MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.127 of 1991 In the matter of an Appeal under Section 36-B of the Narcotics Drugs and Psychotropic Substances Act, 1985 and from the judgment of conviction and order of sentence dated 10th April, 1991 passed by the learned Assistant Sessions Judge, Jeypore in Sessions Case No.6 of 1991 (S.C. No.231/90 on the file of the learned Sessions Judge, Jeypore). Balimiki Rout ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.D.P. Das, (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 05.03.2024 : Date of Judgment : 22.03.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 10th April, 1991 passed by the learned Assistant Sessions Judge, Jeypore in Sessions Case No.6 of 1991 (S.C. No.231/90 on the file of the learned Sessions Judge, Jeypore) arising out of II(a) CC CRA No.127 of 1991 Page 1 of 13 {{ 2 }} No.472 of 1990 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jeypore. The Appellant (accused) thereunder has been convicted for committing the offence under section 20(b)(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for two (2) years and pay fine of Rs.5000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. FACTS:- On 21.11.1990, the accused was apprehended by the staff of Excise Department and search, being made in presence of an independent witness, six (6) kgs of ganja was detected from the air-bag, which the accused was then carrying. The Excise Officials, having observed all such formalities, collected samples of 50 grams each from out of the seized ganja and kept those in two tin containers, which were wrapped in paper and then sealed and signed. Signature of the accused as well as witness were taken. The residue, being placed in the air-bag, was also seized whereon the signature of the accused and witness were as also obtained. The accused then, being arrested, was forwarded to the Court along with the seized ganja. Taking orders of the Court, the CRA No.127 of 1991 Page 2 of 13 {{ 3 }} samples were sent for chemical analysis, which on analysis was
Legal Reasoning
confirmed as such. On completion of the investigation, prosecution report was submitted on 30.11.1990. 3. The accused was finally committed to the Court of Sessions at Jeypore for trial for commission of the offence under section 20 (b)(i) of the N.D.P.S. Act. The learned Sessions Judge, Jeypore then transferred the said case to the Court of Assistant Sessions Judge, Jeypore for disposal of the same in accordance with law. The learned Assistant Sessions Judge, Jeypore, receiving the case record, framed the charge against the accused for commission of the offence under section 20(b)(i) of the N.D.P.S. Act and on completion of the Trial, found him guilty for the said offence and he was accordingly, convicted for the said offence and sentenced as afore-stated. At this stage, it be stated that the case against the Appellant was under the NDPS Act, as it was prior to the coming in to force of the NDPS (Amendment) Act, 2001, which became effective on and from 02.10.2001 and the trial was concluded before the said amended provisions formed part of the statute. 4. The Appeal came to be heard by the learned Single Judge of this Court and during such hearing, it was raised that the Trial, having been conducted by the learned Assistant Sessions Judge, is void ab nitio and solely on that ground, the accused is entitled Page 3 of 13 CRA No.127 of 1991 {{ 4 }} for an order of acquittal. It was stated that the learned Assistant Sessions Judge had no jurisdiction to try the case involving said offence under NDPS Act, the trial stood vitiated and the judgment of conviction and order of sentence thus cannot be sustained. 4-A. In support of such contention, reliance was placed on two decisions of this Court in cases of Sudha Samana & after him Silovamma & Others -V- State of Orissa; (1994) 7 OCR 117 and Adikanda Nayak -V- State of Orissa; (1995) 8 OCR 449. 5. Learned Single Judge, while addressing the contention, referred to the provisions contained in section 36-D of the N.D.P.S. Act and on going through the Full Bench decision of this Court in case of Banka Das -V- State of Orissa; (1992) 5 OCR 555, came to the conclusion that until a Special Court is constituted under section 36-D of the N.D.P.S. Act, the Court of Session will exercise the power of a Special Court without there being any necessity of a committal proceeding. The decisions in the case of Sudha Samana (Supra) as well as Adikanda Nayak (Supra) were discussed at length. In paragraph-4 of the judgment in case of Sudha Samana (Supra), the following was the observation:- “...... When the Full Bench held that until the Special Court is not constituted, the trial shall be held by Court of Session acting as the Special Court, what was CRA No.127 of 1991 Page 4 of 13 {{ 5 }} obviously meant that the trial is to be held either by a Sessions Judge or an Additional Sessions Judge…. (Emphasis Supplied)” In the case of Adikanta Nayak (Supra), the observation was as under:- “…. Section 36-D, which is a transitory provision empowers the Court of Session to try any offence under the Act until Special Court is constituted under section 36. The Act provides punishment of 20 years’ imprisonment and for certain offence, death penalty under section 31-A. In view of this, trial can only be held by the Sessions Judge or Additional Sessions Judge, but in no circumstance by an Assistant Sessions Judge…….” (Emphasis Supplied)” 6. The learned Single Judge, reverting to the judgment of the Full Bench decision of this Court in the case of Banka Das (Supra), found the Placitum-E (Per Majority) that “before a Special judge appointed, Sessions Judge can exercise all powers of Special judge ……….” to be misleading as that had not been held in the said judgment. The learned Single Judge emphasized on the distinction between the trial by a Sessions Judge and that by a Sessions Court. Regard being had to Section-9, 26 & 28 of the Code of Criminal Procedure, 1973 (in short, ‘the Code’), the learned Single Judge came to conclude that a reading of section 9 along with 28 CRA No.127 of 1991 Page 5 of 13 {{ 6 }} of the Code would show that an Assistant Sessions Judge also exercises the jurisdiction as a Court of Session except that his sentencing power is limited and that he cannot pass a sentence of death or imprisonment for life or imprisonment exceeding ten years. In this connection, reference was made to the case of Gokaraju Rangaraju -V- State of Andhra Pradesh; AIR 1981 SC 1473, which reads as under:- “17….. