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  • M.A.Bukhari
  • B.M.Gupta
  • Anant S.Dave
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  • Mr. Justice D.H. Waghela
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Citation Codes
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Advocates
  • M.A.Bukhari
  • B.M.Gupta
  • Anant S.Dave
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  • Mr. Justice D.H. Waghela
Acts
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Smart Summary

Summary of Legal Opinion

Factual and Procedural Background

The present summary relates to Criminal Misc. Application Nos. 5798 and 5799 of 2002 (also referred to as 2000 in the record), in which the petitioners challenged identical orders dated 3.7.2002 (recorded below Exhibits 39 and 50) in Sessions Case No. 220 of 2000 and Sessions Case No. 143 of 2000. The impugned orders were passed by the learned Special Judge, Court No.10, Ahmedabad, rejecting the petitioners' applications to recall the order framing charge and to require the trial Court to follow Section 244 of the Code of Criminal Procedure (Cr.P.C.) to record pre-charge evidence.

The complaints were filed by the Intelligence Officer, Narcotic Control Bureau, Zonal Unit, Ahmedabad. Both Sessions cases arose out of a single C.R. No. NCB/6/99. No notification constituting Special Courts under Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been published in the State, and the City Civil and Sessions Court took cognizance and, after hearing both sides, framed charges on 14.9.2000.

The central procedural dispute was whether a Special Court under the NDPS Act, during the transitional arrangement where a Court of Session functions as a Special Court, is a court of original jurisdiction required to record evidence under Chapter XIX of the Cr.P.C. at the pre-charge stage where the case is instituted otherwise than on a police report.

Legal Issues Presented

  1. Whether a Special Court constituted (or a Court of Session functioning as a Special Court under the transitional provision) under the NDPS Act is a court of original jurisdiction required to record pre-charge evidence under Chapter XIX (specifically Section 244) of the Cr.P.C. when the proceedings are instituted otherwise than on a police report.
  2. Whether the procedure to be followed before the Special Court is the procedure prescribed for trial before the Court of Session under Chapter XVIII of the Cr.P.C., or whether the matter must be treated as a warrant case triable by a Magistrate (invoking Section 190/Section 244 procedures) in the absence of committal to a Court of Session.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners (through their counsel, Mr. B.M. Gupta) contended that the cases should be treated as warrant cases because of the punishment prescribed, and that cognizance on a complaint under Section 190 Cr.P.C. can be taken by a Magistrate. In the absence of committal to a Court of Session, and because a Special Court is distinct from a Court of Session, the procedure applicable should be that for warrant cases before a Magistrate (which includes pre-charge evidence under Section 244 Cr.P.C.).
  • Relying on Section 36-A(1)(d) of the NDPS Act, the petitioners argued that taking of cognizance by a Special Court without prior committal was permitted, and combined with Section 36C (which made provisions of the Cr.P.C. applicable to Special Courts) they submitted that the Cr.P.C. provisions applicable to Magistrates (including Section 244) must be followed.
  • It was further argued that the view that Chapter XVIII procedure (trial before Court of Session) applied was incorrect because Section 226 of the Cr.P.C. contemplates committal under Section 209 at the stage of opening the prosecution case, a step that would be missing if a Special Court took cognizance under the NDPS Act.

