Soman Pillai v. State — 1994 DIGILAW 340 (KER)

Judgment :- SREEDHARAN, J. These appeals have been referred to a Division Bench by a learned single Judge for deciding the question as to whether trial conducted by the Sessions Court for offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, for short "NDPS Act", is illegal in view of the order of commitment passed by the Magistrate under Section 193 of the Code of Criminal Procedure, for short "the Code". 2. In Criminal Appeal 678/1993, police initiated proceedings under the NDPS Act against the accused on the allegation that he was found to have cultivated and maintained 100 ganja plants in the land belonging to and possessed by him at Mukkudil kara in Senapathy Panchayat. The cultivation was detected by the Sub-Inspector of Police, Santhanpara while he was on law and order patrol duty on 25-9-1990. Accused was taken into custody on 26-9-1990 when he surrendered before PW-4, the Circle Inspector of Police, Munnar. He was produced before the Judicial First Class Magistrate's Court, Nedumkandom on the same day. Learned Magistrate remanded him to custody till 10-10-1990. He moved the Session Court for bail. Learned Sessions Judge released him on 1-10-1990. PW-9 completed investigation and filed final report on 13-11-1990. It was taken on file by the learned Magistrate as C.P. 66/1990. Magistrate by order dated 24-6-1991 committed the case to the Court of Session. Learned Sessions Judge framed charges for offence under Section 20(a)(i) of the NDPS Act on 13-11-1992. After trial, learned Sessions Judge found accused guilty of the said offence and convicted him thereunder. Thereupon he was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 25,000/- with a default clause to suffer rigorous imprisonment for six months. 3. In Crl. Appeal 130/1993 the facts are as follows : On 10-12-1989 at about 4.00 a.m., the Superintendent of Police, Wynad, conducted raid in a plot comprised in Survey No. 250/1A of Kottappadi Village and found 4,800 ganja plants being cultivated in about 2 1/2 acres of land. The four accused were found sleeping in a shed in that property. Sample ganja plant was taken and the remaining were destroyed. Crime 218/1989 of Mappady Police Station was registered as 5.00 p.m. on 10-12-1989. Accused were produced before the Chief Judicial Magistrate, Wynad on 11-12-1989. The four accused were found sleeping in a shed in that property. Sample ganja plant was taken and the remaining were destroyed. Crime 218/1989 of Mappady Police Station was registered as 5.00 p.m. on 10-12-1989. Accused were produced before the Chief Judicial Magistrate, Wynad on 11-12-1989. Learned Magistrate directed accused to be produced on 12-12-1989, on which day he remanded accused to custody. Period of remand was being periodically extended by the learned Magistrate. While so, on 30-1-1990 learned Sessions Judge released them on bail. After completing the investigation, police filed the charge-sheet on 16-3-1991 for offences under Secs. 20(a)(i) and 25 of the N.D.P.S. Act. Learned Magistrate entertained the final report as C.P. 3/1991. By order dated 10-4-1991, learned Magistrate committed the case to the Sessions Court. Learned Sessions Judge framed charges for offences under Section 8(b) read with Sections 20(a) and 25 of the NDPS Act. After trial, the learned Sessions Judge convicted all the accused for the offence under Section 20(b)(i) of the NDPS Act. First accused was further convicted under Section 25 of the Act as well. Thereupon all the accused were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 25,000/- with a default clause to suffer rigorous imprisonment for a period of one year for the offence under Section 20(b)(i) of the Act. First accused was further sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- with a default clause to suffer rigorous imprisonment for a period of two years under Section 25 of the Act. Sentences were directed to run concurrently. 4. Main argument advanced by the learned counsel representing the appellants in these appeals is that the trial conducted by the Sessions Court, which is a Special Court, based on an order of committal passed by the Magistrate is illegal. Special Court is not to take cognizance of the case on the basis of an order passed by the Magistrate under Section 193 of the Code. The trial of the case by the Special Court, which followed the order of committal, is one done without jurisdiction. Learned counsel proceeds to contend that the conviction and sentence passed in a trial, which was without jurisdiction, is a nullity and the appellants are entitled to acquittal. 5. The trial of the case by the Special Court, which followed the order of committal, is one done without jurisdiction. Learned counsel proceeds to contend that the conviction and sentence passed in a trial, which was without jurisdiction, is a nullity and the appellants are entitled to acquittal. 