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Sessions. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared is invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of is under challenge……..” the Court itself 7. The learned Single Judge, further referring to the provisions of section 15 to 40 of the NDPS Act relating to the offences and penalties and also section 31-A came to a conclusion that the offence under section 20(b)(i) is punishable with imprisonment for a term, which may extend to five years and fine, which may extend to Rs.50,000/- (Rupees Fifty Thousand); section 25-A punishable for imprisonment for a term, which may extend to ten years and fine, which may extend to Rs.1,00,000/- (Rupees One CRA No.127 of 1991 Page 6 of 13 {{ 7 }} Lakh); section 26 punishable with imprisonment for a period, which may extend to three years or fine or both; section 27(a) punishable with imprisonment for a period, which may extend to one year or with fine or both and section 27(b) punishable with imprisonment for a period, which may extend to six months or with fine or both. It was thus held that there are some provisions for which the punishment prescribed is imprisonment not exceeding ten years, which were well within the competence and jurisdiction of the Assistant Sessions Judge to impose, in the light of the provisions contained in section 28 of the Code. 8. Learned Single Judge, then referring to the provision contained in section 194 of the Code and taking note of all such provisions that an Additional Sessions Judge and Assistant Sessions Judge can also exercise the power of Court of Session when found that the Assistant Sessions Judge is otherwise competent to impose the sentence, which can be passed under section 20(b)(i) of the N.D.P.S. Act, came to conclude that the trial held by the Assistant Sessions Judge, in the present case, was proper and cannot be called in question on that ground. Having said so, the learned Single Judge expressed a different view than that of the proposition of law laid down in cases of Sudha Samana (Supra) & Adikanda Nayak (Supra) CRA No.127 of 1991 Page 7 of 13 {{ 8 }} wherein it was held that the Trial under the N.D.P.S. Act can only be held by Sessions Judge or Additional Sessions Judge, but under no circumstance by an Assistant Sessions Judge. So, the learned Single Judge expressed that the matter needs reconsideration by a larger Bench. Thus, the matter has come before us.
Legal Reasoning
9. We have heard Mr.D.P. Das, learned counsel for the Appellant and Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State at length. 10. In order to address the submissions and answer the point raised by the learned Single Judge and the view that has been expressed, it be first stated that when the trial of the present case commenced and even till it was concluded, there was no constitution of Special Courts. 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. CRA No.127 of 1991 Page 8 of 13 {{ 9 }} this Act on or after
Decision
(2) Where any proceedings in relation to any offence the committed under commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989) are pending then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session: a Court Session, before of 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).” 11. 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. 12. The question now arises before us 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 our attention to the provision contained in Section 36 of the N.D.P.S. Act, we find that the same reads as under:- Page 9 of 13 CRA No.127 of 1991 {{ 10 }} “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 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 we refer 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 CRA No.127 of 1991 Page 10 of 13 {{ 11 }} under the N.D.P.S. Act be tried by a Court of Session, we 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 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’’. The view taken by the learned Single Judge, in our considered opinion, not only runs contrary to the legislative intent behind the trial of the offences under the N.D.P.S. Act as CRA No.127 of 1991 Page 11 of 13 {{ 12 }} under the transitional provision but also militates against the provision contained in section 36 of the Act. 13. In such view of the matter, we are 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. We, 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. 14. For the said reasons, according to us, the judgment of conviction and order of sentence challenged in this Appeal, cannot be sustained. Since we, in the given case, find that the offence, being said to have been committed on 20.11.1990, the trial stood concluded on 10.04.1991 and as by now, there has been lapse of 33 years 3 months and odd days, according to us, it would not subserve the interest of justice, after this distance of time to pass an order for retrial. CRA No.127 of 1991 Page 12 of 13 {{ 13 }} 15. In the result, the Appeal stands allowed. The trial held against the accused, thus being found to have been vitiated, the accused is acquitted of the charge and the bail bonds furnished by him shall stand discharged. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 22-Mar-2024 17:00:52 CRA No.127 of 1991 Page 13 of 13