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Judgment
Arumugham, J.—While this revision was sought to be admitted to challenge the proceedings of the learned Special Judge, Economic
Offences and Narcotic Drugs and Psychotropic Substances Act, Salem in C.C. No. 24/94 dated 18.8.1995 framing seven courts of charges u/s
23 read with Section 18, Section 25, Section 23 read with Section 8(c), Section 28, Section 25 read with Section 8(c) and Section 21 read with
Section 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ""N.D.P.S. Act"") against the 11 accused, on
ordering notice of motion I have had the occasion to hear the Bar for and on behalf of the respective parties and consequently the revision itself
was heard on merits.
In furtherance of a conspiracy hatched out by the accused themselves along with the absconding accused Durgashankar and Lalabahadur and in
furtherance of the same a total quantity of 361.6 kgs of opium and 66.1 kgs of Herein a narcotic drug was alleged to have been smuggled from
Nansavur in order to sent it to Habeel and Zulfi of Srilanka without any valid licence or documents and that while carrying on the same on
15.5.1993 at Thallappallam near Salem town having kept in the boxes containing in a car bearing registration No. TNP 9246, they were caught
red-handed by the Respondent and consequent to the seizure an the investigation done in accordance with law by the Respondent, a private
complaint against all the accused was filed before the court below by the Respondent for the offences mentioned above.
On taking cognizance of the offences the learned Special Judge after the issuance of the process, framed the charges against all the accused for
all the offences above referred on 18.8.1995. It was this order of framing various charges against the accused is being challenged by the Petitioner,
who is the first accused before the trial Court.
Mr. B. Kumar, learned Counsel would contend that though the Petitioner being the first accused was alleged to have been the brain behind the
whole incident according to the prosecution, he challenges on the ground that the very procedure adopted by the learned Special Judge, in straight
away framing the charges is not competent, and not provided by the provisions of any law specially meant for the trial of the offences under the
N.D.P.S. Act. While stating so, learned Counsel would further submit that inasmuch as the complaint lodged by the Respondent is a private
complaint, by virtue of Section 200 Code of Criminal Procedure. it is incumbent upon the Special Judge to examine all the witnesses and materials
produced by the prosecution and on the basis of the evidence is recorded and alter giving an opportunity to the accused to cross examine, the
court has to form a prima facie view of the prosecution case and then alone the learned Special Judge is competent to frame the charges on the
basis of it, and that instead framing the charges straight-away on the materials and complaints filed by the Respondent, is not correct and the whole
proceedings is vitiated for went of legal sanctity. Mr. B. Kumar would ten also contend that where there is no alternative procedure provided either
in the statue viz., N.D.P.S. Act or in the Code of Criminal Procedure expressly, the procedure of the Code since it has been characterised as
parent statute shall also necessarily be followed and that therefore, on framing of the charge straight-away by the learned Special Judge, the
accused lost all the valuable right of cross examination in the preliminary stage before forming a prima facie view. He would also raise a legal plea
that all the statements recorded by the Respondent do not attract Section 161 of the Code and that therefore the procedure provided for private
complaint case has to be followed and not otherwise. Lastly, learned Counsel would also contend that there was no material of any king to involve
the Petitioner in all the offences.
Controverting every one of the said contentions, Mr. P. Rajamanickam, learned Special Public Prosecutor on behalf of the Respondent would
submit that all the contentions raised by Mr. Kumar have no force at all as the statute viz., N.D.P.S. Act itself contains the very procedure to be
followed, and that only in accordance with the same the learned trial Judge has framed the charges and that there was no impropriety or illegality
inherent in the various charges framed by him, and so saying the learned Counsel by pacing reliance upon very many rulings submits that the
revision lacks and merits to be probed.
In the context of the above rival position, the only question to be considered in this revision is, whether the procedure adopted by the learned
Special Judge under the N.D.P.S. Act is vitiated with any illegality or impropriety as claimed by the revision Petitioner?