The opinion does not contain a detailed account of respondents' specific counter-arguments in adversarial form; instead it records the trial Court's reasoning and the appellate court's analysis of statutory provisions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Banka Das v. State of Orissa [1993 Cri.L.J. 442] Interpreted Section 36A of NDPS Act as indicating that a Special Court exercises certain powers of a magistrate; that until a Special Court is constituted under S.36 the Court of Session exercises the powers of a Special Court. The judgment was relied upon by petitioners but the court found it not applicable or not supportive of the petitioners' plea in the present factual and statutory context.
Sardarsingh Nagsingh Rajput v. State of Gujarat [1993 Cri.L.J. 3474] Supported the submission that offences under NDPS Act are to be tried by Special Courts (including Sessions Courts during transitional period) and that the chargesheet should be submitted before the Special/Session Court. Cited by petitioners but the court regarded it as not applicable or not supporting the petitioners' position on procedure for pre-charge evidence.
A.R. Antulay v. Ramdas Sriniwas Nayak [AIR 1984 SC 718] General principle that a court of Special Judge is a court of original criminal jurisdiction and shall have all powers except those specifically excluded. One of several authorities cited to support the submission regarding powers of a Special Judge; the court treated these authorities collectively as not supporting the petitioners' plea in the present context.
State of Tamil Nadu v. Krishnaswami Naidu [AIR 1979 SC 1255] General authority on powers/jurisdiction of special criminal courts. Cited by petitioners' counsel but found not to assist the petitioners on the specific statutory construction issue before the court.
Suryakant Ramdas More v. State of Maharashtra [1989 Cri.L.J. 2422] Authority on special courts/original criminal jurisdiction. Cited but not found to support the petitioners' submissions in the facts and statutory context of this case.
Harshad S. Mehta v. State of Maharashtra [2001 (6) Supreme 694] Authority concerning jurisdiction/powers of criminal courts. Cited by petitioners; court did not find it applicable to advance the petitioners' contention on pre-charge procedure under NDPS Act.
State of Tripura v. Bhupen Dutta Bhowmik [2001 (5) Supreme 233] Authority regarding criminal procedure and courts' powers. Relied upon by petitioners but the court treated it as not supporting their plea in the present statutory setting.
State of Gujarat v. Rashish Ahmed Rafik [1991 (1) G.L.R. 548] Authority cited in relation to the application of Cr.P.C. provisions to special courts. One of the cases cited by petitioners; court held such citations did not support the petitioners' position in the present matter.
State of Punjab v. Balbir Singh [AIR 1994 SC 1872] Authority on the application of Cr.P.C. to special courts and exclusions where specified. Cited to support the submission regarding Section 36C; the court nonetheless concluded these authorities did not assist the petitioners' contention here.
State of Punjab v. Baldev Singh [2000 (1) G.L.H. 1] Authority concerning procedural application of Cr.P.C. provisions. Cited by petitioners; court found it not supportive of their plea in the specific context before the court.
Legal Aid Committee representing Undertrial Prisoners v. Union of India [JT 1994 (6) SC 544] Authority referenced in relation to legislative specification when excluding provisions of the Cr.P.C. Cited but the court did not consider it to change the statutory construction outcome in favor of petitioners.
Pravinkumar Manilal Mehta v. Jyotindra M. Bhatt [1989 (1) G.L.R. 523] Support for the proposition that in a private complaint for warrant triable offences, pre-charge evidence under Section 244 Cr.P.C. is necessary. Cited by petitioners in support of the need for pre-charge evidence; court found the authority not applicable to the statutory scheme under the NDPS Act as interpreted.
Usmanbhai Dawoodbhai Memon v. State of Gujarat [AIR 1988 SC 922] Principle that offences under IPC are to be investigated, inquired into and tried in accordance with the procedural provisions of the Code. Relied upon by petitioners; the court treated the citation as not determinative in favor of petitioners given the express provisions of Section 36C and related NDPS Act provisions.

Court's Reasoning and Analysis

The court's analysis focused on the express statutory text of the NDPS Act and the Code of Criminal Procedure, 1973. The decision turned on the construction and interaction of Sections 36C and 36D of the NDPS Act, read together with Sections 4 and 5 of the Cr.P.C.

Key steps in the court's reasoning were:

  • The court quoted and relied on Section 36C of the NDPS Act, which provides that, "save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and 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 a prosecution before a Special Court, shall be deemed to be a public prosecutor."
  • The court also relied on Section 36D (the transitional provision) which provides that offences triable by a Special Court shall, until a Special Court is constituted under Section 36, be tried by a Court of Session. Thus, during the transitional period, a Court of Session functions as a Special Court.
  • Given the deeming provision in Section 36C, the court concluded that the provisions of the Cr.P.C. applicable to a Court of Session must apply to proceedings before a Special Court (or a Session Court functioning as a Special Court) unless the NDPS Act explicitly provides otherwise.
  • The opening clause of Section 36C indicates that departures from the Cr.P.C. procedure applicable to a Court of Session would only be permitted where the NDPS Act clearly provides for such departure. In the absence of any clear provision indicating a departure, the normal Chapter XVIII procedure (trial before the Court of Session) applies.
  • The court observed that the provisions of Section 193 Cr.P.C. do not obstruct this interpretation because the express provision in Section 36A(1)(d) is excluded by the opening clause of Section 36C. The court also found that Sections 4 and 5 of the Cr.P.C. (which govern applicability of the Code and savings for special laws) buttress this construction.
  • Having applied the statutory text and the deeming/transitional provisions, the court concluded that the Special Court (including a Court of Session acting as such) should follow the procedure laid down in Chapter XVIII of the Cr.P.C., and therefore separate committal proceedings and pre-charge evidence under Section 244 were not mandated in the manner urged by the petitioners.
  • The court also considered the authorities cited by the petitioners but recorded that, in the facts and statutory context of the present matter, those judgments did not support the petitioners' submissions.

Holding and Implications

Holding (core ruling):

Criminal Misc. Applications No. 5798 and 5799 of 2000 are DISMISSED.

