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2004 DIGILAW 640 (CAL)

IN RE:Golam NABI v. STATE

2004-09-22

DEBIPRASAD SENGUPTA

body2004
DEBIPRASAD SENGUPTA, J. ( 1 ) IN the present application, the petitioner has challenged an order dated 8. 6. 04 passed by the learned Special Judge under the N. D. P. S. Act, 6th court, Barasat in Case No. No. 63/1993 under Section 21/27 of the Narcotic drugs and Psychotropic Substance Act. ( 2 ) THE petitioner was brought under arrest with 1. 485 gms. of heroin in his possession. He was taken into custody on 8. 9. 93 and was released on bail on 29. 1. 94. After being released on bail, the petitioner absconded for a long period and ultimately, on the strength of warrant of arrest, he was arrested again and was brought to the learned Judge, Special Court on 15. 12. 03 and since then the petitioner is in custody. ( 3 ) IT is the contention of the learned Advocate of the petitioner that since the contraband article being 1. 485 gms. of heroin comes within the definition of "small quantity" which is punishable; with imprisonment, which may extend to six months or with fine which may extend to Rs. 10,000/- and since the petitioner/accused has already suffered imprisonment for more than six months, the impugned proceeding should be quashed only on that ground. In support of her contention, the learned Advocate of the petitioner relies upon a judgment of this Court reported in 2004 C Cr LR (Cal) 287 (Subrata mondal v. The State of West Bengal ). From a reading of the said judgment, it appears that the accused/petitioner was found in possession of 'ganja' which came within the definition of 'small quantity' and he suffered detention for about nine months, which was more than the sentence provided for the offence under the Act, and as such, in exercise of power under Section 482, cr. P. C. ,' the proceeding before the learned Judge, Special Court, was quashed. Relying upon the aforesaid judgement, the learned Advocate of the petitioner submits that since the present proceeding is pending trial, the N. D. P. S. (Amendment) Act, 2001 is applicable in the present case and the accused petitioner is entitled to get the benefit of the said Amendment Act of 2001. ( 4 ) MR. Roy, learned Advocate appearing for the State, in his usual fairness, supports the contention of the learned Advocate of the petitioner. ( 4 ) MR. Roy, learned Advocate appearing for the State, in his usual fairness, supports the contention of the learned Advocate of the petitioner. ( 5 ) I have heard the learned Advocate of the respective parties. In my considered view, there is sufficient merit in the submission made by the learned Advocate of the petitioner. Admittedly, the contraband article being 1. 485 grams of heroin, which was seized from the possession of the petitioner, comes within the definition of 'small quantity' and considering the fact that the accused petitioner is in custody for more than a year, any further detention of the petitioner would be clearly violative of Article 21 of the constitution of India. Considering the facts and circumstances of the case, I am of the view that the present proceeding should not be allowed to continue any further since the petitioner has already suffered imprisonment for more than the period of punishment provided in the said section. ( 6 ) ACCORDINGLY, the present application is allowed and the proceeding being N-63/1993 pending in the Court of learned Special Judge, N. D. P. S. Act under Section 21/27 of the N. D. P. S. Act is hereby quashed. Since the petitioner has been in custody for more than a year, which is more than the maximum period prescribed under the Act (six months), the petitioner shall be set at liberty forthwith. ( 7 ) ANOTHER aspect of the matter, although, the same has not been brought to the notice of this Court by the learned Advocate of the petitioner, is that in view of the provision of Section 36a (a) of the Amendment Act, the offences under the N. D. P. S. Act, which are punishable with imprisonment for a term of more than three years, shall be triable only by the Special Court. It is clear from the said provision that the offences, which are punishable with imprisonment for a period less than the period prescribed in Section 36a (a) cannot be tried by the Special Court and such offences are to be tried by the learned Magistrate. It is clear from the said provision that the offences, which are punishable with imprisonment for a period less than the period prescribed in Section 36a (a) cannot be tried by the Special Court and such offences are to be tried by the learned Magistrate. This, in my considered view is a serious illegality and it is very often found by this Court that offences relating to contraband articles which come within the definition of 'small quantity' and punishable with imprisonment for a period which may extend to six months or with a fine, which may extend to Rs. 10,000/-, are being tried by learned Special Judges, which is absolutely beyond the jurisdiction of the Special Courts. Accordingly, it is directed that the Registrar General of this Court shall communicate this order to all the learned District and Sessions Judges in all the Districts of the state of West Bengal, who will circulate the same to the concerned Judges, special Courts under the N. D. P. S. Act. ( 8 ) THE present revisional application is accordingly, disposed of.