Since the trial of the above case for the offences above mentioned is pending and yet to commence, I do not propose to have a discussion of
any length of factual aspects in this revision. Only with regard to the contends of the charges the revision Petitioner has expressed a grievance that
the framing of the charges directly by the learned trial Judge from the complaint and the materials placed by the Respondent is not correct and
incompetent and that instead of adopting the procedure provided for the trial of warrant cases instituted otherwise than on police report the framing
of the charges directly upon the materials placed before the Court below is deemed to be one vitiating the whole proceedings according to the
Petitioner. To substantiate the said contention, the learned Counsel would point out that the the Respondent viz., the Assistant Director Directorate
of Revenue Intelligence, Tiruchirappalli is not a police officer and that therefore, the complaint lodged by him before the court below is only
deemed to be one u/s 200 Code of Criminal Procedure. a private complaint and that the offences alleged in the said complaint are the one to be
tried by adopting the warrant procedure and that was the reason why, he would emphasize that the procedure contemplated by the Code of
Criminal Procedure for the private complaint has to be followed.
The above contentions were stoutly opposed and attacked by Mr. P. Rajamanickam learned Counsel appearing for the Respondent who had
with every night contended that to frame the charges for the offences above referred against the Petitioner and others, is well clothed by the law
and that in this regard, the learned trial Judge has been fully empowered by the specific provisions of the statute itself and for the very reasoning the
arguments advanced on behalf of the Petitioner amount to a total misleading. By adverting the relevant provisions of N.D.P.S. Act, learned
Counsel for the Respondent had urged me to dismiss the revision as not maintainable at all and he would say further that in vies of the express
provisions provided to in the Act itself, there arises no need or occasion to entertain this revision.
Section 36-A of the N.D.P.S. Act, 1985 runs like this:
36-A. Offences trialable by Special Courts. - (1) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974)
(a) all offences under this Act shall be trialable only by the Special Courts constituted of the area in which the offences has been committed for the
area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be
specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or
Sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such
person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven
days in the whole whore such Magistrate is an Executive Magistrate:
Provided that where such Magistrate considers-
(i) When such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under Clause (b) the same power which a Magistrate having
jurisdiction to try a case may exercise u/s 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case
who has been forwarded to him under that section;
(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.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused
may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
A casual reading of Sub-section (d) of Sub-section 36-A of N.D.P.S. Act would clearly provide a direct answer for all the contentions raised
by Mr. B. Kumar, learned Counsel for and on behalf of the Petitioner. He has not disputed that the learned Special Judge, Salem who passed the
order framing the charges in the instant revision is not empowered with any power to try the N.D.P.S. cases. For trying all the offences under the
N.D.P.S. Act and the economic offences, the learned trial Judge in the instant case has been fully authorised to conduct the trial and dispose the
case in accordance with law. The Respondent in the instant case is the ''Assistant Director, Directorate of Revenue Intelligence, a special
investigating agency appointed and authorised by the Government of India by the provisions of this Act and that in such capacity, he has lodged a
complaint after the investigation against the Petitioner and other accused for the offences above referred. Therefore, as provided under Sub clause
(1)(d) of the above Section, the Special Judge, Salem has taken congnizance of the various offences against the Petitioner and other accused for
the offences above referred. Therefore, as provided under Sub clause (1)(d) of the above Section, the Special Judge, Salem has taken cognizance
of the various offences against the Petitioner and other accused. It is thus made clear that the Respondent did not file a complaint by following the
procedure provided for the police authorities to warrant a report to be filed u/s 173 of the code of Criminal Procedure. If the matter is viewed in
this regard, I may straight-away say that there is no force at all in the contentions made o behalf of the Petitioner. In fact there was no fitting answer
or response given by the Bar on behalf of the Petitioner to the above position of law brought by Mr. P. Rajamanickam, learned Counsel on behalf
of the Respondent.
In P.R. Muthu v. State rep. by the Inspector of Police 1992 L.W. (Cri.) 134, a learned single judge of this Court had the occasion to observe
the following:
On the terms and tenor of Section 41 of the Indian Penal Code, there can be no doubt whatever that N.D. and P.S. Act is a special law and that is
also made clear by the Preamble appended to the said Act.
A survey of the various provisions adumbrated in the act will give an indication as to the procedure to be adopted in the trial of offenders under the
Act, the powers of the Court in granting and extending the remand, powers of Court to take cognizance of the offences, special provisions
incorporated for the consideration of the release of persons accused of offences under this Act, search and seizure provisions in case of arrest
made by various officers and other private individuals and what not. This Act, being a ''special law'', various provisions incorporated in the Act
regulating the procedure in the matter of trial, remand, etc. alone will be applicable to the exclusion of the provisions in the Code and such ak
conclusion is legally plausible on the face of the provisions of Sections 4, 5 and 2(y) of the Code as well as the provisions adumbrated under
Sections 41 and 42 of the Indian Penal Code.
