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2024 DIGILAW 1140 (GUJ)

Mahebubbhai Osmanbhai Theba v. State Of Gujarat

2024-05-06

A.S.SUPEHIA, VIMAL K.VYAS

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. RULE. Learned APP waives service of notice for and on behalf of the Respondent-State of Gujarat. 2. Pursuant to the order dated 23.04.2024, the necessary report has been placed by the Registry on record with the relevant documents. The same are ordered to be taken on record. Additional documents were also called for by us. We have also perused the same. 3. As recorded in the order dated 23.04.2024, the appellant/applicant – original accused has raised an interesting issue questioning the jurisdiction of the trial Court, which has convicted the appellant-applicant for the offence punishable under the provisions of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, “the NDPS Act”). The learned trial Judge i.e. the 9th Additional District Judge at Rajkot has conducted the trial and thereafter, convicted the appellant - applicant for the afore-noted offence. 4. Learned advocate Mr.Virat Popat, has submitted that the Court of the learned trial Judge, which has conducted the trial and has passed the judgment, is not designated as Special Court under the provisions of Section 36A of the NDPS Act and hence, he had no the jurisdiction to try the offence, which invites more than three years of punishment. Thus, it is urged that the entire trial shall be declared as null and void and it is further urged that the matter may be remanded back for re-trial. 5. In view of such submissions made by the applicant - accused, we have inquired about the true aspects relating to the designation of the Special Court at Rajkot. 6. It is noticed by us from the report as well as documents that by the Notification dated 28.12.2015, the State Government, Legal Department, while exercising the powers conferred under Sub-Section (2) of Section 36 of the NDPS Act, 1985, the learned Judges as mentioned in such notification are appointed as Special Court. The same is incorporated as under : - SCHEDULE Sr. No. Place of Special Court Judge of Special Court (1) (2) (3) 1 District Court, Ahmdabad (Rural), Ahmedabad Second Senior Additional District Judge appointed at the Headquarter 2 Vadodara Second Senior Additional District Judge appointed at the Headquarter 3 Rajkot Second Senior Additional District Judge appointed at the Headquarter 7. The same is incorporated as under : - SCHEDULE Sr. No. Place of Special Court Judge of Special Court (1) (2) (3) 1 District Court, Ahmdabad (Rural), Ahmedabad Second Senior Additional District Judge appointed at the Headquarter 2 Vadodara Second Senior Additional District Judge appointed at the Headquarter 3 Rajkot Second Senior Additional District Judge appointed at the Headquarter 7. Thus, from the aforesaid notification, it is evident that Second Senior Additional District Judge appointed at the Headquarter (at Rajkot) was designated as a Special Court. 8. Vide Notification dated 28.08.2023, the learned Principal District Judge, Rajkot designated Mr. J. I. Patel, 9th Additional District Judge, Rajkot to try the case under the NDPS Act for District Rajkot with effect from 30.08.2023. 9. From the documents which are placed on record, we find that Mr.J. I. Patel, 9th Additional District Judge, Rajkot was not the 2nd Senior Additional District Judge appointed at the Headquarter, as required under the Notification dated 28.12.2015, but it was Mr.S. V. Sharma as on 01.12.2023, whereas Mr. J. I. Patel, was junior to Mr. S. V. Sharma. Thereafter, vide Notification No.B./1761/2023, order dated 03.10.2023, the learned Principal District Judge, Rajkot appointed Mr. B. B. Jadhav, who is posted at 9th Additional District Judge and Additional Sessions Judge as Special Court to try the case under the commission for Protection Child Right Act, 2005 for Rajkot District with effect from 03.10.2023. 10. The present trial has been conducted by the learned Presiding Officer Mr. B. B. Jadhav, and the judgment has been delivered on 08.02.2024, while delivering the said judgment, learned Presiding Officer has addressed himself as a Special Judge, NDPS and 9th Additional Sessions Judge, Rajkot. 11. On an inquiry done by us, it has been noticed that the Presiding Officer Mr.B. B. Jadhav is not the 2nd Senior Additional District Judge appointed at the Headquarter (at Rajkot), but instead Presiding Officer is Mr. D. S. Singh, the learned 4th Additional District Judge, who is the Second Senior Additional District Judge appointed at the Headquarter at Rajkot. Thus, it appears that the designation of the court of Mr.J. I. Patel as a special court vide Notification dated 28.08.2023 and also subsequently Mr. D. S. Singh, the learned 4th Additional District Judge, who is the Second Senior Additional District Judge appointed at the Headquarter at Rajkot. Thus, it appears that the designation of the court of Mr.J. I. Patel as a special court vide Notification dated 28.08.2023 and also subsequently Mr. B. B. Jadhav, the learned 9th Additional District Judge, who has conducted trial and delivered the judgment, were in fact not in conformity with the Notification dated 28.12.2015, since both were not the 2nd Senior Additional District Judge appointed at the Headquarter (at Rajkot). 12. We have also noticed that similar is the arraignment for other districts and the matters under the NDPS Act, which invite the sentences of more than three years have been dealt with by the learned Additional District and Sessions Judges. 