At the outset, it is required to be noted that the petitioner has been charge sheeted for the offences punishable under Section 20(a) of the NDPS Act on the allegation that the petitioner was in possession of the 987 gm contraband Ganja. It appears that and it is not in dispute that even if the case is proved against the petitioner, maximum punishment which can be imposed upon the petitioner would be not more than three years. It appears that original NDPS Act has been specifically amended by the Amendment Act No.9 of 2001 and Section 36(A) has been amended and / or brought on statute by the said amended Act which provides for trial for the offence under the NDPS Act by the Special Court, which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offences under the NDPS Act, which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constitute for the area in which the offence has been committed. Sub- section 36 A (5) of the Act also provides that notwithstanding anything contained in the Code of Criminal Procedure, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the intention of the legislature is very clear and only those offences under the NDPS Act, which are punishable for imprisonment for a term of more than three years only, shall be triable by the Special Court and all other offences punishable under the NDPS Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the offence against the petitioner is required to be tried by the learned Magistrate Court and not required to be tried by the learned Special Court. It appears that while dismissing the application Exh.19, the learned Additional Sessions Judge has relied upon Section 36 of the NDPS Act, however has not considered Section 36(A) in its true spirit. Under the circumstances, the learned Additional Sessions Judge has materially erred in rejecting the application of the petitioner to transfer the case from learned Sessions Judge to Court of learned JMFC, Gondal. "As such identical question came to be considered by the Allahabad High Court in the case of Rajesh Singh (Supra) and considering Section 36(A) of the NDPS Act as amended by the Amendment Act 9 of 2001, Allahabad High Court has directed the learned Sessions Court to transfer the case in which the allegation was with respect to possession of 1 kg of contraband Ganja having punishment of not more than three years, to the Court of learned JMFC/ Chief Judicial Magistrate for trial in accordance with the provisions of NDPS Act and Code of Criminal Procedure." In view of the above and for the reasons stated above, petition succeed and the impugned order passed by the learned Additional Sessions Judge, Gondal dated 6.7.2011 below application Exh. 19 in NDPS Sessions Case No.1 of 2010 is hereby quashed and set aside and the learned Additional Sessions Judge, Gondal is hereby directed to transfer the case of the petitioner to the Court of learned JMFC, Gondal for trial in accordance with the provisions of NDPS Act, Code of Criminal Procedure and in accordance with law and on merits. It is made clear that the case is ordered to be transferred to the Court of learned JMFC, Gondal as it has been found that the petitioner is charged for the offence under Section 20(a) of the NDPS Act and allegation against the petitioner is with respect to possession of 987 gm contraband Ganja and prima facie it has been found that maximum punishment which can be imposed upon the petitioner would not more than three years. Therefore, it is made clear that in case the learned Magistrate is of the opinion that the punishment / sentence which can be imposed upon the petitioner is of more than three years in that case he may transfer the case to the learned Special Court.
BATUK ALIAS BATUKBAPU CHAKUBHAI RADADIA PATEL Vs. STATE OF GUJARAT
High Court Of Gujarat
Decided on August 17,2011
- ( 1. ) PRESENT Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original accused to quash and set aside the impugned order dated 6.7.2011 passed by the learned Additional Sessions Judge, Gondal below application Exh. 19 in NDPS Sessions Case No.1 of 2010.
