Md. Israil vs State Of Orissa
2024 Latest Caselaw 10881 Ori

Orissa High Court

Md. Israil vs State Of Orissa on 1 July, 2024

Author: D.Dash

Bench: D.Dash

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   CRA NO.62 OF 1992

          In the matter of an Appeal under section-36 of the Narcotic
          Drugs and Psychotropic Substances Act, 1985 (for short 'the
          NDPS Act') and under section-374(2) of the Code of Criminal
          Procedure, 1973 and from the judgment and order of sentence
          dated 18th December, 1991 passed by the learned Additional
          Chief-Judicial       Magistrate-cum-Assistant      Sessions   Judge,
          Rourkela in Sessions Trial No.20/12 of 1991.
                                         ----

              Md. Israil                             ....           Appellant
                                          -versus-

              State of Orissa                        ....         Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode:

================================================== For Appellant - Mr. B. Routray & S.K. Nayak, Advocates.

                      For Respondent -          Mr. P.K. Mohanty,
                                                Additional Standing Counsel.
                                            CORAM:
                                    MR. JUSTICE D.DASH

DATE OF HEARING :20.06.2024 : DATE OF JUDGMENT:01.07.2024

D.Dash,J. The Appellant by filing this Appeal has assailed the judgment of

conviction and order of sentence dated 18th December 1991

passed by the learned Additional Chief-Judicial Magistrate-cum-

Assistant Sessions Judge, Rourkela in Sessions Trial No.20/12 of

1991 in 2(a)C.C. Case No.961 of 1988 arising from the

Prosecution Report No.13 of 1988-89 submitted by the Inspector,

EIB, Rourkela.

The Trial Court having examined the evidence of the

prosecution witnesses, P.W. 1 to P.W.4 has held the accused

guilty for commission of offence under section-20(b)(i) of the

Narcotic Drugs & Psychotropic Substance Act, 1985 (for short

called as 'the NDPS Act') and accordingly he has been sentenced

to undergo rigorous imprisonment for a term of four (4) years

and pay fine of Rs.10,000/- in default to undergo rigorous

imprisonment for one year.

2. Prosecution case is that on 13th July 1988, around 7 pm, the

Inspector of Excise (P.W.4) with the Assistant Sub-Inspector of

Excise (P.W.3) and Excise Constable had gone to Rourkela

Railway Station. Around 8 pm, P.W.4 found the accused

crossing through main road, carrying a Tin box in his hand.

P.W.3 then suspecting the accused to be carrying some

contraband in the said Tin box, detained him. After observing

formalities regarding search, when the Tin box carried by the

accused was searched, it was found to be containing ganja

weighing 5kg. 500 grams, which he confirmed by burning small

quantity, out of the same and on account of his Departmental

Experience. Seizure of the contraband and other articles having

taken place, finally prosecution report was submitted and

CRA NO. 62 OF 1992 accused faced the trial which has resulted in his conviction,

followed by imposition of sentence as aforestated.

3. Learned Counsel for the Appellant at the outset relying

upon the judgment passed by the Division Bench of this Court

on dated 22.03.2024 in CRA No.127 of 1991 in case of "Balimiki

Rout Vrs. State of Orissa" submitted that the trial for commission

of offence under the NDPS Act as has been held by the Assistant

Sessions Judge stands vitiated as he had no jurisdiction to try the

offence under the said Act. He, therefore, submitted that the

judgment of conviction and order of sentence cannot be

sustained.

4. Learned Counsel for the State submitted that since the

Additional Chief-Judicial Magistrate-cum-Assistant Sessions

Judge as per section-194 of the Code of Criminal Procedure does

also exercise the power of Court of Sessions and here as the

Assistant Sessions Judge is otherwise competent to impose the

sentence which can be passed under section-20(b)(i) of the

NDPS Act, the trial held by the Additional Chief-Judicial

Magistrate-cum-Assistant Sessions Judge cannot be said to be

without jurisdiction and thus would not stand vitiated.

5. Keeping in view the submissions made; I have carefully

read the judgment passed by the Trial Court. The accused

standing charged for the offence under section-20(b)(i) of the

NDPS Act for being in possession of 5Kgs. 500 grams of ganja

faced the trial in the Court of learned Additional Chief-Judicial

CRA NO. 62 OF 1992 Magistrate-cum-Assistant Sessions Judge. It be stated that when

the trial of the present case commenced, even till it was

concluded, there was no constitution of Special Court. So, those

trials were conducted as per the transitional provisions

contained in section 36-D of the N.D.P.S. Act, which reads as

under:-

"36D. Transitional provisions.

