Judgment ( 1. ) THE Special Judge (NDPS), Mandla has referred the matter under section 395 (2) of the Code of Criminal Procedure, 1973 (in short the Code)for the decision of the High Court on the following question of law:-If the Special Judge (NDPS) is incompetent to take cognizance of the offences punishable with imprisonment for a term which may extend up to three years under the Narcotic Drugs and psychotropic Substances Act, 1985, then which Court should try these cases ? ( 2. ) THE relevant facts giving rise to the above question of law are:-The Special Judge (NDPS) has been given jurisdiction to try the cases arising out of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). The distribution memos Annexures A and b were issued by the District and Sessions Judge, Mandla for the year 2004 and 2005 and it was directed that all the cases arising out of the Act and connected bail applications shall be registered in the Court of Special Judge (NDPS), mandla. Thereafter, the District and Sessions Judge, Mandla issued another distribution memo Annexure C on 16-1-2006 for the year 2006 by which the special Judge (NDPS) was authorised to register only those cases as per provisions of Section 36-A of the Act, which are punishable with imprisonment for a period of more than three years and this distribution memo further directs to register connected bail petitions. ( 3. ) AS per distribution memo Annexure D issued by the Chief Judicial magistrate, Mandla on 10-1-2006, the Court of Chief Judicial Magistrate, mandla was authorised to dispose of cases arising out of the Act where the punishment of imprisonment for a period of up to three years has been provided. ( 4. ) THE Special Judge has further submitted that the cognizance was taken in all type of cases arising out of the Act and these cases were disposed of by his predecessors and by him irrespective of the fact that in some cases, the cognizance was taken under Section 8 read with Section 20 (b) (ii) (A) of the act, where the punishment for six months imprisonment has been provided. It is further submitted that the accused preferred the appeals against the judgments passed by the Special Judges in such type of cases and appeals were also dismissed by the High Court and for instance, the Special Judge has also referred the judgment Annexure E passed in Criminal Appeal No. 135/05 by the High court. ( 5. ) IT is also submitted by Special Judge that at the time of annual inspection, the District and Sessions Judge found that the cognizance has been taken illegally by the Special Judge in Special Case No. 4/05, M. P. State Vs. Gulab Singh, because it was the case under Section 8 read with Section 20 (b) (ii) (A) of the Act. According to Special Judge, the cognizance was taken in such type of cases on the basis of distribution memos issued by the District and sessions Judge from time to time. As per provisions of the Act, the Court of special Judge is the Court of original jurisdiction. Since, the cognizance was taken by the Special Judge as per the provisions of distribution memos and the appeals were also dismissed by the High Court and the conviction and sentences were affirmed, therefore, the note of the District and Sessions Judge that the special Judge had taken cognizance illegally, was not proper. The Special Judge has also referred following five cases in his reference which are pending under section 20 (b) (ii) (A) of the Act in his Court and it is also informed that these cases are at the stage of evidence:- (a) Special Case No. 4/05, M. P. State Vs. Gulab Singh (b) Special Case No. 9/05, M. P. State Vs. Madanlal (c) Special Case No. 10/05, M. P. State Vs. Mahulal (d) Special Case No. 14/05, M. P. State Vs. Kesudas (e) Special Case No. 16/05, M. P. State Vs. Pammi alias Pramod. ( 6. ) BEFORE coming to the legal point raised in this reference, it would be proper to point out the defect in this reference. The Special Judge, while referring the matter to the High Court under Section 395 (2) of the Code, failed to give his opinion on the point in issue, though, he has given various facts giving rise to this reference. The Special Judge, while referring the matter to the High Court under Section 395 (2) of the Code, failed to give his opinion on the point in issue, though, he has given various facts giving rise to this reference. Before making any reference, the Judge/magistrate has to go into the various provisions of relevant laws and then he should record his opinion on the law point under reference and then only, the matter can be referred to the High Court for the decision. The defect should have been noticed by the Office as soon as the reference was made but, now it is too late because the cases are pending in the Court of Special Judge without any progress, therefore, it would be futile exercise to send back the reference to the special Judge for recording his opinion. The reference can be and should be disposed of by this Court without asking the Special Judge to record his opinion. ( 7. ) SPECIAL Courts have been constituted under Section 36 of the Act. Section 36-A (1) (a) of the Act provides as follows:- "36-A. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (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. " It has specifically been mentioned in the above mentioned provision that the offences which are punishable with imprisonment for more than three years under the Act, shall be triable by the Special Court constituted for the area. It means the offences punishable with imprisonment for more than 3 years under this Act cannot be tried by any Court other than the Special Court constituted under this Act. ( 8. ) IT has not been specified in this Act as to which Court is empowered to try the offences punishable with imprisonment up to three years. Where a special enactment does not provide the jurisdiction of the Court to try a particular offence, then such offence would be triable as per First Schedule provided under the Code. ( 8. ) IT has not been specified in this Act as to which Court is empowered to try the offences punishable with imprisonment up to three years. Where a special enactment does not provide the jurisdiction of the Court to try a particular offence, then such offence would be triable as per First Schedule provided under the Code. In the First Schedule, it has been provided