N.P. Ahammed Koya vs State of Kerala and Others

S. Padmanabhan, J.—Second accused is the Appellant. Additional Sessions Judge, Kozhikode tried him along with the first accused in S.C. Na 145 of 1989 for offences punishable under Sections 17 and 18 of the Narcotic Drugs and Psychotropic Substances Act (the Act). First accused was convicted under both counts. Under each count, he was sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 1,00,000 with, a default sentence of rigorous imprisonment for two more? years each. Appellant was convicted u/s 17 alone and the sentence awarded is rigorous imprisonment for ten years and fine of Rs. 1,00,000 with a default sentence of rigorous imprisonment for two more years. First accused submitted to the conviction and sentence.

At about 4.20 p.m. on 21st April 1989, near the Kozhikode beach, they were found sharing smoke of goly containing opium using a coconut shell and tubes. First accused was also found possessing 6 gm. of opium in a plastic paper and a plastic container with 81 golies of opium.

Detection, search, seizure and registration of case were by P.W. 5. Investigation was conducted by P.W. 7. P.Ws. 1 to 4 are persons present along with P.W. 5 when action was taken. P.W. 2 is a constable, who was in the police party P.Ws. 1, 3 and 4 are independent witnesses. P.W. 1 attested the scene mahazar and P. Ws. 2 to 4 attested the scene mahazar. P.W. 3 turned hostile, but admitted having attested the scene mahazar. Others supported the prosecution case. Ext. P-7 report of chemical examination showed that the material objects seized from the first accused were opium and the coconut shell and black spherical soft substance used for smoking also contained opium. The uniform evidence of the prosecution witnesses is that when P.W. 5 and his party reached the scene, both the accused were found sharing smoke of golies containing opium using coconut shell and pipes. The self same coconut shell and pipes, on chemical examination, were found to contain opium.

Now we are concerned only with the question whether the Appellant was found using prepared opium, which takes in any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and what remained in the shell and pipes was dross or other residue after opium was smoked. Opium is coagulated juice of the opium poppy and any mixture, with or without any natural material of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 percent of morphine. The evidence of the witnesses, coupled with the report of chemical examination, shows that the Appellant was found smoking prepared opium. On the basis of the evidence, his convection could only stand.

Attempt was to contend that the trial is vitiated and hence the case has to be sent back for a de novo trial. Sections 36 and 36A of the Act taken together shows that offences under the Act are triable only by special Courts constituted for the area and the Court can take cognizance without the accused being committed for trial as contemplated in Section 193 of the Code of Criminal Procedure (the Code). In this case, charge was laid before the Judicial Second Class Magistrate, who committed the case to the Court of Sessions. That cannot be said to be an illegality vitiating the trial or affecting jurisdiction. The argument cannot, therefore, be accepted.

In Kerala, no special Court is constituted u/s 36. Therefore, under the transitory provisions contained in Section 36D, until a special Court is constituted, the offence could be tried by a Court of Sessions. In this case, after committal, Sessions Judge made over the case to the Assistant Sessions Judge, who framed charge u/s 17 and recorded the entire prosecution evidence. Thereafter, Sessions Judge re-called the case and made it over to the Additional Sessions Judge, presumably under the impression that the Assistant Sessions Judge did not have jurisdiction. Additional Sessions Judge found the charge to be defective and hence framed charge u/s 18 also. Thereafter, as required by the accused, the relevant witnesses were re-called and allowed to be cross examined. De novo trial was not conducted. This is also said to be an illegality. Counsel even said that the Assistant Sessions Judge, who initially tried the case, was lacking in inherent jurisdiction and hence it was illegal to have used the evidence recorded by him.

If actually the Assistant Sessions Judge did not have jurisdiction, a de novo trial ought to have been held by the Additional Sessions Judge. In such a case, trial by using the same evidence could be said to be illegal. Otherwise, conviction on the evidence recorded by the predecessor in whole or part is perfectly legal u/s 326 of the Code. In this case, the proviso to that section was also complied with. The question, therefore, is whether the Assistant Sessions Judge had jurisdiction to try the case.

Section 36(3) provides the qualification for appointment as special Judge, who alone was intended to be invested with exclusive jurisdiction. One who was a Sessions Judge or Additional Sessions Judge alone is qualified to be appointed as special Judge. Counsel, therefore, said that the authorization to the Court of Session under the transitory provision in Section 36D could be taken to be meant only in favor of a Sessions Judge or Additional Sessions Judge and not an Assistant Sessions Judge. In that sense, he said that trial by the Assistant Sessions Judge was without jurisdiction and as such, a nullity. I cannot agree. Offences under the Act are those punishable with imprisonment up to a '' maximum of twenty years. As a trial Court, that maximum sentence could be awarded only by the Sessions Judge u/s 28 of the Code. An Assistant Sessions Judge could award a sentence only upto imprisonment for ten years. When a special Court is constituted under the Act, u/s 36, that Court alone is having exclusive jurisdiction, as provided in Section 36A. The provision is introduced for speedy trial of offences. Courts of different hierarchy are not provided under the Act. Therefore, the Court, which is constituted, must be one competent to try all offences and award penalty upto the maximum imprisonment provided. Such competency is having only for a Sessions Judge or Additional Sessions Judge and not for Assistant Sessions Judge. That is why Section 36(3) provided the qualification as that of a Sessions Judge or Additional Sessions Judge. Till a special Court is constituted, the position is different. u/s 36D, till a special Court is constituted, the jurisdiction is with the "Court of Session" and not the Sessions Judge or the Additional Sessions Judge.

