1. This Crl. M.C has arisen on the basis of a reference made by the Chief Judicial Magistrate, Thodupuzha in respect of C.C 131 of 1993 pending before that court under Sec. 395 of the Cr. P.C

2. The Excise Inspector, Adimaly filed a complaint against 11 accused persons alleging offences punishable under Sec. 20(a)(i) of the N.D.P.S Act and Sec. 55(c) of the Abkari Act before the Judicial First Class Magistrate's Court, Adimaly. The allegation against the accused was that on 12-10-1989 at 11:30 a.m they were found engaged in the cultivation of ganja. The Judicial First Class Magistrate, Adimaly took the complaint on file and after preliminary enquiry committed the case to the Court of Session, Thodupuzha by order dated 18-61991 in C.P 13/91.

3. The Sessions Court though took the case on file and registered as S.C 121/91 found that no offence punishable under the N.D.P.S Act was made out in the case since the detection and seizure was made on 12-10-1989 prior to the date on which the Act was made operative on 13-12-1989. But the Sessions Court however found that the facts in the case disclosed an offene punishable under Sec. 55(c) of the Kerala Abkari Act and made over the case to the Chief Judicial Magistrate's Court directing to frame charge against the accused under Sec. 55(c) of the Abkari Act and to try and dispose of the case. The C.J.M, Thodupuzha registered the case as C.C 131/93. As it was contended before the C.J.M that in view of the decision of this Court in State Of Kerala v. Thomas (1995 (2) KLT 873) to the effect that the provisions of Sec. 55 of the Abkari Act relating to the N.D.P.S Act have been impliedly repealed by the N.D.P.S Act and therefore the C.J.M is not competent to proceed with the trial of the case alleging offence punishable under Sec. 55(c) of the Abkari Act, and since the case was already committed to the Sessions Court and the Sessions Court after finding that no offence punishable under the N.D.P.S Act is made out and offence punishable under Sec. 55(c) of the Abkari Act is made out, made over the case for trial and dispose to the C.J.M's Court, the C.J.M is not competent to commit the case once again to the Court of Session in view of the decision in State of Kerala v. Vijayan (1977 KLT 458), the C.J.M made the above reference before this Court. As directed by this Court to post the matter on the Judicial side, the above Crl. M.C has been registered.

4. At the very outset it has to be pointed out that by notification No. S. 0.379(E) dated 29-5-1989 published in the Gazette of India, Extra, Part II, the Central Government made 29-5-1989 as the appointed date for the N.D.P.S Act to come into force in the whole of India. The provisions of the N.D.P.S Act came into force and became operative on 29-5-1989 and not on 13-12-1989 as stated by the learned Sessions Judge. Since the detection of offence and seizure in this case was on 12-10-1989 long after the date of commencement of the N.D.P.S Act on 29-5-1989, the finding of the learned Sessions Judge that since the detection of offence and seizure in this case was made prior to the commencement of the N.D.P.S Act, no offence punishable under the N.D.P.S Act is made out, is patently wrong, illegal and unsustainable.

5. In the decision in State Of Kerala v. Thomas (1995 (2) KLT 873) a learned single Judge of this Court has held that the provisions contained in Sec. 55 of the Abkari Act relating to narcotic drugs have been impliedly repealed by the N.D.P.S Act and therefore, the Magistrate cannot take cognizance of the offence punishable under Sec. 55(a) of the Abkari Act for possessing ganja, a narcotic drug coming within the scope of N.D.P.S Act. I am in respectful agreement with the above observations made by the learned single Judge and therefore it has to be held that the C.J.M has no jurisdiction to take cognizance of the offence punishable under Sec. 55(c) of the Abkari Act and proceed with the trial in this case.

6. The next point to be considered is whether the C.J.M has jurisdiction to commit the case once again to the court of Session in view of the fact that there is already an order of committal passed by the Judicial First Class Magistrate's Court, Adimaly by order dated 18-6-1991 in C.P 13/91 of this case to the court of session.

7. In the decision in State of Kerala v. Vijayan (1977 KLT 458) a single Judge of this court has observed as follows:

“Sec. 228(1)(a) enjoins that when a Sessions Judge transfers a case to the Chief Judicial Magistrate for trial, the latter should try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. The Chief Judicial Magistrate had no authority or jurisdiction to sit in judgment on the correctness of the procedure followed by the Sessions Judge and pass a fresh order of commitment. The commitment of the case by the Chief Judicial Magistrate we therefore, illegal and held only to be ignored as a nullity.”

