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2006 DIGILAW 2742 (ALL)

ASHOK KUMAR YADAV v. UNION OF INDIA

2006-11-10

V.D.CHATURVEDI

body2006
V. D. CHATURVEDI, J. Criminal Revision has been filed against the order dated 12-12-2003 passed in S. T. No. 21 of 2000 by Sri Harish Kumar, Additional Sessions Judge/f. T. C. No. 1, District Sidharthnagar whereby the revisionists prayer for quashing the proceedings (of Sessions Trial No. 21 of 2000) was rejected. 2. The relevant facts are that on 22-6-2000 the revisionist was found in possession of 460 Kilograms of illicit Nepali Charas in a special cavity made in a vehicle (TATA 407 No. UP 81 8223) while it was being brought into the territory of India from Nepal side. The revisionist and his companions were arrested. Sri K. L. Gautam, Inspector of Customs, posted at Land Custom Station Barni, therefore, filed a complaint under Section 8, 20 (b) (ii), 23, 27a and 29 of N. D. P. S. Act, 1985. The Sessions Trial No. 21 of 2000 relating to the said recovery was transferred by the learned Sessions Judge, Sidharthnagar to the Court of Additional Sessions Judge (F. T. C. No. 1) where the revisionist gave an application to the effect that the complaint ought to have been filed only by an officer who was above the rank of Inspector in the Department of Customs, Central Excise, Narcotics etc. In support of his arguments he relied upon a notification published in the Gazette of India, Extra Part II. Section 3 (ii) dated 27th September, 1989 (hereinafter called as the notification ). After the hearing, the learned Addl. Sessions Judge rejected the said application by an order dated 12-12-2003. Feeling aggrieved by the said order the revisionist Ashok Kumar Yadav has come up in revision. 3. In revision before me two points are raised by the learned Counsel for the revisionist. These are: (i) that in view of the notification cited above the complaint ought to have been filed only by an officer who was above the rank of Inspector and not by an Inspector. In this regard he relied upon the aforesaid notification and also upon a judgment of Honble Supreme Court reported in 2003 (46) A. C. C. 606, State through Narcotics Control Bureau v. Kulwant Singh. (ii)That F. T. C. or the Court of Addl. Sessions Judge was not competent to try the offence under the N. D. P. S. Act. In this regard he relied upon the aforesaid notification and also upon a judgment of Honble Supreme Court reported in 2003 (46) A. C. C. 606, State through Narcotics Control Bureau v. Kulwant Singh. (ii)That F. T. C. or the Court of Addl. Sessions Judge was not competent to try the offence under the N. D. P. S. Act. In support of this contention he drew my attention to Section 36-D and argued that the proceedings before the Fast Track Court (Court of Additional Sessions Judge) were without jurisdiction. He added to his argument that since the special Court relating to N. D. P. S. Act was not designated for the district of Sidharthnagar, it was only the Sessions Judge who could have tried the offence under the N. D. P. S. Act. According to him the jurisdiction of other Courts was barred by the Act. 4. Firstly I propose to take the first point raised by the learned Counsel for the revisionist. The relevant notification for the sake of convenience is being reproduced below: "ministry of Finance (Department of Revenue) Notification No. S. O. 763 (E) dated September 27, 1989 published in the Gazette of India Extra, Part II, Section 3 (ii) dated 27th September, 1989, p. 2 (No. 13/89- F. No. 661/99/89-OPIUM) In exercise of the powers conferred by clause (d) of sub-section (1) of Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby authorises the officers of and above the rank of Inspector in the Department of Customs, Central Excise Narcotics, Revenue Intelligence Central Economic Intelligence Bureau and the Narcotics Control Bureau under the Ministry of Finance, Government of India for filing of complaints relating to an offence under the said Act before Special Courts. " 5. The words ". . . . . . . . . . . . . . . . . the officers of and above the rank of Inspector. . . . . . . . . . . " occurring in the aforesaid notification clearly show that the officers of the rank of Inspector and officers above the rank of Inspector both were authorised by the above Notification to file the complainant. 6. . . . . . . the officers of and above the rank of Inspector. . . . . . . . . . . " occurring in the aforesaid notification clearly show that the officers of the rank of Inspector and officers above the rank of Inspector both were authorised by the above Notification to file the complainant. 6. It is manifest from the word and occurring after the words "the officers of" and before the word "above the rank of that the officers of two ranks were authorised by the Central Government to file the complaint. The Central Government thus through the said Notification authorised (i) the officers of the rank of Inspector and (ii), the officers above the rank of Inspector of the departments mentioned in the notification. Sri K. L. Gautam was an officer of the rank of Inspector in Custom Department and therefore, under the aforesaid Notification, he was fully competent to file the complaint. 