Calcutta High Court
Samir Ganguly vs Intelligence Officer, Narcotic ... on 7 February, 2005
Equivalent citations: 2005CRILJ3276
ORDER Asit Kuamr Bisi, J.
1. The instant revision application arises out of the order dated 7th August, 2003 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly in N.D.P.S. Case No. 7 of 2002.
2. The facts anterior to filing of the instant revision application may briefly be narrated thus.
3. The present petitioner Samir Ganguly is an accused in N.D.P.S. Case No. 7/2002 which was initiated on the basis of a written complaint made by Shri Sadananda Mondal, Intelligence Officer attached to Narcotic Control Bureau, Eastern Zone Unit, Calcutta. It is the contention of the petitioner that since the above noted case is not instituted on the basis of a police report and the same is a warrant case instituted otherwise that on police report, the procedure laid down under Sections 244 to 247 of the Code of Criminal Procedure should be followed in the instant case. It is the grievance of the petitioner that since the learned Additional Sessions Judge who has been empowered to try the instant case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), in absence of the Special Court, had not followed the procedure enumerated under Sections 244 to 247 of the Code of Criminal Procedure in a case of like nature which has been instituted otherwise than on police re port, the petitioner filed the petition before the learned Additional Sessions Judge praying for following the procedure as enumerated in the Code of Criminal Procedure with regard to the trial of warrant cases instituted otherwise than on police report. But the learned Additional Sessions Judge disallowed such prayer made by the accused petitioner, whereupon being aggrieved the petitioner has preferred the instant revision application.
4. The sole point arising for decision in the instant revision is whether or not the procedure relating to trial of warrant cases instituted otherwise than on police report as laid down under Sections 244 to 247 of the Code of Criminal Procedure is to be followed in the present case under the Act which has been instituted on the basis of a written complaint filed by the Intelligence Officer, Narcotic Control Bureau, who is admittedly not a Police Officer.
5. Mr. Tapas Ghosh, learned Advocate for the petitioner, has contended that an Officer attached to Narcotic Control Bureau is not a Police Officer and if a complaint is filed by him and cognizance is taken thereon, the procedure for trial as enumerated in Sections 244 to 247 of the Code of Criminal Procedure should be adopted and in such case the witnesses for the prosecution should be examined before framing of charge with liberty to the defence to cross-examine the prosecution witnesses before framing of charge whereupon framing of charge may be considered by the learned trial Court. It has been urged by Mr. Ghosh that prayer made by the petitioner for adopting the said procedure in the instant case not having been allowed by the learned trial Court, the impugned order whereby the petition filed by the petitioner has been rejected suffers from patent illegality warranting interference of this Court in revision. Mr. Ghosh has sought to argue that the prosecution has to produce all their witnesses and their documents and thereafter charge may be framed if the learned trial Court finds prima facie materials to frame charge. In other words, the contention raised by Mr. Ghosh in support of the petitioner is that the instant case is substantially a warrant case instituted otherwise than on police report and as such the above noted provisions of the Code relating to trial of warrant cases Instituted otherwise than on police report, should be followed in the case although it is a case covered by the Act where the written complaint, on the basis of which the case was initiated, was made by the Intelligence Officer of the Narcotic Control Bureau who is not a Police Officer.
6. Mr. Malay Singh, learned Advocate representing the opposite party, the Intelligence Officer, Narcotic Control Bureau, Eastern Zone Unit, has vehemently opposed the above noted contentions of Mr. Ghosh. He has drawn my attention to the relevant provisions of the Act and urged that the procedure for trial of sessions cases as prescribed under Chapter XVIII of the Code of Criminal Procedure should be followed in the instant case and the provisions relating to trial of warrant cases by Magistrates as laid down under Chapter XIX of the Code have no manner of applicability to the instant case which is to be tried by the Special Court who shall be deemed to be a Court of Session under Section 36C of the Act and until a Special Court is constituted such cases are to be tried by a Court of Session. He has further drawn my attention to the fact that in absence of the Special Court in the district where the trial is taking place the Court of Session of the district is holding the said trial. Mr. Singh has drawn my attention to Section 36A(1)(d) of the Act which clearly lays down that a Special Court may, upon a perusal of police report of the facts constituting an offence under the Act or upon a complaint made by an Officer of the Central Government or a State Government authorized in this behalf, take cognizance of the offence without the accused being committed to it for trial. He has further urged that since the procedure for trial of sessions case is required to be followed in cases of like nature covered by the Act, there can hardly be any scope for applicability of the provisions relating to trial of warrant cases by Magistrates as embodied under Chapter XIX of the Code of Criminal Procedure in such case where charge can be framed, if upon consideration of the record of the case and the documents submitted therewith, and after hearing of the submissions of the accused and the prosecution in this behalf, the learned Judge is of opinion that there is ground for presuming that the accused has committed the offence complained of. He has referred to the relevant provisions relating to trial before a Court of Session as provided under Chapter XVIII of the Code of Criminal Procedure in this regard as well.
7. I have carefully considered the rival contentions made by the learned Advocates for the respective parties and the materials on record. There can hardly be any room for scepticism that the instant case under the Act is triable by Special Court and not by a Judicial Magistrate. Section 36 of the Act deals with constitution of Special Courts under the Act. Section 36D(1) of the Act provides inter alia-that any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotro-pic Substances (Amendment) Act, 1988, until a Special Court is constituted under Section 3, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session. So far as application of the Code of Criminal Procedure to proceedings before a Special Court is concerned Section 36C of the Act provides inter alia that save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for the purposes of the said provisions of the Special Court shall be deemed to be a Court of Session. The Court of Session during the absence of a Special Court is empowered to try cases during the transitional period and it should be deemed to be a Special Court having power under Section 366A(1)(d) of the Act to take cognizance of the offence and there is no need for commitment for Court of Session to take cognizance of the offence committed under the Act. The non obstante clause contained in the beginning of Section 36A of the Act necessarily indicates that the procedure contemplated in the Code for trial of the offences under the Act is not at all applicable and the procedure contemplated by the said section for trial of the cases under the Act alone is applicable. In this context reference can be made to a Full Bench Decision of Orissa High Court in Banka Das v. State of Orissa, reported in 1993 Cri LJ 442 on page 453 at para 15.
8. From the materials on record including the order impugned I find that since no Special Court for trial of N.D.P.S. cases had been constituted in the district of Hooghly at the relevant point of time, the learned Sessions Judge of the district who has been vested with the power to try cases under the Act must be deemed to be a Special Court having power under Section 36A(1)(d) to take cognizance of the offence and for all practical purposes of the Court of Session is put on par with the Special Court. I find sufficient force in the contention raised by Mr. Singh on behalf of the opposite party that the procedure for trial of warrant cases by Magistrate as laid down under Chapter XIX of the Code of Criminal Procedure is not at all applicable to trial of the cases before the Special Court under the provisions of the Act. Viewed in this perspective I find that the contention raised by Mr. Ghosh on behalf of the petitioner regarding applicability of the procedure for trial of warrant cases instituted otherwise than on police report, as laid down under Chapter XIX of the Code of Criminal Procedure to trial of the instant case before the Special Court under the Act is devoid of merit.
9. For the foregoing reasons I find no ground to interfere with the order impugned. There being no merit in the revision application, the same is bound to fail. The revision application is accordingly dismissed.
10. Let a copy of this order be sent down to the learned Court below forthwith.
11. Xerox certified copy of this order, if applied for, be given to the parties as expe-ditiously as possible.