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Madhya Pradesh High Court · body

2002 DIGILAW 175 (MP)

Mohd. Ayub v. Union of India

2002-02-14

S.L.KOCHAR

body2002
Judgment ( 1. ) THE petitioner has filed this revision against the order dated 10-12-2001, passed by the Special Judge (NDPS, Act) Mandsour in Special Criminal Case No. 69/97 whereby the Trial Court has rejected his application filed under Section 228, Cr. PC read with Section 36-A of NDPS Act for sending the case to the Competent Court for trial according to law. ( 2. ) SUCCINCTLY the grievance of the petitioner is that he is facing Special Case No. 69/97 pending before the Special Judge Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the "act" for convenience ). From the possession of the petitioner 20 grams Opium was seized which falls within the small quantity, punishable with six months imprisonment as per the amended Act, 2001. In view of the amended Act, 2001, under Section 36-A, Special Courts are having jurisdiction to try the case which are punishable with imprisonment for a term of more than three years whereas in the present case maximum punishment is prescribed only for six months therefore the Special Court, Mandsour has no jurisdiction to try the case and same should be sent to Judicial Magistrate First class for trial. The Trial Court has rejected his application on the ground that under Section 36-A (1) (a) of the Act, there is no prohibition about the trial of offence punishable with less than 3 years and in view of transitional provisions under Section 36-D of the amended Act Special Court has jurisdiction to try the offence. ( 3. ) FOR deciding the aforesaid controversy it would be apposite to reproduce the amended Sections of 36-A (1) (a), 36-D and 41 of the Act. ( 3. ) FOR deciding the aforesaid controversy it would be apposite to reproduce the amended Sections of 36-A (1) (a), 36-D and 41 of the Act. Section 36-A. Offences triable by Special Courts.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) All offences under this Act which are punishable with imprisonment for a term of more than three years 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; Section 36-D. Transitional Provisions.-- (1) Any offence committed under this Act on or after commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, which it triable by a Special Court shall, until a Special Court is constituted under Section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 be tried by a Court of Session. (2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 are pending before a Court of Session, then, notwithstanding anything contained in Sub-section (1), such proceeding shall be heard and disposed of by the Court of Session : Provided that nothing contained in this Sub-section shall affect the power of the High Court under Section 407 of the Code of Criminal Procedure, 1973 to transfer any case or class of cases taken cognizance by a Court of Session under Sub-section (1 ). Section 41. Application of this Act to pending cases.-- (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the Principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force. ( 4. ) LEARNED Counsel for the petitioner in support of his contention has relied upon a decision rendered by Full Bench of Nagpur High Court Abdul Rauf v. Mohammad Umar and Anr. (FB) (AIR 1949 Nagpur 137 ). The relevant paragraph, on which emphasis has been placed is as under :- Omission to comply with the provisions of Section 3 or 5 is an "offence" under Section 10 within the meaning of Section 3 (37), General Clauses Act and Section 4 (1) (o), Criminal Procedure Code. Since Section 10 does not specify the Court by which this offence is to be tried, Sub-section (2) of Section 29, Criminal Procedure Code comes into play and the offence is triable by Courts set out in Schedule 2, Criminal Procedure Code. ( 5. ) THE trial of the petitioner is pending before the Special Court, Mandsour since 1997 which is clear from its Special Case No. 69 of 1997. There is no dispute that after substitution of new section for Section 36-A by amended Act of 2001, the Special Court situated for the area in which the offence has been committed has jurisdiction to try all offences under this Act which are punishable with imprisonment in a term of more than three years meaning thereby the Special Court has ceased of jurisdiction for trying the offences punishable with less than three years. Newly amended Section 36-D about transitional provisions are not applicable because this transitional provisions are made applicable for only those areas where the Special Courts are not situated under Section 36 of the Act. The cases shall be tired by Court of Sessions. The case of the petitioner is already pending before Special Court, Mandsour duly established under the provision of Section 36 of the Act therefore, Section 41 of amended NDPS Act, 2001 reproduced (supra) will come into play and according to the provisions of this section all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provision of Principal Act as amended by this Act. It is crystal clear that this provision is giving fullest jurisdiction to the Special Court as well as to the Sessions Court for disposing of the pending cases in accordance with the provision of Principal Act. Therefore, the Special Court, Mandsour before whom the Special Case No. 69/97 of the petitioner is pending has jurisdiction to try the case and dispose of in accordance with the provision of Principal Act. The decision (supra) relied upon by the Counsel for the petitioner is not applicable in the present case because under Section 10 of the General Clauses Act there was no provision specifying the Court by which the concerned offence was to be tried therefore trial was to be conducted in accordance with the provision of Sub-section (2) of Section 29, Cr. PC. In the present case special provisions for trying the offence committed punishable under the provisions of NDPS Act are specifically prescribed, therefore, question of invoking the provision for trial of the cases enumerated in Cr. PC are not applicable. ( 6. ) THE Trial Court has erred in interpreting Section 36-A (1) (a) contrary to the principle of interpretation of statute. It should have given plain meaning to that provision instead of adding by its own that there is no prohibition for trying the cases punishable less than three years, if this analogy is applied then the provision of Cr. PC giving jurisdiction to different Courts for trial of offences would become redundant and any Court can try any offences. ( 7. ) COUNSEL for the applicant as well as Court below have failed in considering the provision under Section 41 of amended Act giving specific provision for trail of pending cases. In the result, the revision being devoid of substance is hereby dismissed.