The offences under this Act are trialable by Special Courts constituted u/s 36 of the Act. In the absence of a Special Court having been constituted
on and from the date of coming into force of the Act, transitional provisions had been made, as found traceable to Section 36-D.
As Special Court for the trial of offences under this Act had not so far been constituted by the State Government of Tamil Nadu it goes without
saying that under the transitional provisions, the offences under this Act shall have to be tried by a Court of Session.
A reading of Section 36-B particularly with Section 36-C for the application of the Code to proceedings before a Special Court with the
transitional powers u/s 36-D would clearly elaborate the power ested with the Special Court and the trial before it should be conducted in
accordance with the Code as a Sessions Judge under the deeming provision which is otherwise termed by the Apex Court as the legal fiction. This
legal fiction with the elaborate powers provided by the statute cannot be defeated by averting to any technicalities which has been referred to only
for the trial conducted for the offences upon the basis of a police report.
In Shri Harish Tandon v. The Addl. District Magistrate, Allahabad U.P. JT 1995 (1) S.C. 291. Their Lordships of the Supreme Court had
elaborated the legal fiction and the power of the same in the following words:
The role of a provision in a statute creating legal fiction is by now well settled. When a Statute creates a legal fiction saying that something shall be
deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between
what persons such a statutory fiction is to be resorted to. Thereafter full effect has to be given to such statutory fiction and it has to be carried to its
logical conclusion. In the well known case of East end Dwellings Co. ltd. v. Finbebury Borough Council (1952) A.C. 109(B), Lord Asquith while
dealing with the provisions of the Town and County Planning Act, 1947, observed:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the
consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanised it... The
statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to
boggle when i comes to the inevitable corollaries of that state of affairs.
That statement of law in respect of a statutory fiction is being consistently followed by this Court. Reference in this connection may be made to the
case of The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, . From the fats of that case it shall appear that Bombay Building
(Control on Erection) Ordinance, 1948 which was applicable to certain areas mentioned in the schedule to it, was extended by a notification to all
the areas in the province in respect of buildings of cinemas. The Ordinance was repealed and replaced by an Act which again extended to areas
mentioned in the schedule with power under Sub-section (3) of Section 1 to extend its operation to other areas. This Court held that the deemed
clause in Section 15 of the Act read with Section 25 of the Bombay General Clauses Act has to be given full effect and the expression ''enactment''
in the Act will cover the word ''Ordinance'' occurring in the notification which had been issued in that connection it was said:
The corollary thus of declaring the provisions of Section 25, Bombay General Clauses Act, applicable to the repeal of the ordinance an enactment
is that wherever the word ""ordinance"" occurs in the notification, that word has to be read as an enactment.
In the case of The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., , it was said:
Were these regulations in force on the alleged date of contravention? Certainly, they were, in consequence of the provisions of Section 24 of the
General Clauses Act. The fact that these regulations were deemed to be regulations made under the 1952 Act does not in any way affect the suit
that they were not laws in force on the alleged date of contravention is entirely misconceived.
In the case of J.K. Cotton Spinning and Weaving Mills Ltd. and Anr Vs. Union of India (UOI) and Ors, it was said:
It is well settled that a deeming provision is an admission of the nonexistence of the fact deemed. Therefore, in view of the deeming provisions
under explanations to Rules 9 and 49, although the goods which are produced or manufactured at an intermediate stage, and thereafter, consumed
or utilised in the integrated process for the manufacture of another commodity is not actually removed shall be construed and regarded as removed.
The legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.
Recently in the case of M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and
another, after referring to the case of East end Dwellings Co. Ltd. v. Finsbury Brough Council (supra) it was said that when one is bidden to treat
an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which,
must inevitably have flowed.