8. In that case the J.F.C.M, Haripad committed the five accused persons for trial of offences punishable under Secs. 143, 147, 148, 149, 324 and 307 of I.P.C The Additional Sessions Judge, Mavelikkara before whom the case came up for trial after perusing the records and hearing the State and the accused held that only offences punishable under Sec. 143, 147, 148, 149 and 324 of I.P.C appeared to have been committed by the accused and framed charges against the accused in respect of those offences. Since those offences disclosed were not triable exclusively by the court of Session, the case was transferred to the C.J.M, Alleppey under Sec. 228 of the Cr. P.C for trial and disposal in accordance with law. The C.J.M registered the case as C.C 222/75 and proceeded with the trial. After examination of P.W 1 the C.J.M came to the conclusion that an offence punishable under Sec. 307 of I.P.C was also disclosed, basing on the evidence of P.W 1 and Ext. P1. While the case was pending trial before the Addl. Sessions Court, Mavelikkara, the High Court ordered transfer of the case to the Sessions Judge, Alleppey. The Sessions Judge, Alleppey after recording evidence held that there is already a discharge of the accused of the offence under Sec. 307 I.P.C by the Addl. Sessions Judge, Mavelikkara and the accused were not guilty of the remaining offences charged against them, passed an order of acquittal. When the Sessions Judge sent the calendar and copy of the judgment to this court for the purpose of calendar review, the above case was registered by this court. Therefore, the facts obtaining in that case and the above case regarding committal are almost identical. I am in respectful agreement with the above observations made by the learned single Judge. Therefore, it has to be found that the C.J.M though has no jurisdiction to take cognizance of the offence punishable under Sec. 55(c) of the Abkari Act and try the case, has no jurisdiction to commit the case again to the Court of Session.

9. The further question to be considered is whether this court has got jurisdiction to transfer the case from the file of the C.J.M's Court, Thodupuzha to the Court of Session, Thodupuzha for trial and disposal under the supervisory powers of this court conferred under Sec. 40 or Sec. 407 of the Cr. P.C The counsel for the accused in this case vehemently argued that in the above reference made under Sec. 395 of the Cr. P.C this Court apart from answering the reference cannot invoke the revisional jurisdiction under Sec. 401 of Cr. P.C or transfer the case under Sec. 407 of the Cr. P.C This argument advanced by the counsel for the accused in this case is absolutely unsustainable.

10. Under Sec. 401 of the Cr. P.C this court has got jurisdiction in the case of any proceeding, the records of which have been called for by itself or which otherwise comes to the knowledge of this court has got jurisdiction to exercise the powers conferred upon this. Court as appellate court under Secs. 386, 389, 390 and 391 of the Cri. P.C In this case it is true that the matter came up before this Court through a reference made by the learned C.J.M under Sec. 395 of Cr. P.C But due to that fact the discretionary jurisdiction of this Court under Sec. 401 of Cr. P.C is not at all affected or impaired. Sec. 401 of Cr. P.C is enacted to rectify the illegal and manifestly unjust orders passed by the subordinate courts. At the very outset I have already stated that the order passed by the learned Sessions Judge finding that no offence punishable under the N.D.P.S Act is made out in this case is patently erroneous and manifestly illegal. Therefore the moment this court is made aware of the fact that such an erroneous and illegal order is passed by the Sessions Court, it is not only the discretion but duty of this court to exercise its jurisdiction under Sec. 401 of the Cr. P.C is not at all affected or impaired. Sec. 401 of Cr. P.C is enacted to rectify the illegal and manifestly unjust orders passed by the subordinate courts. At the very outset I have already stated that the order passed by the learned Sessions Judge finding that no offence punishable under the N.D.P.S Act is made out in this case is patently erroneous and manifestly illegal. Therefore the moment this court is made aware of the fact that such an erroneous and illegal order is passed by the Sessions Court, it is not only the discretion but duty of this court to exercise its jurisdiction under Sec. 401 of the Cr. P.C to rectify the manifest error and illegality committed by the Sessions Court resulting in failure of justice. Therefore, without resorting to separate revision proceedings it is perfectly legal and proper for this court to pass appropriate orders under Sec. 401 of the Cr. P.C in this case.

11. The counsel for the accused submitted that since the Sessions Judge has found that no offence punishable under Sec. 20(a)(i) of the N.D.P.S Act alleged against the accused is made out in this case and the accused are acquitted by the Sessions Court and that order has become final as it is not challenged by the complainant or the State, this Court has no jurisdiction to direct the accused again to stand trial before the Sessions Court for the very same offence.