13. The State Government vide similar Notifications has constituted a Special Court in four major cities of Rajkot, Ahmedabad, Surat and Vadodara to oversee the trial proceedings under the NDPS Act as per the provisions of Section 36 of the NDPS Act. However, it is brought to our notice that even after the Special Courts are formed and designated, the matters are further distributed amongst the Additional District and Sessions Judges to conduct the trial proceedings under the NDPS Act. 14. Apart from conducting the trial under the NDPS Act, the learned Sessions Judges are being allotted other matters also in order to reduce the burden and the matters are equally distributed amongst the learned District and Sessions Judges, pursuant to the Administrative instructions issued by the High Court. One of such Circular has been placed before us which is issued by the High Court on 09.09.2022 directing all the Principal District Judges and Principal Officers to equally distributed the work amongst the Judicial Officers that is being followed with further instructions issued by the Registrar General on 26.09.2018. 15. The issue raised before us by the applicant has the genesis in the judgment of the Supreme Court in the case of Supreme Court Legal Aid Committee representing this under-trial prisoners Vs. Union of India and others reported in (1994) 6 SCC 731 , wherein the Supreme Court after examination of the provisions of Sections 36, 36-A to 36-D of the NDPS Act and the Constitution of Special Courts has held thus :- “11. Union of India and others reported in (1994) 6 SCC 731 , wherein the Supreme Court after examination of the provisions of Sections 36, 36-A to 36-D of the NDPS Act and the Constitution of Special Courts has held thus :- “11. Section 36 provides for the Constitution of Special Courts and Section 36A(l)(a) says that notwithstanding anything contained in the Code, all offences under the 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. On a conjoint reading of these two provisions it becomes clear beyond my manner of doubt that once a Special Court (or more than one) has been constituted for an area or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other Courts exercising jurisdiction prior to the Constitution of the Special Courts will cease to have jurisdiction. Sub-section 36A(1)(a) and (d) which also begin with a non-obstante clause - notwithstanding anything contained in the Code - provide that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the concerned Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to Section 190 of the Code. It is dear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. That brings us to Section 36D which is a transitional provision. Under Sub-section (1) of Section 36D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. That brings us to Section 36D which is a transitional provision. Under Sub-section (1) of Section 36D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence committed on or after the commencement of the Amending Act and no other Court including the Magistrate's Court will have jurisdiction to try an offence under the Act. Sub-section (2) of Section 36D further provides that nothing in Sub-section (1) shall be construed to require the transfer to a Special Court of any proceeding in relation to an offence taken cognizance of by the Court of Session under Sub-section (1) and the same shall be continued, heard and decided by the latter Court. As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29th May, 1989, the offences under the Act were triable by different Courts under the Code depending on the punishments provided therefore. But after the introduction of this group of sections in the Act, the legislature, with a view to speeding up the trial provided for the Constitution of a Special Court and until such Court was constituted it provided by Sub-section (1) of Section 36B that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrate's Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone and, therefore, the Courts of the Magistrate, 1st Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. Sub-section (1) of Section 36A overrides the provisions of the Code. Sub-section (1) of Section 36A overrides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since any the Court of Session is empowered to deal with such cases. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the non-obstante clause in Section 36D(l)(a), all offences under the Act become triable only by the Court of Session till the Constitution of Special Courts and thereafter by the Special Court. Ordinarily, therefore, cases pending before the Court of Session by virtue of Section 36D(1) would be transferred to the Special Court, but Sub-section (2) of Section 36D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under Sub-section (1) of Section 36D that Court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by Sub-section (2) of Section 36D. On a conjoint reading of Sections 36, 36A to 36D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under Section 36. That is the thrust of Clause (a) of Sub-section (1) of Section 36A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29th May, 1989 and the Constitution of a Special Court. This period which is a transitional period is taken care of by Section 36D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance. It is not necessary to elaborate on when cognizance is understood to have been taken because that is fairly well- settled by a catena of decisions of this Court, vide decisions based on an interpretation of Section 190 of the Code. Also see para 7 of Kishan Singh v. State of Bihar . 