Banu Enterprises vs State of J&K

Mr. B.S. Walia, J. (Oral) - Learned counsel for the petitioner contends that the learned Sessions Judge, Kathua i.e. designated Court, under

Section 36-AB of 'the Drugs and Cosmetics Act, 1940 is designated only for the purpose of conducting trial under the provisions of the Act ibid

and not for taking cognizance, which jurisdiction vests exclusively with the Chief Judicial Magistrate/Judicial Magistrate under the provisions of

Section 193 of the Code of Criminal Procedure. Learned counsel further contended that the aforementioned position was clear on bare reading of

Section 36-AD(1) of the Act ibid, which provides that provisions of the Code of Criminal Procedure are applicable to the proceedings before a

Special Court and that for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session. Sections 36AB, 36AD

of The Drugs and Cosmetics Act, 1940 and Section 193 of the Code of Criminal Procedure read as under:-

36AB. Special Courts.-(1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall,

for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of

section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (1) of section 30 and other

offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special

Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.

Explanation.- In this sub-section, ""High Court"" means the High Court of the State in which a Court of Session designated as Special Court was

functioning immediately before such designation.

(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which

the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

36AD. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court.-(1) Save as otherwise provided in this

Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the

proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and

the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:

Provided that the Central Government or the State Government may also appoint, for any case or class or group of cases, a Special Public

Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in

practise as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor

within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have

effect accordingly.

Cognizance of offence by Courts of Session

(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall taken

cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that

behalf.

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as [the High Court] by general or special order may direct

them to try, or, as the Sessions Judges of the division, by general or special order, may make over to them for trial.

Learned counsel contends that there is no provision under 'the Drugs and Cosmetics Act, 1940 where under the power to take cognizance for

offences under the Act has been vested in the designated Court i.e. the Court of Sessions unlike under 'the Narcotic Drugs & Psychotropic

Substances Act, 1985. Reference in that context is made to Section 36-A(1)(d) of NDPS Act, which reveals that under the provisions of NDPS

Act, the Sessions Court also has the competence to take cognizance of the offence.Aforementioned provisions of the NDPS Act is reproduced

hereunder:-

36-A(1)(d)- a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by

an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being

committed to it for trial.

Learned counsel for the petitioner also relies upon the decision of the Hon'ble Supreme Court in case titled 'Gangula Ashok and another v.

State of Andhra Pradesh' reported in AIR 2000 Supreme Court 740 in support of his submission. Relevant extract of the aforementioned

judgment is reproduced hereunder:-

Can a ""special court"" which is envisaged in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short 'the Act')

take cognizance of any offence without the case being committed to that court? If it cannot, then appellants cannot raise any grievance at this stage

regarding framing of a charge against them as they would get an opportunity for it later.

We have to consider whether the Special Judge could take cog-nizance of the offence straightway without the case being committed to him. If

the Special Court is a Court of Session the interdict contained in Section 193 of the Code of criminal Procedure (for short 'the Code') would stand

in the way. It reads thus :

Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time

being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it

by a Magistrate under this Code.

Section 14 of the Act says that ""for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief

Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the

offences under this Act"". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as

a Special Court. Though the word ""trial"" is not defined either in the Code or in the Act it is dearly distinguishable from inquiry. The word ""inquiry"" is

defined in Section 2(g) of the Code as. ""every inquiry, other than trial, conducted under this Code by a magistrate or court"". So the trial is distinct

from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The

added reason for specifying a Court of Session as special Court is to ensure speed for such trial. ""Special Court"" is defined in the Act as ""a Court

of Session specified as a Special Court in Section 14"". [vide Section 2(l)(d)].

Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament

provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of

Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session

and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be

conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for ""Trial before a Court of

Session"".

Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against

taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if ""the case has been committed to it by a

magistrate"", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the

Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided

differently in express language regarding taking cognizance of offences under such law. The word ""expressly"" which is employed in Section 193

denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section

only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differnetly no Court

of Session can take cognizance of any offence directly, without the case being committed to it by a magistrate.

Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that the specified Court of Session (Special

Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a magistrate. If

that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such Special Court for offences under

the Act. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence

we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which

magistrates have to do until the case is committed to the Court of session.

Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when

the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot

straightway be laid before the Special Court under the Act.

The very approach of the Full Bench of the Kerala High Court seems to be that there should be specific indication in the Act that the Special

Court gets jurisdiction to try the offence only on a committal order, and in the absence of such specific indication the Special Court must have the

right to take cognizance of the offence as though it is a court of original jurisdiction. We have pointed out above that unless there is express

provision to the contrary in any other law the interdict contained in Section 193 of the Code cannot be circumvented. Hence the reasoning of the

Full Bench in Hareendran v. Sarada (supra) is apparently fallacious.

