Jammu & Kashmir High Court
Inspector, Customs And Central Excise vs Jagdev Singh Alias Jaba And Ors. on 10 August, 1998
Equivalent citations: 1999CRILJ365
ORDER G.L. Raina, J.
1. Is a case for the offence(s) punishable under the Narcotic Drugs and Psychotropic Substance Act, 1985, (hereinafter referred to as 'the Act') triable by an Additional Sessions Judge?
This is the question that has to be addressed in this reference, made by the Sessions Judge, at Jammu.
2. On a complaint for the offences punishable under Sections 8, 21, 23 and 25 of the Act having been filed, it got committed for trial to the Court of Session at Jammu. The Sessions Judge assigned/transferred the case for trial to the Additional Sessions Judge. Formal charge-sheets for the offences punishable under Section 8 read with Sections 21, 23 and 25 of the Act were drawn up against the available accused persons (one of the accused having been declared absconder). The accused pleaded not guilty to the charges whereat the trial commenced.
3. It was on 30-1-1996, when the case had reached/ripened for final hearing that the Additional Sessions Judge submitted the record to the Sessions Judge for direction on the assumption that the case was exclusively triable under Section 36D of the Act in the Court of Session, so its assignment/transfer being bad in law had vitiated the proceedings. The Sessions Judge pondered over the matter till 28-5-1998 and then made this reference recommending that the proceedings taken in the case before the Additional Sessions Judge be quashed as having been without jurisdiction and directions for de novo trial, in the Court of Sessions, be passed.
4. Counsel appearing on either side in this reference have come to support it but 1 am constrained to say that it is so because of the misconception about the legal provisions applicable.
5. Section 36 read with section 36D of the Act appears to have created a bit of confusion, so reference to those provisions is necessary.
6. Section 36 provides that the Government may, for the purpose of providing speedy trial of the offences under the Act, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification in the official gazette. The Special Court has to consist of a single Judge who has to be appointed by the Government with the concurrence of the Chief Justice of the High Court. Sub-section (3) of Section 36 provides that 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 Session Judge.
7. Section 36A mandates that notwithstanding anything contained in the Code of Criminal Procedure, all offences under the Act shall be triable only by the Special Court constituted under Section 36 (supra). Sub-section (1)(d) of Section 36A of the Act empowers the Special Court to take cognizance of the offence without the accused being committed to face trial.
8. We are not at this stage concerned with the rest of the provisions pertaining to the powers and jurisdiction of the Special Court, it is so because no Special Court has admittedly been constituted so far in this State for trial of offences under the Act. It is thus that resort has to be made to Section 36D of the Act which runs as follows :
36-D. Transitional Provisions.- (1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session :
Provided that offences punishable under Sections 26, 27 and 32 may be tried summarily.
(2) Nothing in Sub-section (1) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court1 of Session under the said Sub-section (1) and the same shall be heard and disposed of by the Court of Session.
The bare perusal of the provisions of Sub-section (2) of the abovesaid Section amplifies that the cases for the offences under the Act wherein the Court of Session has taken cognizance need not be transferred to the Special Court that is constituted under Section 36 of the Act. The conjoint reading of Sub-sections (1) and (2) of Section 36 leaves the scope for the trial of a case for an offence under the Act by a Court of Session, if cognizance thereon has been taken by that Court. This is to be so even if a Special Court is constituted under Section 36.
9. Now the creation of the Court of Session.
10. It is under Section 9 of the Code of Criminal Procedure that the Government establishes a Court of Session for every Sessions division and appoints, in consultation with the High Court, a Judge of such Court. Section 9 of the Code is:
9. Courts of Sessions.- (1) The Government shall establish a Court of Session for every Sessions division and in consultation with the High Court, appoint a Judge of such Court.
(2) The Government in consultation with the High Court, may, by general or special order in the Government Gazette, direct at what place or places the Court of Session shall ordinarily hold its sitting; but if in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions divisions, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
(3) The Government may also in consultation with the High Court appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A Sessions Judge of one session division may be appointed by the Government in consultation with the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Government in consultation with the High Court may direct.
(5) All Courts of Session existing when this Code comes into force, shall he deemed to have been established under this Code.