12. This takes us to the next question : when can a Special Court be said to have been constituted? The plain language of Section 36 says that the Governmental may, by notification in the Official Gazette, constitute as many Special Courts us may be necessary for such areas as may be specified in the notification. Therefore, the mode of Constitution of Special Courts is by issuance of a notification in the Official Gazette specifying the area for which each Special Court is constituted. Sub-section (2) of Section 36 states that the Special Court will be a single Judge Court. Sub-section (3) next provides that a person who has immediately before such appointment functioned as a Sessions Judge or an Additional Sessions Judge shall be eligible to be appointed as a Judge of the Special Court. Section 36, therefore, has two stages, namely, the first stage in regard to the Constitution of Special Courts is by issuance of a notification in the Official Gazette and then comes the appointment of the individual to function as a Judge of the Special Court. Therefore, as soon as the notification is issued under Sub-section (1) of Section 36 the process of Constitution of a Special Court commences and it is only thereafter that the Government can seek the concurrence of the Chief Justice of the High Court for the appointment of a Judge of that Court. As stated earlier, only a person who has worked as a Sessions Judge or Additional Sessions Judge immediately before such appointment is qualified to be a Judge of the Special Court. This is the plain language of Section 36.” 16. As stated earlier, only a person who has worked as a Sessions Judge or Additional Sessions Judge immediately before such appointment is qualified to be a Judge of the Special Court. This is the plain language of Section 36.” 16. From the afore-quoted observations of the Supreme Court, it is comprehensible that until Special Courts in terms of Section 36 of the NDPS Act are constituted, a Court of Session will have jurisdiction not only to try the offences committed under the Act, but it will also have the jurisdiction to take cognizance of such offences without the necessity of going through the committal proceedings. It is held by the Supreme Court that ”On a conjoint reading of these two provisions it becomes clear beyond my manner of doubt that once a Special Court (or more than one) has been constituted for an area or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other Courts exercising jurisdiction prior to the Constitution of the Special Courts will cease to have jurisdiction.” Thus, after the constitution of the special court, no other courts prior to the Constitution of the Special Courts will cease to have jurisdiction to conduct the trial under NDPS Act. 17. We may also note the provisions contained in Section 36-C of the NDPS Act, which stipulates as below: "36C. Application of Code to proceedings before a Special Court.--Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 18. 18. We may also refer to the provision of section 36D of the NDPS Act: “SECTION 36D : Transitional provisions (1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Sub-stances (Amendment) Act, 1988 (2 of 1989) which is tri-able by a Special Court shall, until a Special Court is constituted under Section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session: (2) Where any proceedings in relation to any offence com-mitted under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989) are pending before a Court of Ses-sion, 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 (2 of 1974) to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).” 19. The afore-noted provisions clarifies that only those provisions of the Code would apply to the proceedings relating to offences triable by Special Court which are in conformity with the provisions of the NDPS Act. It further provides that a Special Court shall be deemed to be a Court of Session. Section 36D of the NDPS Act deals with the matters during the transition period in case the special courts are not constituted. During the transitional period when a Court of Session fills in the void created by non-constitution of Special Courts, it has to follow the same procedure as prescribed by the provisions contained in NDPS Act read with those provisions of the Cr. P. C, which are not in-consistent with the NDPS Act. The provisions of NDPS Act confers jurisdiction to the Court competent to try the offences under the said Act i.e. Special Court to take cognizance of offence as an original court [Section 36A(1)(d)] and to exercise powers of a Magistrate under Section 167 of Cr. P. C [Section 36A(1)(c)]. P. C, which are not in-consistent with the NDPS Act. The provisions of NDPS Act confers jurisdiction to the Court competent to try the offences under the said Act i.e. Special Court to take cognizance of offence as an original court [Section 36A(1)(d)] and to exercise powers of a Magistrate under Section 167 of Cr. P. C [Section 36A(1)(c)]. The non-obstante clause appearing at the fag end of sub-section (2) of Section 36D of the Act envisages that the Sessions Court, while exercising the jurisdiction of a competent court in the absence of a Special Court would also exercise the same powers and follow the same procedure as a Special Court constituted under the NDPS Act. 20. The appellant/applicant has insisted that the trial proceedings may be held as without jurisdiction and hence, his sentence may be suspended since the learned trial judge, who has conducted the trial has not been designated as a Special Court as per the Notification dated 28.12.2015 issued by the State Government. It is urged that in light of the judgment of the Supreme Court, as noted hereinabove, such trial can be held to be void ab initio. What has been placed before us, and the data reveals that the offences punishable under the NDPS Act which invite sentence of more than three years, such trial proceedings are further transferred and allotted to the Additional District Sessions Judges and the same are conducted. 