Additional disposition:

  • Criminal Misc. Application No. 7813 of 2000 (arising from the same proceedings) was also rejected; the petition was not pressed in view of the main decision, and it was disposed of with no order as to costs. Notice was discharged and any interim relief operating was vacated.

Implications and consequences:

  • The direct effect is that the petitioners' challenges to the trial Court's refusal to recall the order framing charge and their demand for pre-charge evidence under Section 244 Cr.P.C. were rejected; the trial proceeds under the procedure applicable to a Court of Session as applied to a Special Court under Section 36C of the NDPS Act.
  • The court did not articulate any broader precedent beyond construing the interplay of Sections 36C and 36D of the NDPS Act with the Cr.P.C.; accordingly, no new broad legal principle was announced beyond the statutory construction and its application to the facts of these petitions.

This summary is prepared exclusively from the content of the provided opinion and does not add information beyond what the opinion itself contains.

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    Yusuf Ismail Vohra v. U.H. Patel Intelligence Officer

    1. By Criminal Misc. Application Nos.5798 and 5799 of 2002, the petitioners have sought to challenge the identical orders dated 3.7.2002 below Exhs.39 and 50 in Sessions Case No.220 of 2000 and No.143 of 2000 respectively, whereunder, the applications of the petitioners to recall the order framing charge and to follow the provisions of Section 244 of the Code of Criminal Procedure ('the Cr.P.C.' for short) are rejected by the learned Special Judge, Court No.10, Ahmedabad.

    The issue which was required to be decided by that Court was whether the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) was the court of original jurisdiction required to record the evidence under Chapter XIX of the Cr.P.C. at the pre-charge stage insofar as the case was alleged to have been instituted otherwise than on a police report.

    2. Since these petitions were argued on a solitary legal point and the facts are not required to be recounted, suffice it to record that the complaints against the accused, including the petitioners, were filed by the Intelligence Officer, Narcotic Control Bureau, Zonal unit, Ahmedabad, both the Sessions Cases arose out of one C.R. No.NCB/6/99 and no notification constituting Special Courts under section 36 of the ndps act having been published in the State, the City Civil and Sessions Court had taken cognizance of the complaints and, after giving opportunity to both the sides, had framed on 14.9.2000 charges against the accused.

    3. The Special Court, after an elaborate discussion on the contentions raised and the judgments cited on either side, held that that Court was required to function as a Special Court, that no separate committal proceedings were necessary, that cognizance could be taken by that Court without fulfilling any other procedural requirement and that the procedure to be followed for the trial was as prescribed for the trial before the Court of Session under Chapter XVIII of the Cr.P.C.

    4. The learned counsel for the petitioners Mr.B.M.Gupta sought to raise the same issues with a slight shift in emphasis on the part of the procedure required to be followed by the trial Court and, in substance, submitted that the cases in hand were required to be tried as warrant cases in view of the punishment prescribed for the alleged offence. Elaborating the arguments, he submitted that, by virtue of the provisions of section 190, cognizance of an offence upon receiving the complaint can be taken by a Magistrate and, in absence of commitment of the case to a Court of Session, and the Special Court being distinct and different from a Court of Session, the procedure that can be followed by the trial Court is only the one prescribed for the trial of warrant cases by Magistrates. He further submitted that by virtue of the provisions of Section 36A of the NDPS Act, particularly sub-section (1) (d), taking of cognizance without the accused being committed to it for trial was permitted. And, by virtue of the provisions of section 36c of the ndps act, the provisions of the cr.p.c. are expressly made applicable to the proceedings before a Special Court. Therefore, according to the submission, the procedure prescribed for the trial of warrant cases had to be followed. It was also sought to be argued that the view that the procedure prescribed in Chapter XVIII was required to be followed was incorrect insofar as at the very first stage of opening of the prosecution case, commitment of the case under Section 209 is contemplated in Section 226 of the Cr.P.C. and that is non-extant when a Special Court takes cognizance under the NDPS Act.

    5. A clear answer to the arguments of the petitioners can be found in the explicit provisions of sections 36c and 36d of the ndps act which read as under:

    " S. 36C. Application of the Code to proceedings before a Special Court.-

    Save as otherwise provided in this Act, the provision of the Code of Criminal Procedure, 1973 (including the provisions as to bail and 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 a prosecution before a Special Court, shall be deemed to be a public prosecutor."

    "S.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 (2 of 1989) which is triable by a Special Court shall, until a Special Court is constituted under Sec. 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 be tried by a Court of Session.