12. In support of this contention the counsel for the accused relied upon the decision in Gurudeth S/O Madhavan v. State Of Kerala. (1988 (2) KLT SN 37) wherein the Supreme Court held as follows:

“The High Court completely overlooked that there was an order of acquittal rendered by the Additional Judicial 1st Class Magistrate-II, Trivandrum by his judgment dated December 7, 1983 holding that the offence under Sec. 89(a) and (b) was not made out against the appellant. There was no appeal against acquittal preferred by the State Government. In view of this, the High Court had no jurisdiction and power to direct the conviction of the appellant under Sec. 89(a) and (b) of the Act.”

13. The Full text of the judgment of the Supreme Court referred to above is not made available to me. From the extract of the judgment found in the Short Notes it would appear that this Court convicted the accused for the offence punishable under Sec. 89(a) and (b) of the Motor Vehicles Act, in respect of which the Magistrate's Court had already acquitted the accused and the order of acquittal was not challenged, while considering the conviction and sentence entered by the trial court against the accused for the offences punishable under Secs. 279 and 304 A of the I.P.C and acquitting the accused of the offences punishable under Secs. 279 and 304A of I.P.C

14. In this case this court is not considering the order passed by the Sessions Court and convicting the accused for the offence in respect of which the accused are acquitted by the Sessions Court. This court is only considering the legality, regularity and correctness of the order passed by the Sessions Court and directing the Sessions Court to consider the case after setting aside the patently wrong and illegal order resulting in failure of justice. Therefore, the above decision of the Supreme Court relied upon by the counsel for the accused has no application to the facts of this case.

15. Even if no appeal is preferred by the State against the order of acquittal passed by the Sessions Court regarding the offence punishable under Sec. 20(a)(i) of the N.D.P.S Act, on a patently wrong and illegal assumption of the facts this court has jurisdiction under Sec. 401 and 397 of Cr. P.C to exercise the powers of revision and this contention of the accused is also not sustainable.

16. The counsel for the accused lastly submitted that detection of the offence and seizure of the contraband articles were made by the Excise Inspector, Adimaly who was incompetent as he was not an authorised officer under the Act to detect the offences under the Act during the relevant time. Therefore, according to him, even if this court directed the Sessions Court to try and dispose of the case, it will be a futile exercise wasting precious time and energy of this court.

17. In the decision in Prabhakaran v. Excise Inspector (1992 (2) KLT 860) a Division Bench of this court held that if no officer was authorised by the State Government as per clause (d) of Sec. 36A(1) of the N.D.P.S Act at the relevant point of time, the Excise Inspector has no authority to file a complaint for the offence under the N.D.P.S Act and therefore, the court of sessions or Special Court has no jurisdiction to take cognizance of the offence under the N.D.P.S Act on such complaint.

18. In this case the Public Prosecutor has submitted that the Excise Inspector who detected the offence and filed the complaint was in fact authorised by the Government under the provisions of the N.D.P.S Act during the relevant time and therefore, the complaint was perfectly valid.

19. At any rate in the absence of any material on record, whether the Excise inspector was the authorised officer or not under the provisions of the N.D.P.S Act to detect the offence and file complaint before Court, I find it is a matter to be considered by the trial court and appropriate orders passed by that court. Hence the contention of the accused is also not sustained.

20. What remains is that in view of the fact that the C.J.M is not competent to commit the case again to the court of Session, whether this court has got the power and authority to transfer the case from the C.J.M's court to the Sessions Court for Trial and disposal. The power of this Court to transfer any case or appeal from any criminal court subordinate to this court if it is found expedient for the ends of justice is conferred under Sec. 407 of the Cr. P.C The case was originally committed by the J.F.C.M's Court, Adimaly to the court of Session, Thodupuzha. Even though under Sec. 193 of the Cr. P.C the Court of Session can take cognizance of an offence only on committal by a competent Magistrate, it is clear from the provisions of Sec. 228(1)(a) of the Cr. P.C that it is only an enabling provision and does not take away the inherent power of the Sessions Court to try the case.

21. Therefore, Sec. 228(1)(a) of the Cr. P.C does not take away the jurisdiction of the Court of Session to try the case by itself. Moreover, it is well settled that the Court of Session or the Special Court as the case may be has to take cognizance of the offence on its original jurisdiction without committal by the competent Magistrate's Court, in cases coming within the ambit of N.D.P.S Act and other special statutes. Therefore, by invoking the powers conferred under Sec. 407 of the Cr. P.C this Court has got power to transfer the case pending before the C.J.M to the court of Session for trial and disposal in accordance with law.

22. The reference is answered as above and C.C 131/93 pending before the C.J.M's Court, Thodupuzha is transferred to the Court of Session Thodupuzha for trial and disposal in accordance with law.