5. In support of the above argument, learned counsel relied on the decision of this Court in State of Kerala v. Balakrishnan, 1991 (2) KLT 323, and In re an Accused, 1992 (1) KLT 399. In 1991 (2) KLT 323, the question that arose for consideration was whether on a complaint filed under the provisions of the NDPS Act the Magistrate should conduct enquiry contemplated under Section 202(2) of the Code and commit the case to the Sessions Court or whether the Sessions Court empowered under Section 36-D to try cases under the NDPS Act itself is competent to take cognizance of the offence as if it is a court of original jurisdiction. In that case, the correctness of the decision in Supdt. Spl. Customs Preventive Unit v. Moidu, 1990 (2) KLT 275, where a learned single Judge held that in a prosecution for offences punishable under the NDPS Act the Magistrate need not conduct an enquiry under Section 202(2) of the Code before committing the case to the Sessions Court is correct or not. While dealing with that issue, the Bench came to the conclusion that the Court of Session empowered to try the case under Section 36-D of the N.D.P.S. Act during transitional period shall be deemed to be a Special Court having power under Section 36-A(1)(d) of the Act to take cognizance of the police report or upon a complaint made by an officer of the Central or State Government authorised in that behalf. The Bench also observed that Section 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the NDPS Act. The Bench also observed that Section 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the NDPS Act. Accordingly, the reference was answered holding that a Court of Session by virtue of the provisions contained in Section 36-D of the Act is competent to exercise the powers under clauses (c) and (d) of sub-section (1) of Section 36-A of the Act as if it is a Special Court constituted under Section 36 of the Act and the Court of Session empowered under Section 36-D of the Act can take cognizance of the offence without there being a committal proceedings. The learned Judges observed that the method of taking cognizance in the manner laid down in Sections 190 and 193 of the Code is not applicable to Sessions Court trying offences under Section 36-D of the Act. 6. The decision in 1991 (2) KLT 323 was rendered on 1st August, 1991. Only by virtue of this pronouncement the Sessions Courts in Kerala were deemed to be Special Courts coming within the purview the NDPS Act. The orders of committal passed by the learned Magistrates in these two cases were passed long prior to 1-8-1991. The order of committal of the case from which Crl. A. 130/1993 arises was on 10-4-1991 and that in Crl A. 678/1993 was on 24-6-1991. 7. It is conceded before us on all sides that in Kerala no Special Court has been constituted as required by Section 36 of the NDPS Act. Under Section 36, Special Courts are to be constituted for providing a speedy trial of offences under the Act. If a Special Court is so constituted, that Court gets Jurisdiction as a court of original jurisdiction. In respect of such a court, Section 193 of the Code cannot have any application. Sessions Courts in Kerala are trying the offences under the NDPS Act by virtue of the transitional provisions contained in Section 36-D of the NDPS Act. Such courts are now being treated as Special Courts only by virtue of the decision of this Court in 1991 (2) KLT 323. Before that decision, the Sessions Courts were not treated as Special Courts constituted under Section 36 of the Act. 8. The next decision referred to by the learned counsel is the one in re An Accused, 1992 (1) KLT 399. Before that decision, the Sessions Courts were not treated as Special Courts constituted under Section 36 of the Act. 8. The next decision referred to by the learned counsel is the one in re An Accused, 1992 (1) KLT 399. One of the questions that arose for consideration in the decision was whether a Judicial Magistrate before whom accused is produced can authorise his detention for a period exceeding 15 days. The contention was that in some cases detention for a longer period may be necessary and so, Magistrates should have the power to remand accused for periods greater than 15 days. Dealing with this issue, the Bench took the view that Section 36-A would show that the accused, who has been produced before the Magistrate, will have to send him to the Special Court and Special Court gets Jurisdiction in the matter thereafter. This observation of the Bench would also go to along way to resolve the issue before us. The Magistrate before whom the matter is pending has to send the case to the Special Court. While thus sending the case of the accused to the Special Court if the Magistrate passed an order purporting to be one under Section 193 of the Code, will the entire proceedings thereafter be vitiated ? On account of such an order having been passed by the Magistrate