that where the offence is punishable with imprisonment for three years and upwards but, not more than seven years, it shall be triable by the Magistrate First Class. Since, it is no where provided under the Act that which Court would try the offences punishable up to three years, the provisions of the Code would apply and as per first Schedule, such type of offences shall be triable by the Magistrate First class. ( 9. ) IN this context, the decision rendered in case of A. R. Antulay Vs. Ramdas Sriniwas Nayak and another, AIR 1984 SC 718 , may be referred, wherein the Apex Court has ruled thus:- "as a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. " While dealing with the matter of appellate jurisdiction, the Apex Court observed in the case of Dwarka Dass Vs. State of Haryana, (2003) 1 SCC 204 , that :- "it is with this background that the Code of Criminal Procedure has conferred on to the hierarchy of the Courts specific powers to deal with the matter as it seems just and proper. The words "just and proper" used herein do not however, mean and imply an arbitrary exercise of power - powers are circumscribed and have to be exercised in accordance with the provisions of law and not dehors the same. " Section 36-A of the Act specifically confers the powers upon the Special courts constituted under Section 36 of the Act to try only those cases which are punishable with imprisonment for a term of more than three years. " Section 36-A of the Act specifically confers the powers upon the Special courts constituted under Section 36 of the Act to try only those cases which are punishable with imprisonment for a term of more than three years. It means the offences punishable up to three years under the Act are not triable by the special Courts. Shri S. C. Datt, learned Senior Counsel, who assisted the Court, also argued that in view of various provisions of the Code, the Court of Special judge is not competent to take the cognizance where the offences are punishable upto three years under the Act and only the Court of Magistrate first Class is empowered to take cognizance as per First Schedule of the Code. ( 10. ) THE Special Judge referred three distribution memos prepared and issued by the District and Sessions Judge, Mandla for the years 2004,2005 and 2006. The District and Sessions Judge issued work distribution memo annexures A and B and as per sub-column (3) of column No. 3 of these two distribution memos the Special Judge (NDPS) was authorized to register the cases and connected bail applications arising out of the Act. In the next distribution memo issued for the year 2006, it was directed that the cases and connected bail applications be registered as per provisions of Section 36-A of the Act. On a perusal of all these distribution memos, I noticed that the District and Sessions Judge assigned the work of only registration of the cases and connected bail applications arising out of the Act to the Special Judge. The word registration (Panjiyan) has been used unnecessarily in these distribution memos. The word registration used in distribution memos indicates that the Special judge was authorized only to register the cases and probably, he was not authorized to try and dispose of those cases and connected bail applications. Though, it has got no adverse effect on the trails pending or disposed of by the special Judge but, it is duty of the District and Sessions Judge to remain more cautions at the time of preparation and issuance of memo of distribution of business. ( 11. ) IT has been provided under Section 10 (2) of the Code that the sessions Judge may, from time to time, make rules consistent with the Code as to the distribution of business. ( 11. ) IT has been provided under Section 10 (2) of the Code that the sessions Judge may, from time to time, make rules consistent with the Code as to the distribution of business. The Sessions Judge has no power to make any rule for distribution of work or business against the existing laws. The distribution memo should always be prepared as per provisions of the laws. The sessions Judge (NDPS) to try or to register those cases, where the offences under the Act, were punishable up to three years because as per First Schedule of the Code, the Court of Magistrate First Class is competent to take cognizance in such type of cases. ( 12. ) NOW, it would be proper to consider the fact of taking cognizance by special Judge in those case where the offences are punishable with imprisonment up to three years. According to reference, during annual inspection, the District and Sessions Judge found that in one case, where the charge under Section 8 read with Section 20 (b) (ii) (A) of the Act has been framed, the cognizance was taken illegally by the Special Judge. Another factor has also been referred by the Special Judge in this reference that in such type of cases where the accused have been convicted by the Special Judge, the accused preferred the appeals and the High Court also rejected the appeals and maintained the conviction of the appellants. Probably, the Special Judge, by referring the point of rejection of appeals preferred against the conviction in such type of cases, wanted to show indirectly that the taking of cognizance in those cases was not illegal though, the offences were punishable with imprisonment for the period up to 3 years under the Act. ( 13. ) IF a case is decided by the High Court or by the Apex Court, only the principles laid down in that case shall have binding effect. The Special Judge referred an appeal in the reference which was disposed of by the High Court but the point of jurisdiction or cognizance was neither raised by the appellant nor decided by the High Court. The Special Judge referred an appeal in the reference which was disposed of by the High Court but the point of jurisdiction or cognizance was neither raised by the appellant nor decided by the High Court. How can it be presumed on the basis of disposed of case by the High Court where the point of jurisdiction or cognizance was not considered that the Special Judge is empowered to take cognizance and to try those cases which are not covered under Section 36-A of the Act ? If no principle is laid down in a particular case or a particular law point neither raised nor decided by the High Court or by the Apex Court, the Lower Courts are