. Briefly stated, respondent No. 1 in the respective petitions came to be arrested in connection with offence punishable under the provisions of the NDPS Act, as they were found to be in possession of narcotic drugs. The petitioner is an investigating and prosecuting agency in the concerned cases. The said cases are being tried before the Special Judge appointed under the NDPS Act for Greater Mumbai. In both these criminal cases, Shri A.R. Gupte, Advocate, (hereinafter referred to as the said Advocate), entered appearance to conduct the trial for and on behalf of the petitioner, the prosecuting agency. It is common ground that the said Advocate, and two other Advocates, were appointed by the Government of India as Special Public Prosecutors for the purpose of conducting cases instituted under specified enactments, including the NDPS Act, vide Notification dated 27th April, 2005. The said Notification reads thus:- 5 337210 “TO BE PUBLISHED IN PART II SECTION 3 SUBSECTION II GAZETTE OF INDIA, EXORDINARY (SIMULTANEOUSLY WITH HINDI VERSION) Government of India Ministry of Law and Justice Department of Legal Affairs New Delhi, the 27th April, 2005 Notification S.O................. In exercise of the powers conferred by sub section (8) of Section 24 of the Code of Criminal Procedure, 1973 (2 of 1974) the Central Government hereby appoints:- (i) Shri A.R.Gupte, Advocate, Mumbai High Court (ii) Shri C.T.George, Advocate, Mumbai High Court and (iii) Smt.Usha Sisodia, Advocate, High Court. As Special Public Prosecutor for the purpose of conducting cases instituted under (a) the Central Excises Act, 1944 (1 of 1944), (b) The Employees `Provident Funds’ and Miscellaneous Provisions Act, 1952 (19 of 1952), (c) The Companies Act, 1956 (1 of 1956), (d) The Wealth-tax Act, 1957 (27 of 1957), (e) The Gift-tax Act, 1958 (18 of 1958), (e) The Gift-Tax Act, 1958 (19 of 1958), (f) The Income-tax Act, 1961 (43 of 1961), (g) The Customs Act, 1962 (52 of 1962), (h) The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), (i) The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980) and (j) The Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) before the Special Courts, Sessions Courts and Additional Sessions Court in the Greater Mumbai for a period of three years or until further orders, whichever is earlier, subject to the3 condition that the above mentioned advocates shall not appear in any criminal cases in any Special Court, Sessions Court or Additional Sessions Courts against the Central Government or any officer of the Central Government or against any Department of the Central Government. (D.K.Meena) Joint Secretary and Legal Adviser to the Government of India F.No.23(2A)/2005-Judl. The Manager Government of India Press Mayapuri, Ring Road New Delhi. 6 337210 6. From the plain language of this Notification, it is obvious that the Central Government, in exercise of the powers conferred by Section 24(8) of the Code, appointed the named advocates as Special Public Prosecutors to conduct cases pertaining to specified enactments before the Special Courts, Sessions Courts and Additional Sessions Court in Greater Mumbai. This appointment, however, was a tenure appointment for a period of three years or until further orders, whichever is earlier. Thus, the period of three years was to expire on 26th April, 2008. It is common ground that no Notification was issued by the Central Government to continue the appointment of the named advocates as Special Public Prosecutors after 27th April, 2008. In that view of the matter, the respondents in the respective petitions moved application before the Special Court for direction to the prosecution to produce the Notification showing that the appointment of the said Advocate was still subsisting. While resisting the said application, it was contended on behalf of the petitioner that the accused or their advocates cannot be allowed to challenge the appointment of Special Pubic Prosecutor, nor can they ask for production of Notification to establish that the appointment of the concerned advocate as Special Public Prosecutor was still subsisting. At the same time, it was fairly accepted before the 7 337210 Special Court that no fresh Notification has been issued by the Central Government after 27th April, 2008 indicative of continuation of appointment of the concerned advocate(s) as Special Public Prosecutor to conduct the cases on behalf of the Central Government in the Special Court. According to the petitioner, however, that would make no difference, as the concerned advocates could legitimately continue to conduct the cases under the NDPS Act, in view of the expansive provisions of Section 36-C of the NDPS Act. In other words, the petitioner asserted that it was not necessary to issue any further notification under Section 24(8) of the Code, so as to enable the concerned advocates to appear and conduct cases under the NDPS Act as Special Public Prosecutors in which they have already entered appearance in that capacity during the period specified in the stated Notification. The Special Court, after considering the stand taken by the rival parties, vide its judgment and order dated 6th September, 2010, proceeded to answer the controversy, and held that the appointment of the concerned advocates as Special Public Prosecutors, in terms of Notification dated 27th April, 2005, was a tenure appointment, and, in absence of fresh notification for continuation of their appointment, the said advocates were ineligible to act as Special Public Prosecutors in the 8 337210 concerned cases. This conclusion has been reached essentially on the basis of the order passed by this Court in Criminal Writ Petition No. 1003 of 2005 dated 7th June, 2005. It is this decision which is subject-matter of challenge in the present writ petitions. 