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1995 DIGILAW 189 (GUJ)

STATE OF GUJARAT v. BILLAH AHMAD UMARALI SHEIKH

1995-03-30

D.G.KARIA

body1995
D. G. KARIA, J. ( 1 ) THIS acquittal appeal is directed against judgment and order dated September 24, 1986 passed by the learned Judicial Magistrate, First Class, khambhat, in Criminal Case No. 1322 of 1986, acquitting the respondents-accused for the offences punishable under Secs. 65 (a) (e) (g) and 66 (1) (b) and 81 of the bombay Prohibition Act, 1949 and for the offence punishable under Sec. 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "ndps Act" ). ( 2 ) BY the charge at Exh. 6, it is alleged that at about 5-30 p. m. on January 21, 1986, the accused persons possessed Ganja weighing 210 kilograms and Charas weighing 87 grams, totally worth Rs. 1,68,206. 00, without any pass or permit and in contravention of the provisions of the Bombay Prohibition Act and NDPS Act at their house, situated at Vaghriwad, Saifibaug in Khambhat and thereby committed the aforesaid offences. ( 3 ) MR. K. P. Raval, learned Addl. Public Prosecutor, appearing for the appellant- state, raised an important question of law relating to jurisdiction of the learned magistrate in trying the offence under the NDPS Act. He submitted that the learned Magistrate failed to appreciate that the respondents were tried for the offence punishable under Sec. 20 (b) (i) of the NDPS Act and the said case is triable only by the learned Sessions Judge and that the learned Magistrate had no jurisdiction to try the case and the order of acquittal is not only erroneous but illegal and void ab initio. There is substance in this submission of Mr. Raval and therefore, instead of dealing with and disposing of the case on merits, the question as to jurisdiction of the Court of learned JMFC in trying the offence under NDPS Act is examined. ( 4 ) SECTION 36 of the NDPS Act provides for constitution of Special Courts. Section 36 contemplates that the Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. Sub-sec. (2) of Sec. 36 provides that a Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Sub-sec. Sub-sec. (2) of Sec. 36 provides that a Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Sub-sec. (3) of said Sec. 36 provides that a person shall not be qualified for appointment as a Judge of the special Court unless he is, immediately before such appointment, a Sessions Judge, or an Additional Sessions Judge. Section 36a, which came to be inserted by Sec. 11 of the NDPS (Amendment) Act No. 2 of 1989, provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), - (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has 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. Clause (b) of sub-sec. (1) of Sec. 36a further provides where a person accused or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-sec. (2) or sub-sec. (2a) of sec. 167 of the Code of Criminal Procedure, 1973 (II of 1974), such Magistrate may authorise the detention of such person in custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate. ( 5 ) IT is true that when the respondents-accused were tried for the offences punishable under Sec. 20 (b) (i) of the NDPS Act, the aforesaid Sec. 36a was not on the statute book, as it came to be inserted in the year 1989. Section 36 of the unamended NDPS Act, as it was applicable to the present case, provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), any offence punishable under Secs. 26, 27 and 32 of this Act may be tried summarily by a Magistrate of First Class. Section 37 of the said Act provided that every offence under NDPS Act shall be cognizable and that the offences under secs. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29 and 30 were (a) warrant cases; (b) non-bailable ones; (c) triable by Court of Session. Section 37 of the said Act provided that every offence under NDPS Act shall be cognizable and that the offences under secs. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29 and 30 were (a) warrant cases; (b) non-bailable ones; (c) triable by Court of Session. . . . Thus, by virtue of sec. 37 of the NDPS Act, the offence punishable under Sec. 20 of the NDPS Act was exclusively triable by the Court of Session. Apart from that, Sec. 20 of the ndps Act prescribes sentence of rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees in case of conviction for the offence punishable under Sec. 20 (b) (i), of producing, manufacturing, possessing, selling, purchasing, transporting of Ganja in contravention of the said Act. Section 20 (b) (ii) provides sentence for offence of producing or possessing or purchasing, selling etc. of Cannabis, other than Ganja, of rigorous imprisonment for a term which shall not be less than ten years, which may be extended to twenty years and shall also be liable to fine which shall not be less than rupees one lakh and which may extend to rupees two lakhs. In the present case, the respondents are accused of the commission of offence under Sec. 20 (b) (ii) of the NDPS Act, as they are alleged to have possessed 87 grams of Charas (Cannabis ). In view of these provisions relating to sentence, the learned Judicial magistrate cannot have jurisdiction and power to try the offence punishable under sec. 20 (b) (ii) of the NDPS Act. In this view of the matter, the judgment and order of acquittal passed by the learned Magistrate is clearly without jurisdiction. ( 6 ) THE Supreme Court in the case of Matukdhari Singh v. Janardan Prasad, reported in AIR 1966 SC 356 , held that it was improper for the Magistrate to ignore offences over which he had no jurisdiction and to choose for trial only such offences over which he had. It is the duty of the Magistrate to frame a charge under Sec. 20 (b) (ii) of the NDPS Act in the present case and commit the accused to the Sessions Court for trial. It is the duty of the Magistrate to frame a charge under Sec. 20 (b) (ii) of the NDPS Act in the present case and commit the accused to the Sessions Court for trial. The learned Magistrate has committed error of law in ignoring the relevant provisions of the NDPS Act and assumed the jurisdiction which he did not have to try the case under the NDPS Act. The learned Magistrate should have applied his mind to the gist of the offence and he ought have seen that the Cannabis and Ganja worth Rs. 1,60,000. 00 and odd was possessed by the accused persons. If the learned Magistrate had properly perused the case papers, he would have seen that the offences punishable under Sec. 20 (b) (i) and (ii) of the ndps Act were the main offences, and the offences under the provisions of the prohibition Act were substituted. Under the circumstances, it was quite improper for the learned Magistrate to choose for trial those offences in respect of which he had no jurisdiction and to ignore the relevant provisions of the NDPS Act. It was the duty of the learned Magistrate, on examination of police papers, to commit the respondents-accused to stand their trial before the Court of Session. ( 7 ) IN the above premises, the order of acquittal deserves to be quashed. The learned Magistrate having no jurisdiction to try the offence under the NDPS Act, the order of acquittal is void ab initio and illegal. ( 8 ) IN the result, the appeal is allowed. The impugned judgment and order of acquittal is quashed and set aside. The case is remanded back to the Court of the learned Judicial Magistrate, First Class, Khambhat for necessary proceedings of committal to the concerned Special Court for the trial of the respondents-accused. ( 9 ) AT this, stage, it is urged on behalf of the respondents-accused that since the admission of the appeal on December 19, 1987, the respondents-accused are on bail and they should be allowed to continue on bail. The matter is remanded back. The accused persons should, therefore, make necessary application for bail to the concerned Special Court and on making such application by the accused persons, it will be decided on merits and in accordance with the law by the said special Court. The appeal is accordingly allowed. The matter is remanded back. The accused persons should, therefore, make necessary application for bail to the concerned Special Court and on making such application by the accused persons, it will be decided on merits and in accordance with the law by the said special Court. The appeal is accordingly allowed. ( 10 ) THE respondents-accused shall surrender before the Court of learned Judicial magistrate, First Class, at Khambhat on or before April 17, 1995. The case being quite old, the Committal Court and the Special Court are directed to dispose of the case as expeditiously as possible, but not later than June 30, 1995. .