not supposed to apply the facts of that case in the cases pending before them or presumptions should not be drawn. The Lower Courts are not allowed to draw presumptions on the basis of judgments of the Higher Courts. It is obligatory on the part of the Lower Courts to apply the principles laid down by Higher Courts in true sense. ( 14. ) IN the case of B. C. Chenna Reddy and others Vs. State of Andhra pradesh and another, AIR 1962 AP 267 , the Judge has expressed the view as under:- "it is obvious that under certain justifiable circumstances dependent on the facts of the case, the trial by a Court of higher level than the lowest level prescribed in the Schedule to the Code may be desirable in addition to being technically lawful. " ( 15. ) NO doubt, in certain justifiable circumstances, the trial by a Court of higher level can be held, though the offences are triable by the Court of lowest level but, the provisions of Section 26 (b) of the Code cannot be ignored where it has been provided as follows :- "26. (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by- (i) the High Court, or (ii) any other Court by which such offence is shown in the First schedule to be triable. (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by- (i) the High Court, or (ii) any other Court by which such offence is shown in the First schedule to be triable. " It is apparent from the provisions of Section 26 (b) of the Code that the offences under any other law shall be tried by such Court as specified in that law and if no such Court is specified in that enactment, the cases can be tried either by the High Court or by any other Court constituted under the Code and specified in this behalf in the First Schedule of the Code. ( 16. ) THE question, whether the Special Judge had taken cognizance rightly or wrongly in disposed of cases, cannot be considered in this reference because it is not subject matter of this reference and it cannot be decided by this court as to whether a failure of justice has in fact been occasioned or not in those cases. This can only be considered by the Court of appeal as provided under section 465 of the Code. ( 17. ) CHAPTER XXXV of the Code deals with different types of irregularities, errors and omission. In disposed of cases, the errors, omission and irregularities can be rectified by the Court of appeal subject to the provisions of section 465 of the Code. Where, the attention of the High Court is drawn to the irregularities or error committed during the pendency of the case and the matter is referred to the High Court for the decision, then a question arises whether the trial Court can be allowed to proceed with the case or not ? The answer is that the Trial Court cannot be allowed to proceed with such an irregularity or error. In the opinion of this Court, where, before final disposal of a case, the attention of the Court is drawn by the Judge/magistrate to the irregularity or error in its proceedings, it cannot, on the strength of Section 465 of the Code, allow the error or irregularity to remain uncorrected. In the opinion of this Court, where, before final disposal of a case, the attention of the Court is drawn by the Judge/magistrate to the irregularity or error in its proceedings, it cannot, on the strength of Section 465 of the Code, allow the error or irregularity to remain uncorrected. Where the error is brought to the notice of the Superior Court, it would be proper to get it correct rather than allow it to remain as it is and then to find out in the appeal whether prejudice was caused to the party or not. ( 18. ) THE Special Judge has referred five cases in which the charge under section 8 read with Section 20 (b) (ii) (A) of the Act has been framed against the accused of respective cases. This offence is punishable with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both. Considering the term of imprisonment provided under this Section, certainly the Court of Magistrate first Class is competent to take cognizance and to try these cases as provided under Section 26 (b) of the Code and as shown in the First Schedule. ( 19. ) IN view of the provisions contained in Section 26 (b) and First schedule of the Code, it is apparent that the cognizance has been taken erroneously by the Special Judge in all the five cases referred in the reference. The Court of Magistrate First Class is competent to try these cases and not the special Court constituted under Section 36 of the Act. Apart from that, there are no justifiable circumstances in all these five cases to come to this conclusion that it was desirable for the Special Judge to take cognizance in these cases. The distribution memos issued for the years 2004 and 2005 do not come under justifiable circumstances because these were not prepared in accordance with the law as far as the jurisdiction of Special Judge is concerned. Since, all the five cases are still pending, therefore, it would be proper for this Court to correct the error rather than allow it to remain as it is. ( 20. Since, all the five cases are still pending, therefore, it would be proper for this Court to correct the error rather than allow it to remain as it is. ( 20. ) IN the light of above discussion, the decision of this Court on the question of law referred by the Special Judge (NDPS) is as follows:-According to provisions of Section 26 (b) and the First Schedule of the Code, the Special Judge (NDPS) is not competent to take cognizance of the offences arising out of the Act where the punishment of imprisonment is up to three years and these cases are triable by the Court of Magistrate First Class. ( 21. ) BEFORE parting with this reference, it would be proper to pass the order in respect of five cases which are pending in the Court of Special Judge, mandla, so that the error can be rectified. Thus, it is ordered that all the five cases, referred in the reference (also referred in Para 5 of this Order), pending in the Court of Special Judge (NDPS), Mandla are transferred to the Court of chief Judicial Magistrate, Mandla (authorised to try these cases as per distribution memo Annexure D) to dispose of these cases afresh in accordance with law. ( 22. ) LAST but not the least, I am thankful to Shri S. C. Datt, learned senior Counsel for his valuable assistance rendered to this Court. The reference is disposed of accordingly.