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"The accused of Special POTA Case No.1/03, 2/03 and 3/03 after having been committed to the judicial custody were not brought before the Court and therefore, the Court on issuance of the notices had decided to fix the matter at Sabarmati Central Jail in wake of the invocation u/s 268 of Cr.P.C. dt. 07.5.2003 which was in respect of nearly 45 accused of Special POTA Case No.1/03."

It is further contended that on earlier occasion also, the Special Court has passed similar order fixing the matter at Sabarmati Central Jail qua 45 accused who were shown in the order dated 7-5-2003 at Annexure-C issued under Sec. 268 of the Code. It is further contended that Sec. 24 of the Act does not stipulate hearing of accused for fixing up the place of trial nor passing of any order and, therefore, the contentions in this regard made by the learned counsel for the petitioners would amount to rewriting the said section. It is further contended that provisions of other special legislations like Secs. 36(1) and 36-A(1)(a) of NDPS Act, 1985, Secs. 12-A and 12(AA)(a) of Essential Commodities Act, 1955 and Sec. 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also provide for constitution of a Special Court for the specified areas and not for a particular case where all offences under those legislations are triable for the area in which offence has been committed. Since the Special Court constituted under the Act has wider discretion regarding fixation of "place of sitting for trial" than the one constituted under aforesaid legislations, selecting Sabarmati Central Jail, Ahmedabad as the place of sitting for trial in view of orders dated 7-5-2003 and 23-5-2003 is eminently just and proper. It is further contended that since Sec. 49 of the Act lays down modification in respect of some provisions of the code, it does not mean that remaining provisions of the Code will mutatis mutandis apply in all cases of the Act. In those cases, since the Act has an overriding effect, the provisions of the Act which are inconsistent with similar provisions of the Code shall prevail over the provisions of the Code. It is also contended that although similar order dated 7-5-2003 (Annexure-C) issued under Sec. 268 of the Code was already there in respect of 45 accused who, since the date of arrest, were in Sabarmati Central Jail, said order is not challenged but, only the order dated 23-5-2003 Annexure-B issued under Sec. 268 of the Code in respect of 19 accused including the present petitioners who, at the relevant time, were in Baroda Central Jail is challenged. In view of the aforesaid, it is submitted that order Annexure-B does not require detailed facts and grant of personal hearing to the parties and it is an administrative order passed by the State Government without involving any quasi-judicial element.

17. In view of the express provisions in the Act for constitution of Special Court and for fixing its place of sitting, I am of the opinion that Sections 9(6), 177 and 178 of the Code would not be applicable in this case in view of overriding effect under Sec. 56 of the Act over the Code. Sec. 56 of the Act states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument having effect by virtue of any enactment other than the Act. Therefore, the contention of Mr.Vakharia that Secs. 177, 178 and 9(6) of the Code will be applicable to the present case gets negatived. It is also the contention of Mr.Vakharia that provisions of other special legislations like Secs. 36(1) and 36-A(1)(a) of NDPS Act, 1985, Secs. 12-A and 12(AA)(a) of Essential Commodities Act, 1955 and Sec. 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also provide for constitution of a Special Court. However, those special legislations are for the specified areas and not for a particular case where all offences under those legislations are triable for the area in which offence has been committed. Since the Special Court constituted under the Act has wider discretion regarding fixation of place of sitting for trial than the one constituted under aforesaid legislations, this contention of Mr.Vakharia also gets negatived. In view of the aforesaid, I am unable to accept the contentions raised and the arguments advanced by the learned counsel for the petitioners that the notification Annexure-A is either illegal, arbitrary, ultra vires, without authority, competence or jurisdiction. Over and above, since the place of conducting the trial of POTA Case Nos.1/2003, 2/2002 and 3/2003 at Central Jail, Sabarmati by the Judge who presides over the Special Court is as provided under proviso to Sec. 24 of the Act, he/she is entitled to do so with the restriction to change the place of sitting within the State and hence, said action of the learned Special Judge can also not be said to be illegal.