(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), which is 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 (2 of 1974), 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 (2 of 1989) 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 (2 of 1974) to transfer any case or class of cases taken

CRA NO. 62 OF 1992 cognizance by a Court of Session under sub-section (1)."

6. Reading the relevant provisions of the Code, as quoted in

the judgment passed by the learned Single Judge, we are in

respectful agreement with the view taken therein that an

Additional Sessions Judge and Assistant Sessions Judge can also

exercise the power of Court of Session. We are also at one with

the view taken by the learned Single Judge that the Assistant

Sessions Judge is authorized to award the sentence, which can

be imposed for commission of the offence under section 20(b)(i)

of the N.D.P.S. Act as in the present case.

7. The question now arises is whether the Assistant Sessions

Judge, in terms of the provisions contained in section 36-D of the

N.D.P.S. Act could have tried the case.

Turning attention to the provision contained in Section

36 of the N.D.P.S. Act, we find that the same reads as under: -

"36. Constitution of Special Courts: -

(1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. (2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.

Explanation: In this sub-section, "High Court" means the High Court of the State in which the Sessions Judge

CRA NO. 62 OF 1992 or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge."

The above provision especially as in sub-section (3) thereof

makes it abundantly clear that a person shall not be qualified for

being appointed as a Judge of a Special Court unless he is

immediately before such appointment, a Sessions Judge or an

Additional Sessions Judge.

Therefore, when reference is made to sub-section 1 of

section 36-D of the Act, which ends with an non-obstante

clause that notwithstanding contained anything in the Code,

until a Special Court is constituted under Section-36, any

offence committed under the N.D.P.S. Act be tried by a Court of

Session, one cannot overlook sub-section 3 of Section-36 of the

Act, which has to be given due regard to wherein it is

prescribed that a Judge of the Special Court immediately

before such appointment, either a Sessions Judge or an

Additional Sessions Judge.

The legislative intent thus is clear that the Court of Session

as indicated in Section 36-D of the N.D.P.S. Act would mean the

Court of Session presided over by a Sessions Judge or an

Additional Sessions Judge not by an Assistant Sessions Judge. It

CRA NO. 62 OF 1992 being specifically prescribed in section 36 of the N.D.P.S. Act

that the persons to be a Judge of the Special Court, must have

immediately before such appointment, a Sessions Judge or an

Additional Sessions Judge, the intention of the legislature

can never be taken to be such that until the Special Court is

constituted under section 36, the offences under the N.D.P.S. Act

can, however, be tried by a Court of Session being also presided

over by the Assistant Sessions Judge.

The above interpretation is fortified by the insertion of the

non-obstante clause that "notwithstanding anything contained

in the Code" before the words "be tried by a Court of Session''.

Therefore, non-acceptance of the contention raised by the

learned Counsel for the Appellant would run contrary to the

underlined legislative intent behind the trial of offence under the

NDPS Act as under the transitional provision and not only that,

it would militate the provision of contained in section-36 of the

Act.

8. In such view of the matter, I am of the considered opinion

that even as per the transitional provisions contained in

Section 36-D of the N.D.P.S. Act, the trial for commission of

the offence under the N.D.P.S. Act even where the sentence

prescribed falls within the power and competence of an

Assistant Sessions Judge, as under the Code and

notwithstanding the same, an Assistant Sessions Judge cannot

try these offences under the N.D.P.S. Act.

CRA NO. 62 OF 1992 I, therefore, conclude that the present trial against the

accused for commission of the offence under section 20(b)(i) of

the N.D.P.S. Act held by the learned Assistant Sessions Judge

stands vitiated. The view of mine receives full backing from the

decision of the Division Bench in case of Balimiki Rout Vrs. State

of Orissa (supra).

9. For the said reasons, in my view, the judgment of

conviction and order of sentence challenged in this Appeal,

cannot be sustained. Since in the given case, it is found that the

offence, being said to have been committed on 13.07.1988, the

trial stood concluded on 18.12.1991 and as by now, there has

been lapse of 32 years 6 months and odd days, accordingly, in

my considered opinion; it would not serve the interest of justice,

after this distance of time to pass an order for retrial in meeting

its end.

10. In the result, the Appeal stands allowed. The judgment of

conviction and order of sentence dated 18th December 1991

passed by the learned Additional Chief-Judicial Magistrate-cum-

Assistant Sessions Judge, Rourkela in Sessions Trial No.20/12 of

1991 are hereby set aside.

(D. Dash), Judge.

Signature Narayan Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Jul-2024 18:55:32

CRA NO. 62 OF 1992