Inspector, Customs and Central Excise vs Jagdev Singh alias Jaba and Others

G.L. Raina, J.—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.

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 u/s 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.

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 u/s 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.

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.

Section 36 read with section 36D of the Act appears to have created a bit of confusion, so reference to those provisions is necessary.

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.

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 u/s 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.

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 u/s 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 u/s 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 u/s 36.

Now the creation of the Court of Session.

It is u/s 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:

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 u/s 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.

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"".

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.

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.

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.

Section 36D of the Act provides for transitional provisions for trial of the cases in the absence of Special Court required to be constituted u/s

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.

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.

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.

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.