7. The learned Counsel for the revisionist drew my attention to para 10 of the judgment given by the Honble Apex Court in Criminal Appeal No. 1139 of 2000, State through Narcotics Control Bureau v. Kulwant Singh, reported in 2003 (1) JIC 742 (SC) : 2003 (46) A. C. C. 60. In Para 10 of the judgment, the aforesaid notification is referred. A perusal of para 10 of the above judgment alongwith the said notification, goes to show that the words "of and" occurring in the notification between the words "authorised the officers" and the words "above the rank of, is not printed in its reference given in para No. 10 of the judgment. This inadvertent omission of printing of the words "of and" becomes apparent when para 10 of the judgment is compared with the language of the Notifications. The perusal of the judgment shows that the legality or the propriety of the notification was neither considered nor was discussed in the judgment nor the notification was set aside in the judgment by the Honble Apex Court. But on the other hand the notification was simply referred therein. Hence on the basis of such inadvertent omission of the printing of the words "of and" it will not be proper to infer that the Honble Supreme Court laid down any principle that the officer of the rank of Inspector (authorised by notification) were precluded from filing the complaint. 8. Hence on the basis of such inadvertent omission of the printing of the words "of and" it will not be proper to infer that the Honble Supreme Court laid down any principle that the officer of the rank of Inspector (authorised by notification) were precluded from filing the complaint. 8. Thus the arguments of the learned Counsel for the revisionist that the officers of the rank of Inspector are not authorised by the Notification to file the complainant is devoid of merit and is hereby rejected. 9. Another argument of the learned Counsel for the revisionist is that the Fast Track Court or the Court of Additional Sessions Judge was not competent to try the offence under the N. D. P. S. Act. 10. Section 36 of N. D. P. S. Act prescribes that for providing speedy trial of the offences under the N. D. P. S. Act the Special Court shall be constituted. Sub-Section (1) of Section 36-D of N. D. P. S. Act empowers the Court of Sessions to try all such cases which are triable by a Special Court if the Special Court is not constituted for the said area under Section 36 of the Act. It is not disputed that for district Sidharthnagar no Special Court was constituted under Section 36 of N. D. P. S. Act, therefore, in district Sidharthnagar the Court of Sessions was empowered to try the offences relating to the N. D. P. S. Act. Now the question is whether the Court of Session means and includes only the Court of Sessions Judge or it also includes the Courts presided over by the Additional Sessions Judge. 11. The perusal of sub-section (1), (2) and (3) of Section 9 of the Cr. P. C. is beneficial in this regard. Hence these sub- sections are being reproduced below: "9. Court of Session.- (1) The State Government shall establish a Court of session for every sessions division. (2) Every Court of session shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4 ). . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . (6 ). (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4 ). . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . " 12. It is manifest from the perusal of the aforesaid provisions of Section 9 of Cr. P. C. that Additional Sessions Judges and Assistant Sessions Judges are also appointed to exercise the jurisdiction in a "court of Session". The Court of Session includes the Court of Sessions Judge, the Courts of Additional Sessions Judges and also the Court of Assistant Sessions Judges in view of Section 9 of the Cr. P. C. Thus there is a distinction between the "court of sessions Judge" and the "court of Sessions". The Court of Sessions Judge is presided over by the Sessions Judge whereas the Court of Sessions includes all the Courts whether it is presided over by the Sessions Judge or by the Additional Sessions Judge or by Assistant Sessions Judge. Section 36-D empowers the "court of Sessions" and not the "court of Sessions Judge" to try the offences relating to the N. D. P. S. Act in the absence of the Special Court constituted under Section 36-D of the N. D. P. S. Act. 13. The Court where the case of the revisionist was pending was the Court of Additional Sessions Judge/f. T. C. (I) presided over by the Additional Sessions Judge hence the presiding officer of the said F. T. C. was exercising jurisdiction in a Court of sessions in view of sub-section (3) of Section 9 of Cr. P. C. and was fully competent under Section 36-D of the N. D. P. S. Act to try the offences relating to N. D. P. S. Act. 14. In view of what has been discussed above I am unable to agree with the arguments of the learned Counsel for the revisionist. I hold that Sri K. L. Gautam, Inspector of Custom was fully authorised to file the complaint and that the Fast Track Court presided over by the Additional Sessions Judge was fully competent to try the offences relating to N. D. P. S. Act. I hold that Sri K. L. Gautam, Inspector of Custom was fully authorised to file the complaint and that the Fast Track Court presided over by the Additional Sessions Judge was fully competent to try the offences relating to N. D. P. S. Act. 15. The revision lacks merits hence it is dismissed with cost of Rs. 2000/- payable to the Union of India as the revision was vexatious. The interim order is hereby vacated. 16. The trial relates to the recovery of heavy quantity of illicit Nepali charas. The learned trial Court is, therefore, desired to conclude the trial expeditiously if possible within 6 months. 17. The office is directed to send the record to the trial Court within a week. 18. Certify this judgment to the trial Court. Revision dismissed. .