will the Court of Session, which is a deemed Special Court under Section 36-D of the Act, lose its jurisdiction to try the accused ? The answer to these questions, according to our considered opinion, should be in the negative. The order passed by the learned Magistrate, purporting to be one under Section 193 of the Code, can at best be considered as an irregularity. That irregularity, if it is an irregularity, will not in any way affect the jurisdiction of the Sessions Court trying the case as a Special Court under Section 36-D of the Act. If we are taking a too technical view as is prayed for by the learned counsel, it will certainly go to defeat the very purpose of the enactment. Such technicalities, which is not affecting the accused adversely in any manner, has to be ignored. 9. Section 36-D of the NDPS Act is in the following terms :- "36-D. Transitional provisions. If we are taking a too technical view as is prayed for by the learned counsel, it will certainly go to defeat the very purpose of the enactment. Such technicalities, which is not affecting the accused adversely in any manner, has to be ignored. 9. Section 36-D of the NDPS Act is in the following terms :- "36-D. Transitional provisions. - (1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substance (Amendment) Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session; Provided that offences punishable under Sections 26, 27 and 32 may be tried summarily. (2) Nothing in sub-section (1) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session under the said sub-section (1) and the same shall be heard and disposed of by the Court Session". As per this provision, until a Special Court is constituted under Section 36, any offence committed under the Act shall be tried by a Court of Session notwithstanding anything contained in the Code. The Court of Session thus is to try the case notwithstanding anything contained in the code. It would therefore follow that the jurisdiction of the Sessions Court is not subject to Section 193 of the Code. That is the reason why in 1991 (2) KLT 323 this Court took the view that the Sessions Court shall try the offences under the Act as a Special Court. The Special Court can thus take cognizance of an offence notwithstanding anything contained in the Code. It can take cognizance of offence and try the same as a court of original jurisdiction. Before this authoritative pronouncement was made, complaints were being filed before the Magistrates. Such complaints were being entertained as committal proceedings. Magistrates were passing orders under Section 193 of the Code committing the case to the Sessions Court. 10. As the law now stands, the Court of Session, exercising jurisdiction under Section 36-D of the Act, is to function as a Special Court notwithstanding anything contained in the Code. It means, the Court of Session can take cognizance of an offence as a Court of original jurisdiction. 10. As the law now stands, the Court of Session, exercising jurisdiction under Section 36-D of the Act, is to function as a Special Court notwithstanding anything contained in the Code. It means, the Court of Session can take cognizance of an offence as a Court of original jurisdiction. In such a state of affairs can it be said that the Court of Session cannot take cognizance of an offence if the case has been committed to it by a Magistrate under Section 193 of the Code ? No decision has been brought to our notice which lays down the proposition that the Sessions Court while exercising jurisdiction as Special Court under Section 36-D of the Act has no power to try the case committed to it by the Magistrate. Even without an order of committal, the Sessions Court as a Special Court can take cognizance of any offence. According to us, the above provision does not mean that when a case has been committed to it by a Magistrate the Sessions Court should not take cognizance of that offence. If cognizance of such an offence is taken by the Sessions Court, it will not be an illegality. Nor can it be said that the trial, which proceeded in pursuance of the order of committal, be a nullity. In Ahamed Koya v. State, 1991 (1) KLT 332, a learned single Judge of this Court took the view that the trial which succeeded an order of committal by the Magistrate will not be void. What the learned Judge observed was : "Ss. 36 and 36-A of the Act taken together shows that offences under the Act are triable only by special courts constituted for the area and the court can take cognizance without the accused being committed for trial as contemplated in S. 193 of the Code of Criminal Procedure (the Code). In this case, charge was laid before the Judicial Second Class Magistrate, who committed the case to the Court of Session. That cannot be said to be an illegality vitiating the trial or affecting jurisdiction. The argument cannot, therefore, be accepted". We are in respectful agreement with