( 2. ) THAT the Criminal Case has been instituted against the petitioner for the offences punishable under Section 20(a) of the NDPS Act alleging inter alia that petitioner was in possession of the 987 gm. Ganja. THAT the petitioner came to be charge sheeted on 26.7.2011. THAT the said case was committed to the learned Sessions Court by the learned Magistrate, which has been numbered as NDPS Sessions Case No. 1 of 2010, pending in the Court of learned Additional Sessions Judge, Gondal. THAT as the maximum punishment/ sentence which can be imposed upon the petitioner would be less than three years, considering Section 36 A of the NDPS Act, the petitioner submitted the application Exh,19 before the learned Sessions Court in aforesaid NDPS Sessions Case No.1 of 2010 to transfer the said case to the Court of learned JMFC, Gondal and by the impugned order the learned Additional Sessions Judge, Gondal has dismissed the said application by holding that all the NDPS Cases are required to be tried only by the Special Court as per Section 36 of the NDPS Act. Being aggrieved and dissatisfied with the impugned order passed by the learned Additional Sessions Judge, Gondal in not transferring the case r to the Court of learned JMFC, Gondal, the petitioner accused has preferred the present Special Criminal Application under Article 227 of the Constitution of India.Shri Khandheria, learned advocate for the petitioner has vehemently submitted that the learned Judge has not considered the provisions of Section 36 A of the NDPS Act, which provides that only those offences under the NDPS Act, which are punishable with imprisonment for 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. It is submitted that even the learned Judge has not properly appreciated sub-section 36(A)(5) which specifically provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under the NDPS Act with imprisonment for a term of not more than three years may be tried summarily. It is submitted that therefore, when the offence is punishable under the NDPS Act with imprisonment for term of not more than three years, are to be tried summarily, intention of the legislature is to try the said offence summarily as provided under the Code of Criminal Procedure. It is submitted that therefore, considering the above and considering Section 260(i) of the Code of Criminal Procedure if the petitioner is allowed to be tried by the Sessions Court, the ultimate judgment would be vitiated on account of it having been passed by the Court, which otherwise inherently lacks the jurisdiction. "Shri Khandheria, learned advocate for the petitioner has heavily relied upon the decision of the Allahabad High Court in the case of Rajesh Sing v. State of U.Preported in, 2002-ACC-1-951, by submitting that in a similar set of facts and circumstances and relying upon Section 36(A) of the NDPS Act, the High Court has ordered that offence alleged against the accused for the offence which are available with imprisonment for a term of not more than three years are triable by the learned Magistrate. Therefore, it is requested to allow present application." Shri Dabhi, learned APP, for the State considering Section 36(A) of the NDPS Act and in the facts and circumstances of the case when the allegations against the petitioner-accused is in possession of 987 gm. Ganja and the punishment can be imposed upon the petitioner would be of less than three years, it is requested to pass an appropriate order.
( 3. ) HEARD the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner has been charge sheeted for the offences punishable under Section 20(a) of the NDPS Act on the allegation that the petitioner was in possession of the 987 gm contraband Ganja. It appears that and it is not in dispute that even if the case is proved against the petitioner, maximum punishment which can be imposed upon the petitioner would be not more than three years. It appears that original NDPS Act has been specifically amended by the Amendment Act No.9 of 2001 and Section 36(A) has been amended and / or brought on statute by the said amended Act which provides for trial for the offence under the NDPS Act by the Special Court, which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offences under the NDPS Act, which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constitute for the area in which the offence has been committed. Sub- section 36 A (5) of the Act also provides that notwithstanding anything contained in the Code of Criminal Procedure, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the intention of the legislature is very clear and only those offences under the NDPS Act, which are punishable for imprisonment for a term of more than three years only, shall be triable by the Special Court and all other offences punishable under the NDPS Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the offence against the petitioner is required to be tried by the learned Magistrate Court and not required to be tried by the learned Special Court. It appears that while dismissing the application Exh.19, the learned Additional Sessions Judge has relied upon Section 36 of the NDPS Act, however has not considered Section 36(A) in its true spirit. Under the circumstances, the learned Additional Sessions Judge has materially