u/s 9 of the Code, there must be established a "Court of Session" for every Sessions division. It shall be presided over by a Sessions Judge. Additional and Assistant Sessions Judge could also be appointed to exercise jurisdiction in the Court of Sessions. Sessions Judge, Additional Sessions Judges and Assistant Sessions Judges are all Judges exercising jurisdiction in the Court of Session. From Section 10 of the Code also, it is clear that Assistant Sessions Judges are also Judges exercising jurisdiction in the Court of Session, to whom the Sessions Judge can distribute works depending upon the limit of their powers. Therefore, the Court of Session, contemplated in Section 36D of the Act, must definitely take in the Assistant Sessions Judge also. Unlike special Courts constituted under the Act presided over by persons appointed solely from Sessions Judges and Additional Sessions Judge, the Court, of Session exercising jurisdiction under the transitory provision contained in Section 36D consists of Assistant Sessions Judges also and they are also competent to exercise jurisdiction over the cases made over to them by the Sessions Judge.

If the only sentence or minimum sentence prescribed for an offence is beyond the jurisdiction of the Assistant Sessions Judge, it could be said that he has no jurisdiction to try the offence, say, for example, an offence punishable u/s 302 of the Indian Penal Code. It could be tried only by the Sessions Judge or Additional Sessions Judge. In such a case, trial by Assistant Sessions Judge is illegal because of want of jurisdiction. In a case where the maximum punishment alone is Prescribed, the sentencing discretion to award, any sentence subject to the maximum is with the Court. For offences like those under the Act, for which the maximum sentence is twenty years imprisonment, if the sentence to be awarded is only ten years or" less, the Assistant Sessions Judge is perfectly competent. For example, an offence u/s 324 of the Indian Penal Code is punishable with imprisonment upto three years. It is triable by a Judicial Second Class Magistrate though u/s 29(3) of the Code he could award a sentence only upto one year. If the accused is found guilty and the Magistrate feels that a sentence of imprisonment for more than one year is to be awarded, he can forward the accused to the Chief Judicial Magistrate u/s 325 of the Code. The Chief Judicial Magistrate can act u/s 325(3).

For offences under Sections 307 and 326 of the Indian Penal Code, punishment is imprisonment for life or imprisonment up to ten years. The farmer is triable exclusively by a Court of Session and an Assistant Sessions Judge is competent to try it whereas the latter is triable by a Judicial First Class Magistrate. Lack of'' jurisdiction arises only in the matter of awarding more than the sentence awardable by the Court according to law. The fact that Sections 307 and 326 provide for imprisonment for life or imprisonment upto ten years will not make any difference on the ground that/two such stages are not provided for offences under the Act. What is awardable for certain offences under the Act is imprisonment upto twenty years subject to a minimum imprisonment of ten years. That minimum imprisonment is within the jurisdiction of the Assistant Sessions Judge. If that minimum was not there, something less also could have been awarded. The minimum term of imprisonment provided, therefore, does not affect the jurisdiction at all.

Unlike Section 409(2) of the Code, Section 409(1) does not contain any inhibition regarding withdrawal or re-calling of a case from the Assistant Sessions Judge after trial has started. Section 409(3) permits the Sessions Judge to make over such a case withdrawn or re-called. In such a case also, Section 326 of the Code is applicable. The evidence recorded by the predecessor, in whole or part, could be used by the successor subject to his discretion under the proviso to re-call and further examine any of the witnesses. Therefore, there is absolutely nothing illegal and there was no lack of jurisdiction. There is no question of prejudice also. Appellant'' never wanted anything more than what the Additional Sessions Judge allowed.

There is no merit in the contention that the Appellant was not taken to a doctor and examined by him to show that he used prepared opium. The penal provision does not require proof of intoxication. User of prepared opium alone is sufficient u/s 17. The uniform evidence is that the Appellant was found sharing the smoke with the first accused and they were found under the influence of smoke. The smoking apparatus, on examination by the public analyst, was found to contain opium, as seen from Ext. P-7. Conviction has only to stand. Since the minimum sentence alone was awarded, no interference in that respect is also necessary.

Criminal appeal is dismissed.