21. In four major cities, as mentioned hereinabove, the State Government has passed the Notifications of constitution of the Special Courts and thereafter, the learned Additional Sessions Judges are also designated as Special Court to conduct the trial under the NDPS Act, however, due to the work distribution and heavy burden, such matters are further transferred to the respective learned Additional Sessions Judges, though they are not designated as a Special Courts. 22. The grave issue which raises concern is that if the concerned learned Additional Sessions Judges, who are in process of conducting the trial proceedings and also have concluded like the present case, in case of such proceedings, the trial Court is declared as not having been conferred such jurisdiction, the same would have very wide ramification and amplification on large the number of cases and judgments in which the trial under the NDPS Act have been concluded. 23. 23. We, at this stage, would like to incorporate the observations of the Supreme Court in the case of State of M.P. Vs. Bhooraji and others reported in (2001) 7 SCC 679 . The Supreme Court, while examining the doctrine of a failure of justice and in case of ordering de novo trial has observed thus : - “8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert a failure of justice. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting a failure of justice. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. 12. Section 465 of the Code falls within Chapter XXXV under the caption Irregular Proceedings. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. 12. Section 465 of the Code falls within Chapter XXXV under the caption Irregular Proceedings. The chapter consists of seven sections starting with Section 460 containing a catalogue of irregularities which the legislature thought not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that among the former catalogue contains the instance of a magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith. The provision says that the proceedings adopted in such a case, though based on such erroneous order, “shall not be set aside merely on the ground of his not being so empowered”. 13. It is useful to refer to Section 462 of the Code which says that even proceedings conducted in a wrong sessions division are not liable to be set at naught merely on that ground. However an exception is provided in that section that if the court is satisfied that proceedings conducted erroneously in a wrong sessions division has in fact occasioned a failure of justice it is open to the higher court to interfere. While it is provided that all the instances enumerated in Section 461 would render the proceedings void, no other proceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous. The court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned failure of justice. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned failure of justice. 14. We have to examine Section 465(1) of the Code in the above context. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned failure of justice. 14. We have to examine Section 465(1) of the Code in the above context. It is extracted below: “465 (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.” 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity. 16. What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Karnataka {SCC p.585, para 23} thus: “23. We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.” 17. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.” 17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified sessions court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the special court because that court being essentially a court of sessions can take cognizance of any offence only then. But if a specified sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course? 21. The expression a court of competent jurisdiction envisaged in Section 465 is to denote a validly constituted court conferred with jurisdiction to try the offence of offences. Such a court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance of the procedural requirement. The inability to take cognizance of an offence without a committal order does not mean that a duly constituted court became an incompetent court for all purposes. If objection was raised in that court at the earliest occasion on the ground that the case should have been committed by a magistrate, the same specified court has to exercise a jurisdiction either for sending the records to a magistrate for adopting committal proceedings or return the police report to the Public Prosecutor or the police for presentation before the magistrate. Even this could be done only because the court has competence to deal with the case. Sometimes that court may have to hear arguments to decide that preliminary issue. Hence the argument advanced by the learned counsel on the strength of the aforesaid decisions is of no avail. 24. Even this could be done only because the court has competence to deal with the case. Sometimes that court may have to hear arguments to decide that preliminary issue. Hence the argument advanced by the learned counsel on the strength of the aforesaid decisions is of no avail. 