erred in rejecting the application of the petitioner to transfer the case from learned Sessions Judge to Court of learned JMFC, Gondal."As such identical question came to be considered by the Allahabad High Court in the case of Rajesh Singh (Supra) and considering Section 36(A) of the NDPS Act as amended by the Amendment Act 9 of 2001, Allahabad High Court has directed the learned Sessions Court to transfer the case in which the allegation was with respect to possession of 1 kg of contraband Ganja having punishment of not more than three years, to the Court of learned JMFC/ Chief Judicial Magistrate for trial in accordance with the provisions of NDPS Act and Code of Criminal Procedure." In view of the above and for the reasons stated above, petition succeed and the impugned order passed by the learned Additional Sessions Judge, Gondal dated 6.7.2011 below application Exh. 19 in NDPS Sessions Case No.1 of 2010 is hereby quashed and set aside and the learned Additional Sessions Judge, Gondal is hereby directed to transfer the case of the petitioner to the Court of learned JMFC, Gondal for trial in accordance with the provisions of NDPS Act, Code of Criminal Procedure and in accordance with law and on merits. It is made clear that the case is ordered to be transferred to the Court of learned JMFC, Gondal as it has been found that the petitioner is charged for the offence under Section 20(a) of the NDPS Act and allegation against the petitioner is with respect to possession of 987 gm contraband Ganja and prima facie it has been found that maximum punishment which can be imposed upon the petitioner would not more than three years. Therefore, it is made clear that in case the learned Magistrate is of the opinion that the punishment / sentence which can be imposed upon the petitioner is of more than three years in that case he may transfer the case to the learned Special Court. Rule is made absolute to the aforesaid extent. ;
( 2. ) THAT the Criminal Case has been instituted against the petitioner for the offences punishable under Section 20(a) of the NDPS Act alleging inter alia that petitioner was in possession of the 987 gm. Ganja. THAT the petitioner came to be charge sheeted on 26.7.2011. THAT the said case was committed to the learned Sessions Court by the learned Magistrate, which has been numbered as NDPS Sessions Case No. 1 of 2010, pending in the Court of learned Additional Sessions Judge, Gondal. THAT as the maximum punishment/ sentence which can be imposed upon the petitioner would be less than three years, considering Section 36 A of the NDPS Act, the petitioner submitted the application Exh,19 before the learned Sessions Court in aforesaid NDPS Sessions Case No.1 of 2010 to transfer the said case to the Court of learned JMFC, Gondal and by the impugned order the learned Additional Sessions Judge, Gondal has dismissed the said application by holding that all the NDPS Cases are required to be tried only by the Special Court as per Section 36 of the NDPS Act. Being aggrieved and dissatisfied with the impugned order passed by the learned Additional Sessions Judge, Gondal in not transferring the case r to the Court of learned JMFC, Gondal, the petitioner accused has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
( 3. ) HEARD the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner has been charge sheeted for the offences punishable under Section 20(a) of the NDPS Act on the allegation that the petitioner was in possession of the 987 gm contraband Ganja. It appears that and it is not in dispute that even if the case is proved against the petitioner, maximum punishment which can be imposed upon the petitioner would be not more than three years. It appears that original NDPS Act has been specifically amended by the Amendment Act No.9 of 2001 and Section 36(A) has been amended and / or brought on statute by the said amended Act which provides for trial for the offence under the NDPS Act by the Special Court, which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offences under the NDPS Act, which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constitute for the area in which the offence has been committed. Sub- section 36 A (5) of the Act also provides that notwithstanding anything contained in the Code of Criminal Procedure, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the intention of the legislature is very clear and only those offences under the NDPS Act, which are punishable for imprisonment for a term of more than three years only, shall be triable by the Special Court and all other offences punishable under the NDPS Act with imprisonment for a term of not more than three years may be tried summarily. Therefore, the offence against the petitioner is required to be tried by the learned Magistrate Court and not required to be tried by the learned Special Court. It appears that while dismissing the application Exh.19, the learned Additional Sessions Judge has relied upon Section 36 of the NDPS Act, however has not considered Section 36(A) in its true spirit. Under the circumstances, the learned Additional Sessions Judge has materially erred in rejecting the application of the petitioner to transfer the case from learned Sessions Judge to Court of learned JMFC, Gondal.
No comments:
Post a Comment