this observation. If an offence under the NDPS Act was committed to the Court of Session by the Magistrate, that order of committal may at best be an irregularity. That irregularity will in no circumstance vitiate the trial. The argument cannot, therefore, be accepted". We are in respectful agreement with this observation. If an offence under the NDPS Act was committed to the Court of Session by the Magistrate, that order of committal may at best be an irregularity. That irregularity will in no circumstance vitiate the trial. Nor will it affect the jurisdiction of the Sessions Court which exercise the power as a Special Court under Section 36-D of the Act. The irregularity, if at all it is an irregularity, is not one which goes to prejudice the accused. The trial in these cases were held strictly in compliance with the provisions contained in the NDPS Act. No illegality was committed by the Sessions Court in the said trial. Learned counsel appearing in the case has not advanced any argument to the effect that the said trial had in any manner gone to prejudice their clients. In these circumstances, we find no illegality in the trial or lack of jurisdiction for the Court of Session which tried the cases as Special Court under Section 36-D. The argument advanced the learned counsel representing the appellants that the trial was vitiated on account of the order of committal passed by the Magistrate which had gone to affect the jurisdiction of the Sessions Court cannot be countenanced. That argument is overruled as untenable. 11. Coming to the merits of the case, the learned counsel representing the appellants in Criminal Appeal 130/1993 advanced two points. They are - (i) that the prosecution has not succeeded in showing that accused were cultivating 4800 and odd ganja plants in R.S. 250/1A of Kottappadi Village; and (ii) that the ganja plant which was recovered by the Superintendent of Police was not properly sealed when it was sent to the learned Magistrate. 12. Regarding the first submission, we are of the view that it has no factual basis. PW-4 is the owner of a plot of land having an extent of 13 1/2 acres. Out of that, he leased out 2 and odd acres to the accused as per Exhibit P2. First accused is the father-in-law of the brother of PW-4. PW-4 has given evidence before Court that the area leased out to first accused under Exhibit P2 was cultivated by the first accused with ganja plants. Nothing has been brought out in his cross-examination to discredit his testimony. First accused is the father-in-law of the brother of PW-4. PW-4 has given evidence before Court that the area leased out to first accused under Exhibit P2 was cultivated by the first accused with ganja plants. Nothing has been brought out in his cross-examination to discredit his testimony. Police officers examined in the case corroborated the testimony of PW-4 on all material particulars. Thus, there is clinching cogent evidence to prove that first accused was having cultivation of ganja plants in the area covered by Exhibit P2. 13. Accused 2 to 4, appellants 2 to 4 herein, were sleeping inside the shed in the said property along with the first accused. They had their cooking utensils, provision, rice and other materials for preparation of the food in that shed. The evidence before Court shows that all the accused were engaged in the cultivation of the ganja plants and were staying in the shed in the said property. As per S. 54 of the NDPS Act, unless and until the contrary is proved, it has to be presumed that the accused has committed an offence under Chapter IV of the Act in respect of cannabis plant growing on the land which he has cultivated. This statutory presumption is also to be pressed into service in favour of the prosecution. The evidence tendered by the prosecution along with the said presumption shows that the cannabis plants found in 2 and odd acres in Survey No. 250/1A of Kottappady Village was cultivated by accused. Therefore, we find no ground to interfere with the conclusion reached by the learned Sessions Judge. 14. The ganja plant which was recovered from the property cultivated by the accused was produced before the Magistrate. As per the evidence before Court, till it was so produced, it was kept in safe custody by the police. The ganja plant so produced was sent to the Chemical Analysts for analysis and got back. The plant so got back was marked in this case as No. 1. PW-14, Circle Inspector of Police, has categorically stated before Court that Mo. 1 is the very ganja plant which was recovered from the property under the cultivation of the accused and got back after chemical analysis. There was no cross-examination of this witness on this point. The plant so got back was marked in this case as No. 1. PW-14, Circle Inspector of Police, has categorically stated before Court that Mo. 1 is the very ganja plant which was recovered from the property under the cultivation of the accused and got back after chemical analysis. There was no cross-examination of this witness on this point. So, we are convinced that the very ganja plant which was recovered from the area cultivated by the accused was subjected to chemical analysis and got back and marked as MO-1. This point also found against the accused. 