In fact all the other High Courts which dealt with this question (the decisions of which were cited supra) have dissented from the aforesaid view

of the Full Bench of the Kerala High Court, after adverting to the reasons advanced by the Full Bench. A Division Bench of the Andhra Pradesh

High Court after referring to the Full bench decision in Hareendran v. Sarada (supra) made the following observations in Referring Officer

rep. By State of A.P. v. Shekar Nair, (1999) 3 ALT 533 = (1999) Crl. L.J 4173 :

We find it difficult to agree with the reasoning of the Kerala High Court in the two decisions referred to above. As already observed by us, in the

absence of a particular procedure prescribed by the said Act as regards the mode of taking cognizance, enquiry or trial, the procedure under the

Code will have to be applied by reason of Section 4(2) of the Code as clarified by the Supreme Court in the case of Directorate of

Enforcement (AIR (1994) SC 1775). There is no provision in the Act which excludes the application of Section 193, Cr. P.C. The mere fact

that no procedure is prescribed or specified under the Special Act does not mean that the Special Act dispenses with the procedure for committal

in the Case triable by Court of Sessions and that the Special Court gets original jurisdiction in the matter of initiations, enquiry or trial. There is no

good reason why the procedural provisions of Code relating to power and mode of taking cognizance including Section 193 should not be applied

to the Special Court.

It is contextually relevant to notice that Special Courts created under certain other enactments have been specially empowered to take

cognizance of the offence without the accused being committed to it for trial, (e.g. Section 36-A(l)(d) of the Narcotics Drugs and Psychotropic

Substances Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act.

Learned counsel contended that The Drugs and Cosmetics Act, 1940 only contemplates trial to be conducted by a Special Court, which is the

Court of Session as evident from Section 36AB and that although Section 36AD provides for the provisions of the Code of Criminal Procedure to

apply to proceedings before a Special Court but for the purposes of the said provisions, the Special Court is deemed to be a Court of Session.

Learned counsel contended that Court of Session even after being designated as a Special Court would continue to be a Court of Session and that

designation of the Court of Session as a Special Court would not denude of its character or powers as a Court of Session and that trial in the

designated Court can be conducted only in the manner provided in Chapter XVIII of the Code of Criminal Procedure, particularly Section 193 of

the Cr.P.C.

It is further contended that Section 193 prohibited Court of Session from taking cognizance of an offence as a Court of original jurisdiction and

that such cognizance could be taken only if ""the case has been committed to it by a Magistrate"" as provided for in the Code. However, there were

two exceptions to the aforesaid prohibition; firstly, when the Court itself provided differently in express language regarding taking of cognizance;

and secondly, when any other law provided differently in express language regarding taking cognizance of offences under such law. Learned

counsel contended that neither in the Code nor in the Act, there was any provision whatsoever that the designated Court i.e. the Court of Session

could take cognizance of the offence under The Drugs and Cosmetics Act, 1940 as a Court of original jurisdiction without the case being

committed to it by the concerned Magistrate. Learned counsel contended that in the circumstances, the complaint could not straightway be filed

before the designated Court i.e. Court of Session for offences under The Drugs and Cosmetics Act, 1940.

In the light of submissions made aforesaid, learned counsel contends that taking of cognizance of the complaint under The Drugs and Cosmetics

Act, 1940 by the designated Court i.e. Court of Sessions, is without authority of law.

On the last date, Mr. P. S. Chandel, learned Dy. AG, had put in appearance and had been granted time for filing objections. However,

objections have not been filed.

Mr. L. K. Moza, learned Addl. AG, appearing for respondents, states that being a legal issue the matter can be argued. Statement of counsel

for the parties is taken on record. Accordingly, petition is taken up for final disposal.

Learned Addl. AG very fairly states that in view of the fact that there is no express provision unlike in the case under the NDPS Act

empowering the designated Court i.e the Court of Sessions to take cognizance of the matter straightway without committal by the Court of

Magistrate under Section 193 of the Cr.P.C., the taking of cognizance of the complaint by the learned designated Court i.e. the Court of Sessions

Judge, Kathua is not as per the correct appreciation of law. He, however, contends that although he does not oppose the legal position, as noticed

above, yet the same should not be construed as absolving the petitioner. The apprehension of learned Addl. AG is not justified since setting aside

of the order of learned Sessions Judge taking cognizance of the complaint dehors the provisions of Section 193 of the Cr.P.C., would only result in

the matter being considered by the competent Court with regard to consideration of the matter for committal proceedings under Section 193 of

Cr.P.C., i.e. the Court of Chief Judicial Magistrate and depending upon the orders of the CJM in terms of Section 193 of the Cr.P.C. further

action would be taken as may be warranted under law.

With the aforementioned orders, the order passed by the learned Sessions Judge, Kathua dated 04.09.2013 is quashed (at page-46).

However, it is made clear that respondents would be at liberty to take action qua the complaint in accordance with law by filing the same before

the Court competent to take cognizance of the same in terms of Section 193 Cr.P.C.

Petition along with MP No.01/2016 allowed in aforementioned terms.