The Apex Court in M/s. Voltas Ltd. Bombay Vs. Union of India and others, had pronounced the effect of legal fiction in the following words:
The effect of a statute containing a legal fiction is by now ell settled, the Legislature by a statute may create a legal fiction saying that something shall
be deemed to have been done which in fact and truth has not been done, but even then Court has to give full effect to such statutory fiction after
examining and ascertaining as to for what purpose and between what parties such statutory fiction has been resorted to. In the well known case of
East and Dwellings Co. Ltd. v. Finsbury Borough Council (1952) A.C. (109) (B), Lord Asquith has said:
If your ar bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the
consequences and incidents which, if the putative, state of affairs had in fact exists, must inevitably have followed from or accompanied it. The
statute says that you must imagine a certain state of affairs; it does not say that having done so, you must caused or permit your imagination to
boggle when it comes to the inevitable corollarieks of that state of affairs.
This Court in the cases of The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, The Chief Inspector of Mines and Another Vs.
Lala Karam Chand Thapar etc., J.K. Cotton Spinning and Weaving Mills Ltd. and Anr Vs. Union of India (UOI) and Ors, M. Venugopal Vs. The
Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, and recently in the case of Harish Tandon
v. The Addl. District Magistrate, Allahabad JT 1995(1) SC 291, has dealt with in detail the effect of a statutory fiction and the limitation of the
Court to ignore the mandate of the legislature, unless it is violative of any of the provisions of the Constitution. So far Sub-section (1) of Section 33
is concerned, it mandates that agreements covered under different clauses of Sub-section (1) of Section 33 shall be deemed for the proposes of
the Act to be agreement relating to restrictive trade practices. By the deeming clause one is not required to treat any imaginary state of affairs as
real but to read the agreements specified and enumerated in Sub-section (1) of Section 33 as agreements relating to restrictive trade practices. It
can be said that Parliament after having examined different trade practices, had identified such trade practices which have to be held as restrictive
trade practice for the purpose of the Act. To keep such trade practices beyond controversy in any proceeding, a deeming clause has bene
introduced in Sub-section (1) of Section 33 saying that they shall be deemed to be restrictive trade practices. In this background, according to us,
there is not much scope for argument that although a particular agreement, is covered by one or the other clause of Sub-section (1) of Section 33,
still it shall not amount to an agreement containing conditions which can be held to be restrictive trade practices within the meaning of the Act.
Reliance was placed on the decision rendered by Apex Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, by Mr. B. Kumar,
learned Counsel on behalf of the revision Petitioner, for the following observations:
It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting
or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that
where the statute creating an offence provides for the eligibility of the compliant by necessary implication the general principle gets excluded by
such statutory provision. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger
good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of
locus standi unknown to criminal jurisprudence, save and except specific statutory exception.
Section 8(1) of the 1952 Act which confers power on the special Judge to take cognizance of offence set out in Section 6(1)(a) and (b) does not
directly or indirectly, expressly or by necessary implication indicate that the only method of taking cognizance is the police report u/s 173(2) of the
Code of Criminal Procedure. submitted by a police officer of the designated rank or permissible rank as set out in Section 5-A of the prevention of
corruption Act.
In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise
dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of
Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation inquiring into and trial of
cases by criminal courts of various designations.
In the light of the adverting of the observations of the Apex Court above referred regarding the deeming provisions and under the concept of
legal fiction in the two judgments, and the specific provisions contained in Sections 36-A to 36-D of the N.D.P.S. Act, they very effort taken by
Mr. B. Kumar on behalf of the Petitioner is being rendered futile and as such it cannot be countenanced. It would follow therefore that on
identifying the proper materials for the framing of the charges after taking cognizance of the offences by virtue of Section 36-A(1)(d) of the Act, the
learned Special Judge is empowered to proceed further by framing the charges and examining the witnesses as the Sessions Judge and to dispose
the case in accordance with law under the concept of legal fiction and all the more the provisions of the N.D.P.S. Act has provided the trial court
with full power as specially constituted. Thus, the above provision and the case laws cited and adverted to above, would provide a clear and total
answer to the grievance projected on behalf of the revision Petitioner. No other exercise has been done during the course of hearing the revision.
After having considered the whole gamut of the case, I am constrained to say that there are no merits in this revision and accordingly, it is liable to
be rejected even at this stage.
In the result, the revision is admitted and for all the foregoing reasonings the same fails and accordingly it is dismissed. The order of framing
charges by the learned Special Judge under the N.D.P.S. Act in C.C. No. 24/94 dated 18.8.1995 is confirmed and maintained.