7. Besides challenging the decision of the Special Judge dated 6th September, 2010, the petitioner has asked for a declaration that Section 36-C of the NDPS Act overrides the provisions of Sections 225 and 24 (8) of the Code, to the extent that there is a conflict, and that a person duly authorised to conduct prosecution under the special provisions such as Section 36-C of the Act may continue to conduct such prosecution as a Public Prosecutor, even in the absence of a further Notification issued under Section 24(8) of the Code. 8. We have heard the learned Additional Solicitor General appearing for the Union of India and the counsel for respondent No.1 in the respective petitions. The arguments canvassed before the Special Judge have, more or less, been reiterated by the rival parties before us. 9 337210 9. To answer the controversy, we may usefully refer to the relevant provisions of the Code, which have bearing on the controversy on hand. Section 2(u) of the Code defines “Public Prosecutor” to mean any person appointed under Section 24, and includes any person acting under the directions of the Public Prosecutor. Thus, the regime for appointing a Public Prosecutor is spelt out in Section 24 of the Code. 10. Before referring to Section 24 of the Code, it would be apposite to refer to Sections 4 and 5 of the Code, as the trial in the present cases is under the provisions of the NDPS Act, which is a special law. The said provisions read thus:- “4.Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the lime being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5.Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” 10 337210 Section 4(1) is not applicable to the cases pertaining to offence under the NDPS Act. However, Section 4 (2) would come into play, as it provides for procedure to be followed in respect of offences “under any other law”, for investigation, enquiry into, trial of, and otherwise dealt with. This expansive provision would encompass cases under the NDPS Act. However, the latter part of Section 4(2) predicates that the procedure provided in the Code for such cases shall be subject to the provision in the special law for the time being in force. Section 5 of the Code makes it explicit that, if there is a specific provision to the contrary in the special law, amongst others, pertaining to special form of procedure prescribed, that shall prevail. We shall advert to this aspect a little later. 11. Reverting back to the procedure for appointment of a Public Prosecutor or a Special Public Prosecutor, as the case may be, we will have to refer to Section 24 of the Code “as applicable to the State of Maharashtra”, which reads thus:- 11 337210 “24. Public Prosecutors.-(1) For every High Court, the Central Government or the State Government shall, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, with the approval of the State Government, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by me District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub- section (4). 12 337210 [Explanation.--For the purposes of this sub-section,- (a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; (b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (I) or sub-section (2) or sub-section (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub- section.] (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.] 12. On conjoint reading of the above-said provisions, it does appear that the Central Government or the State Government, as the case may be, is obliged to appoint a Public Prosecutor and Additional Public Prosecutors to conduct criminal cases on its behalf before the 13 337210 concerned Courts. In addition, it is open to the concerned Government to appoint any person as a Special Public Prosecutor for the purpose of any case or class of cases. Sub-section (1) requires the concerned Government to appoint “a Public Prosecutor” and one or more Additional Public Prosecutors for conducting any prosecution, appeal or other proceedings on its behalf before the High Court. 13. In the present cases, sub-section (1) will have no application, as the appointment in question is in relation to cases instituted by the Central Government and tried by the Special Judge under the provisions of the NDPS Act. Sub-section (2) is attracted in such cases. It provides that the “Central Government” may appoint one or more Public Prosecutors, for the purpose of conducting “any case” or “class of cases” in any district or local area. Notably, this provision does not specify any tenure for such appointment. That is a matter obviously left to the discretion of the Central Government, whether the appointment is for “a case” or “class of cases” in the district or local area. Even this provision is of 14 337210 no avail to the facts of the present case – as the appointment is of “Special Public Prosecutor” under Section 24(8) of the Code. 14. Sub-sections (3) to (6) are essentially applicable to the appointment of a Public Prosecutor or Additional Public Prosecutor for the district by the “State Government”, with which we are not concerned in the present cases. 15. Sub-section (7), however, deals with the eligibility of a person to be appointed as a Public Prosecutor or an Additional Public Prosecutor for the High Court or the district or local area, as the case may be. In the present cases, there is no dispute regarding the eligibility of the advocate(s), who were appointed as Special Public Prosecutors by the Central Government. The limited question is: whether they could continue to conduct the trial for and on behalf of the Central Government, even though their term specified in the Notification dated 27th April, 2005 had expired and in absence of a notification to extend their tenure as “Special Public Prosecutor” to conduct the concerned cases. 