Under the Section the Courts of Session are established and Judges appointed to man those Courts. The Government has, under Sub-section (3) of Section 9 of the Code, the power, of course with due consultation with the High Court, to appoint Additional Sessions Judge or Assistant Sessions Judge to exercise jurisdiction in one or more such Courts. The question that arises for determination is whether the appointment of an Additional Sessions Judge or an Assistant Session Judge is to be deemed to be an appointment for the Court of Session. It is to be noted in this context that under Section 17 of the Code all Judicial Magistrates and Assistant Session Judges are to be treated as subordinates to the Sessions Judge in whose jurisdiction they exercise their powers, but the Additional Session Judge is under the scheme of the Code not a subordinate Judge to the Sessions Judge.
11. From the perusal of the relevant provisions of the Code it is amply clear that there is only one Court of Session in each Sessions division which can have its sent at different places and can be planned by a number of Judges. The Court is called the Court of Session. There cannot be any second opinion on the legal proposition that in every sessions division there is only one Sessions Court which may sit at different places and may be presided over by a number of Judges who may be called Additional Session Judges or Assistant Session Judges, but all of them together form one Court of Session. The sittings of the Court of Session at different places, being presided over by different Judges, will not split up a Court of Session. The Court is the Court of Session. It is so as the High Court we do not refer to the constituent courts as the Court of any particular Judge, either "permanent" or "additional".
12. Additional Session Courts are created in a sessions division but all those courts are the Court of Session notwithstanding that the Court of Session sits at several places. The Judges presiding over those Additional Session Courts function only as constituent courts of the Court of Session, which is one and the same. This legal preposition is further clarified by Sub-section (3) of Section 17 of the Code, reference to which has been made hereinbefore.
13. I am of the considered opinion that Additional Session Judge or Assistant Session Judge who exercise jurisdiction in the Court of Session have no separate or independent entity in the sense that the court over which they preside while exercising jurisdiction does not constitute an independent Court of Session within the meaning of Sub-section (1) of Section 9 of the Code of Criminal Procedure. There being no doubt that there has to be only one Court of Session in one sessions division and the Sessions Court may be constituted by the Sessions Judge, assisted by Additional Sessions Judge or Assistant Session Judge, but all of them constitute the Court of Session.
14. Reference to "Court of Session" in Sub-section (1) of Section 36D of the Act, has, therefore, to be interpreted to mean the Court of Session in the division which includes the Additional Session Judge, who presides over the sittings of the Court of Session along with the Session Judge.
15. Section 36D of the Act provides for transitional provisions for trial of the cases in the absence of Special Court required to be constituted under Section 36 of the Act. Offences committed under the Act are to be tried by the Court of Session and the trial of the case shall continue in that Court if cognizance has been taken notwithstanding creation of and establishment of the Special Court under the Act. The term 'Court of Session' includes in its ambit and scope the Court of Additional Sessions Judge or the Court of Assistant Sessions Judge, The legal requirement for creation of one Session Court, in each of the sessions division includes the creation of Additional Session Judge who may sit at one or different places of the Sessions Division. All these courts constitute one Sessions Court.
16. It is in this view of the matter that there is no escape from the legal position that the Court of Additional Session Judge is de jure the Court of Session which can try the cases for the offences under the Act which may be transferred/ assigned by the Court of Session to it. The Additional Session Judge has, therefore, the power to try the offences under the Act, insofar as the Additional Sessions Court is the constituent of the Court of Session having no separate entity, independent of the Court of Session. This legal position appears to have escaped the attention of the Additional Sessions Judge, who referred the matter to the Sessions Judge for orders and the learned Sessions Judge also faulted in making the reference for de novo trial of the case on the mistaken assumption that the Additional Sessions Judge lacked jurisdiction to try the case. It appears that this view has sprang up from the misconception that the Court of Additional Session Judge has separate and independent entity from the Court of Session.
17. The acceptance of the reference in the aforesaid circumstances is not possible. The view taken by the counsel appearing on either side has to be repelled. The reference is misconceived. It is accordingly hereby rejected.
18. Record would go back to the Court below for further proceedings. Parties are directed, through their counsel, to appear before the Court of Additional Session Judge, Jammu, on 17-8-1998.