Allahabad High Court
Jamil Ahmad vs State Of U.P. And Anr. on 4 May, 2006
Equivalent citations: 2006CRILJ3337
Author: K.N. Sinha
Bench: K.N. Sinha
ORDER K.N. Sinha, J.
1. The present application under Section 407 Cr.P.C. has been moved to transfer the Special Trial No. 3 of 2003 (State v. Jamil Ahmad) from the court of Additional Sessions Judge, Mainpuri to the Court of Special Judge (N.D.P.S. Act) where it is available near the District Mainpuri.
2. The facts of the case, as detailed in the accompanying affidavit, are that police of Bichhawa District Mainpuri has shown the false recovery of Smack from the possession of the applicant and he was challenged under Section 18/20/29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as Act). After investigation, charge sheet was filed against the applicant in the Court of Sessions Judge, Mainpuri. The Sessions Judge, Mainpuri transferred the case to the Additional Sessions Judge, Court No. 3, Mainpuri and trial of the case started before the said court, which has recorded the statement of witness Sattar on 21.11.2005
3. According to Section 36A of the Act, all the offences under this Act shall be tried by the Special Court constituted for the area. Section 36A of the Act lays down the constitution of the special court. Thus, according to the applicant, only the Special Court is competent for the trial of the cases under the said Act and trial of the applicant by the Additional Sessions Judge, Mainpuri is illegal as he is not competent for trial of the cases under the said Act, The Additional Sessions Judge has recorded evidence and tried to conclude the trial of the case, to which he is not empowered to do.
4. In paragraph 11 of the affidavit, it has been deposed that there are Special Courts of N.D.P.S. Act at Kanpur Nagar and Agra, hence prayed for transfer of Special Trial No. 3 of 2003 from the court of Additional Sessions Judge, Court No. 3, Mainpuri to any other Special Court constituted under Section 36 of the Act. Along with the transfer application, charge sheet and copy of the statement of witness have been annexed.
5. I have heard Sri Yagya Deo Sharma, learned Counsel for the applicant and learned A.G.A. on this point. The fact that the case under the Act 61 of 1985, is proceeding in the court of Additional Sessions Judge, Court No. 3 at Mainpuri is undisputed. It is also admitted position that no court has been constituted in the district of Mainpuri as required under Section 36 of the Act. Section 36D, as inserted by Act 2 of 1986 with effect from 29.5.1989 and also by Act 9 of 2001 with effect from 2.10.2001 lays down the transitional provisions which runs as follows:
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 cognizance by a Court of Session under Sub-section (1).
6. A plain reading of Section 36D of the Act shows that until a Special Court is constituted under Section 36 of the Act, case under this Act shall be tried by a court of session. It would not be out of place to mention here that at present no Special Court exists in the State of Uttar Pradesh. They did exist in certain districts till the financial year 2004-2005. Later on, the State of Uttar Pradesh abolished the functioning of these courts with effect from 31-3-2005. This Court, by letter No. 5436/MainB/Admin.(A-3), dated 11-4-2005, has directed the District Judges of those districts where the courts were constituted under the Act, that the offences under the said Act be tried in accordance with the transitional provisions contained in Section 36D of the Act. Even prior to abolition of the courts constituted under the Act, there was no court in the district Mainpuri and the case were being tried by the Sessions Judge under the transitional provisions of Section 36D of the Act. Thus, the argument of learned Counsel for the applicant that the trial by Sessions Court is illegal, does not hold good. The question of transferring this case to district Agra or Kanpur Nagar, where special courts have been constituted is also groundless as no court exists at present.
7. The learned Counsel for the applicant has further submitted that in Section 36D of the Act, the provision has been made that such cases shall be tried by the court of session but the present case is not being tried by the Sessions Judge but by the Additional Sessions Judge. This argument also does not hold good for the simple reason that the cases under Section 36D of the Act shall be tried by a Court of Session. The Court of Session includes the Sessions Judge and the Additional Sessions Judge. According to Article 236 of the Constitution of India, "The expression 'district Judge' includes...sessions judge, additional sessions judge and assistant sessions judge".
8. Thus, in view of the constitutional provisions, so far as Sessions Court is concerned even the Additional Sessions Judge is included in the Sessions Judge or the District Judge, as the case may be.
9. Thus, in view of the above legal position, the transfer application is devoid of any force and it is hereby dismissed.