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2000 DIGILAW 1220 (RAJ)

State of Rajasthan v. Kalu Ram

2000-09-27

BHAGWATI PRASAD

body2000
JUDGMENT 1. - The State has come up in this case for cancellation of the bail granted to the accused person. 2. The bail to the accused was granted by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Pratapgarh Camp Chittorgarh on 15.6.1999. The Court of Special Judge, S.C. S.T. Cases heard the case in the back ground that on that day the Sessions Judge was on leave. 3. The State has come up before this Court for cancellation of bail on the ground that the Special Judge was not empowered to work as Presiding Officer of the Court of Special Judge, N.D.P.S. Cases. Under the N.D.P.S. Act the powers of hearing of N.D.P.S. case has been delegated to the Sessions Judge. But the same cannot be delegated to any other officer by the Sessions Judge. They can either be exercised by the Sessions Judge or by the Special Judge, N.D.P.S. cases. The delegation of power is only possible by the State Government and there is no power with any other authority to delegate the power of hearing of the N.D.P.S. cases to any other authority barring the Special Judge, N.D.P.S. cases and the Sessions Judge. 4. The accused has relied upon a letter of the District and Sessions Judge, Pratapgarh dated 5.8.1998 whereby emergency powers were delegated to the Special Judge, S.C. ST. Cases, Pratapgarh to dispose of the urgent and routine work in his absence. 5. 4. The accused has relied upon a letter of the District and Sessions Judge, Pratapgarh dated 5.8.1998 whereby emergency powers were delegated to the Special Judge, S.C. ST. Cases, Pratapgarh to dispose of the urgent and routine work in his absence. 5. The argument of the counsel for the State is that the empowerment claimed by the accused person by the letter dated 5.8.1998 cannot be effective in view of the provisions of Section 36 A of the Narcotic Drugs and Psychotropic Substances Act, 1985, which recites that: "36 A. Offices triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 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; (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such 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 : Provided that where such magistrate considers - (i) when the person is forwarded to him as aforesaid or (ii) upon or at any time before the expiry of the period of detention authorised by him. that the detention of such is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may exercise, in relation to the persons forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1973) in relation to an accused persons in such case who has been forwarded to him under that section; (d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying on office under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charge at the same trial. (3) Nothing contained in this section shall be deemed to effect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section included also reference to a Special Court constituted under section 36." 6. There was no empowerment given by the High Court under Section 36A(3) to any other officer and, therefore, it cannot be said that the empowerment claimed by the accused under the order dated 5.8.1998 is sufficient enough to vest the power of granting bail on the Special Judge, S.C. S.T. Cases. That being the position, the powers exercised by the Special Judge, S.C. S.T., Cases are on which were without jurisdiction. 7. Learned counsel for the accused in his oral submissions and in reply has heavily relied on the fact that the Special Court was not created and the Sessions Judge was on leave. The charge was held by the Special Judge, SC ST case and, therefore, the powers could be exercised by the Special Judge, SC ST cases. 8. I have considered the rival submissions. 9. The charge was held by the Special Judge, SC ST case and, therefore, the powers could be exercised by the Special Judge, SC ST cases. 8. I have considered the rival submissions. 9. In view of the provisions of Section 36A of the N.D.P.S. Act it is the Special Judge, N.D.P.S. cases or the Sessions Judge who could handle the N.D.P.S. cases. In terms of the Section 36A(3) of the N.D.P.S. Act the powers under Section 439 Cr.P.C. could be delegated by the High Court to any other court. No such order is in existence. The only order in existence is the order dated 5.8.1998 which is passed by the Sessions Judge who under the Act has no authority to pass any such order. Further, the State Government vide its notification dated 21.5.1997 has established a line court of N.D.P.S. Cases Chittorgarh as the Additional Sessions Judge, Chittorgarh which signifies that the order passed on 15.6.1999 was not by the link court or the court which had the power under the N.D.P.S. Act to hear and dispose of the bail application. That makes the order of bail without jurisdiction and an order without jurisdiction cannot be sustained. That being the position, the order passed by the Special Judge, SC ST Cases is set aside being without jurisdiction and, therefore, the bail granted to the accused by that court is rejected. The accused be taken into custody by trial court forthwith. The trial which has been withheld be expedited. The record of the trial court be sent back forthwith.With the aforesaid observations, the petition is allowed.Application allowed. *******