24. Albeit, the issue before the Supreme Court was with regard to the irregularities committed in the criminal proceedings relating to procedural irregularities or illegalities adopted by the trial Court in taking cognizance of the certain offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, read with Section 302 and Section 149 of the IPC, which also deals with the creation of special courts; we are inclined to adopt the analogy expressed by the Supreme Court . In the case before the Supreme Court because of non-committal of proceedings by the Magistrate, re-trial was ordered by the High Court, the Supreme Court has held that a de novo trial should be a last resort and that too only when such a course becomes so desperately indispensable. It is held that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial and such a course can be resorted to when it becomes unpreventable for the purpose of averting a “failure of justice”. It is cautioned by the Supreme Court that the Supreme Court which orders a de novo trial, cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts, which are crammed with dockets, and how much that order would inflict hardship on many innocent persons, who once took all the troubles to reach the court and deposed their versions in the very same case and to them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. It is held that law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. It is held that law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. While examining the provisions of Section 465 of the Code, which falls within Chapter XXXV under the captioned irregular proceedings, which consist seven sections containing the catalogue of irregularities, the Supreme Court has held that while resorting to the provisions of Section 462 of the Cr.P.C. it is held that even proceedings conducted in wrong sessions division are not liable to be set at naught merely on that ground. However, an exception is provided in that section that if the court is satisfied that proceedings conducted erroneously in a wrong sessions division “has in fact occasioned a failure of justice”, it is open to the higher court to interfere. It is also provided that all the instances enumerated in Section 461 of the Cr.P.C., would render the proceedings void, no other proceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous and the Court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned ‘failure of justice’. 25. In the present case, the lapse of conducting the trial proceedings by the learned 2nd Senior Additional Sessions Judge, whose is not designated as a special court, will not wipe out the trial proceedings right from its inception. At this stage, we may also derive succor from the provisions of Section 36D of the NDPS Act, which is a transitional provision. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence committed on or after the commencement of the Amending NDPS Act and no other Court including the Magistrate’s Court will have jurisdiction to try an offence under the Act. We have noticed that apart from four cities, as mentioned hereinabove, where no special courts are designated and no notification is issued, the learned Additional District Sessions Judges are conducting trial proceedings relating to NDPS Act. 26. We have noticed that apart from four cities, as mentioned hereinabove, where no special courts are designated and no notification is issued, the learned Additional District Sessions Judges are conducting trial proceedings relating to NDPS Act. 26. Albeit, there is a lapse on behalf of the administration of the learned Senior Principal District Judges in allotting and transferring such matters to the Additional District Sessions Judges, despite there being Special Courts constituted, such a defect cannot inherently wipe out the entire proceedings and it cannot be said that the trial Courts lack ‘inherent jurisdiction’ in conducting such proceedings. As observed by the Supreme Court the impact of setting aside the trial proceedings and ordering de novo trial will have wide ranging ramification on the entire State of Gujarat on the trial proceedings under the NDPS Act, which invite more than three years sentence. It cannot be said that the trial Court was lacking inherent lack of jurisdiction, which would mean a power of jurisdiction which does not at all exist or vest in the Court and that when a subject matter is wholly foreign to its ambit and is totally unconnected with its recognized jurisdiction. 27. It is contended that since the raiding officer was a Gazetted Officer, as per the decision of the Supreme Court in the case of Union of India Vs. Satrohan, reported in (2008) 8 SCC 313 , the compliance of the provisions of Section 42 is not necessary. Further, reliance is placed on the judgment of the Supreme Court in the case of Natha Singh and Others Vs. State of Haryana reported in (2019) 14 SCC 582 . 28. Learned Additional Public Prosecutor shall supply true translation of FSL Report at Exh.82 by the next date of hearing. 29. By the next date of hearing, learned Additional Public Prosecutor shall also produce the Confidential Letter No.7/2018 dated 09.09.2018 written by the raiding officer (PW-3) – Sukhwindersingh Nirbhaysingh Gaddu. 30. Keeping in mind such vital aspects, we are not inclined to hold and declare that the trial and the judgment and order of conviction and sentence as directed by the learned 9th Additional Sessions Judge, as void ab initio. 31. The learned Public Prosecutor Mr.Mitesh Amin is also apprised about the need to constitute more Special Courts. He has assured us that needful will be done. 32. The matter is ordered to be kept on 27.06.2024.