15. The points urged by the learned counsel representing the appellant in Crl. A. 678/1993 were also identical to that raised by counsel in the other appeal, namely that prosecution has not established the actual cultivation of the ganja plant by the appellant and that the ganja plant recovered from the area stated to have been in the possession of the accused was not produced before the Magistrate within a reasonable time. There was a delay of 24 days in producing the ganja plant before the Magistrate and that is fatal to the prosecution. 16. It is the admitted case of the appellant in Crl. A. 678/1993 that he himself and his family were residing in house No. 567/VII of Senapathy Panchayat. Around this building, somewhere about 60 cents were seen separated by fence as per the evidence of PW-3, the Sub-Inspector of Police, who detected the offence. P.Ws. 3 and 4 have stated that the properties in the locality are not registered lands. They are lands encroached upon by trespassers. Accused is one such person who put up building bearing door No. 567 of Ward No. VII of Senapathy Panchayat. The ganja cultivation was very close to the said building. Evidence of PWs. 3 and 4, taken along with the presumption of law under Section 54 of the NDPS Act, shows that accused/appellant was cultivating the ganja plants in the area situated around his residential building. On this ground, we find no way to countenance the first argument advanced by the learned counsel. 17. PW-3, the Sub-Inspector of Police, has given evidence before Court that the ganja plant recovered from the area in the possession of the accused was kept in safe custody in the Police Station till it was produced before the Magistrate. On this ground, we find no way to countenance the first argument advanced by the learned counsel. 17. PW-3, the Sub-Inspector of Police, has given evidence before Court that the ganja plant recovered from the area in the possession of the accused was kept in safe custody in the Police Station till it was produced before the Magistrate. We do not find any ground to doubt said statement. Thus, the second point urged is overruled. 18. Lastly a contention was raised by the learned counsel appearing in these appeals that police officers who conducted the search and seizure violated the provision contained in Section 42(1) of the NDPS Act inasmuch as those officers had not taken down in writing the information gathered by them regarding the cultivation of ganja plants prior to their search of the area. We find precious little in this argument of counsel. In Crl. A. 130/1993 the search was made by the Superintendent of Police of Wynad district. When such senior officer conducts the search, according to us, he need not take down any information in writing for being sent to his immediate official superior who is having office at a far-off place. As far as the police officer who made the search in the case which gave rise to Crl. A. 678/1993 is concerned, he came to know of the cultivation while he was on law and order patrol duty. It means that the said officer had no prior intimation given by any person that was to be taken down in writing as contemplated by Section 42(1) of the Act. In this regard, reference may be made to the decision of the Supreme Court in State of Punjab v. Balbir Singh, 1994 (2) JT (SC) 108 : 1994 Cri LJ 3702 : AIR 1994 SC 1872 : 1994 AIR SCW 1802. 19. Lastly an argument was advanced on the basis of the decision of the Supreme Court in Valsala v. State of Kerala, 1993 (2) KLT 550. According to us, that decision is clearly distinguishable on facts. The substance that was seized in the case was 31.100 gms. of brown sugar. That brown sugar seized from the accused was produced before Court after more that three months. In that case, there was also no evidence to show that the substance was kept in proper custody. According to us, that decision is clearly distinguishable on facts. The substance that was seized in the case was 31.100 gms. of brown sugar. That brown sugar seized from the accused was produced before Court after more that three months. In that case, there was also no evidence to show that the substance was kept in proper custody. In the instant case before us, it was ganja plants of more than a metre height that was seized and they were kept in proper custody. So, according to us, the said decision is not of any help to the accused. In view of what has been stated above, we find no merit in these appeals. The conviction and sentence passed by the trial courts are confirmed and the appeals are dismissed. Appeals dismissed.