15 337210 16. Sub-section (8) is of some significance to answer the point in issue. It postulates that the Central Government or the State Government may appoint, for the purposes of “any case” or “class of cases”, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. This is an enabling provision empowering the Central or the State Government, as the case may be, to appoint any Advocate possessing requisite qualification as a Special Public Prosecutor. It is open to the concerned Government to appoint any Advocate possessing requisite qualification including whose name does not appear in the panel of persons appointed as Public Prosecutors or Additional Public Prosecutors for the High Court or the district or local area, as a Special Public Prosecutor. Further, the appointment of “Special Public Prosecutor” can either be in respect of “a case” or “class of cases”. It need not necessarily be a tenure appointment, but could operate until further orders. In the present cases, the appointment of the three advocates as Special Public Prosecutors was to conduct cases under the specified enactments, including the NDPS Act, before the Special Courts, Sessions Courts and Additional Sessions Court in Greater Mumbai. They were appointed by the Central 16 337210 Government, vide Notification dated 27th April, 2005, in exercise of the powers conferred under Section 24 (8) of the Code. The problem, however, arises, as the Notification dated 27th April, 2005 specified the term for which the three advocates were appointed as Special Public Prosecutors by the Central Government, viz., for a period of three years or until further orders, “whichever is earlier”. We will deal with this aspect a little later. 17. There is yet another provision in the Code, to which our attention was invited. Section 225 of the Code mandates that, in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor. The Pubic Prosecutor referred to therein, obviously, means a Public Prosecutor appointed by the Central or State Government, as the case may be, under Section 24 of the Code. That includes the Special Public Prosecutor appointed under Section 24 (8) of the Code. 18. Be that as it may, as aforesaid, the problem posed before us arises on account of the tenure appointment of the three Advocates as Special Public Prosecutors by the Central Government under Notification dated 27th April, 2005. The term of their appointment 17 337210 was for a period of three years or until further orders, whichever is earlier. That means, they could be removed even before the expiry of three years’ period. In absence thereof, their term was to last for a period of three years only from the date of their appointment vide notification dated 27th April, 2005. Thus, going by the language of this Notification, it may appear that the term of office of the three advocates as Special Public Prosecutors, by efflux of time, expired on 26th April, 2008. 19. To get over this position, it was contended on behalf of the petitioner that, since the cases in which the advocates were appointed as Special Public Prosecutors, are under a special law, the express provision contained in Section 36-C of the said enactment ought to prevail. According to the petitioner, any person conducting a prosecution before a Special Court on behalf of the prosecuting agency ought to be considered as a Public Prosecutor, in view of the legal fiction and the deeming provision contained therein. Section 36-C of the NDPS Act reads thus:- “36-C.Application of Code to proceedings before a Special Court.- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall 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 18 337210 person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.” 20. The question is: Whether the abovesaid provision in the NDPS Act is in conflict with the provisions of the Code? There can be no doubt that the NDPS Act is a special law, and has been enacted with a view to make stringent provisions for the control and regulation of operations relating to the narcotic drug and psychotropic substance [see State of Rajasthan v. Udai Lal, reported in (2008) 11 SCC 408, para 10]. It is also well established that, if the provisions of the special law are in conflict with the provisions of the general law, then, the provisions of the special law must prevail, and, if the special law is a subsequent enactment, then, the provisions contained therein must prevail both on the ground that the Act, being a special Act, overrides the provisions in the Code, which is a general law and also because the subsequent enactment must prevail over the earlier one. (See Jasbir Singh v. Vipin Kumar Jaggi & Ors., reported in AIR 2001 SC 2734 – Para 39). 21. Reverting back to Section 36-C of the NDPS Act, it opens with the expression “Save as otherwise provided in this Act”. The procedure pertaining to trial of cases prescribed by the Code, 19 337210 which includes the appointment of a person as Public Prosecutor or Special Public Prosecutor, to conduct the trial, ought to apply even to NDPS cases. Section 36-C, however, contemplates that a person conducting a prosecution of NDPS Act case before a Special Court shall be deemed to be a Public Prosecutor. According to the Petitioner, this deeming provision is intended to override the provision in Section 225 of the Code, which mandates that every trial before a Court