    (2) xxx xxx xxx"

    Apparently, as an arrangement for the transitional period, a Court of Session is to function as a Special Court under section 36d. and, the provisions of the cr.p.c. are to apply to the proceedings before a Special Court and such applicable provisions in respect of the procedure are the provisions applicable to a Court of Session by virtue of the provisions of section 36c. It is indicated by the opening clause of Section 36C itself that if a departure from the procedure prescribed for the Court of Session were to be made, it had to have been otherwise clearly provided in the Act. In absence of any such provision indicating a departure from the procedure, the Special Court, be it a Court of Session under the transitional provision or a Special Court constituted under Section 36, shall have to follow the procedure prescribed in Chapter XVIII of the Cr.P.C. in the proceeding before such Court. The provisions of Section 193 of the Cr.P.C. cannot come in the way of such interpretation and application of the express provisions of the NDPS Act because of the express provision made in Section 36-A(1)(d) of the Act. That provision stands expressly excluded by the aforesaid opening clause of Section 36C. This interpretation is further buttressed by the express provisions of Sections 4 and 5 of the Cr.P.C., which read as under:

    "S.4 Trial of offences under the Indian Penal Code and other laws.-

    (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

    (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

    "S.5 Saving.-

    Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

    6. The learned counsel for the petitioners relied upon the following judgments which, in the facts and in the context of legal provisions discussed hereinabove, are found not to be applicable or supporting the plea of the petitioners:

    (i) Banka Das v. State of Orissa [1993 Cri.L.J.442] was cited in support, wherein, it is held that section 36a of the ndps act clearly indicates that it was the Special Court which had to exercise the powers of a magistrate in relation to an accused person suspected of commission of an offence under the NDPS Act. The only power of magistrate before whom such an accused was produced is as provided in S. 36-A(1)(b). The only harmonious construction of S. 36A and S. 36D is that until a special Court is constituted under S. 36, the Court of Session will exercise the powers of a Special Court.

    (ii) The judgment in Sardarsingh Nagsingh Rajput v. State of Gujarat [ 1993 Cri.L.J. 3474 ] was relied upon to submit that since the offences under the NDPS Act are to be tried by the Special Courts which during the transitional period includes the Session Courts also, the chargesheet of the cases under the said Act are required to be submitted before the Special Court or the Session Court, as the case may be.

    (iii) A.R. Antulay v. Ramdas Sriniwas Nayak [AIR 1984 SC 718 ], State of Tamil Nadu v. Krishnaswami Naidu [ AIR 1979 SC 1255], Suryakant Ramdas More v. State of Maharashtra [ 1989 Cri.L.J. 2422], Harshad S. Mehta v. State of Maharashtra [ 2001 (6) Supreme 694, and State of Tripura v. Bhupen Dutta Bhowmik [ 2001 (5) Supreme 233]: The learned counsel cited the above cases in support of his submission that Court of Special Judge is a Court of original criminal jurisdiction and shall have all powers except those specifically excluded.

    (iv) The judgments in State of Gujarat v. Rashish Ahmed Rafik [ 1991 (1) G.L.R. 548], State Of Punjab v. Balbir Singh. [ AIR 1994 SC 1872], State of Punjab v. Baldev Singh [2000 (1) G.L.H. 1 ], and Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India [ JT 1994 (6) SC 544] were cited by the learned counsel to submit that the legislature has specifically provided in Sec.36C of the NDPS Act that save as otherwise provided in the Act, the provisions of the Cr.P.C. shall apply to the proceedings before a Special Court and wherever the legislature wanted to exclude the provisions of the Cr.P.C., it has specifically provided for it.

    (v) Pravinkumar Manilal Mehta v. Jyotindra M. Bhatt [ 1989 (1) G.L.R. 523] was also cited in support the submission that in a private complaint for warrant triable offences, pre-charge evidence under Section 244 of the Cr.P.C. is necessary.

    (vi) The judgment of the Apex Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat [ AIR 1988 SC 922] was relied upon to submit that all offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained therein, i.e. in accordance with the procedure prescribed under the Code.

    7. In the result, Criminal Misc. Applications No.5798 and 5799 of 2000 are dismissed at the threshold.

    8. The third Criminal Misc. Application No.7813 of 2000, arising from the same proceeding in the trial Court, was filed earlier with a prayer to quash the order passed below Exh.14 in Sessions Case No.143 of 2000 when the learned Additional City Sessions Judge refused to halt the proceedings in absence of an injunction. That grievance and the petition were not seriously pressed in light of the view as above being taken by this Court in the main matters. Therefore, that petition is also rejected with no order as to costs. Notice is discharged. Interim relief, if any is operating, shall stand vacated.

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    Comments

    Yusuf Ismail Vohra v. U.H. Patel Intelligence Officer
    (Sep 20, 2002)