A Special Court u/s 36A of NDPS Act is deemed to be a Court of Session

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It has been held therein that the non-obstante clause contained at the beginning of Section 36-A of the NDPS Act necessarily indicates that the procedure contemplates in the Cr.P.C. for trial of the offences under the NDPS Act, is not at all applicable and the procedure contemplated by the said Section for trial of the cases under the NDPS Act alone is applicable.

The designated officer under section 53 of NDPS Act, invested with the powers of an officer in charge of a police station, is to forward a police report stating the particulars that are mentioned in section 173(2) CrPC. Because of the special provision contained in section 36A(1) of the NDPS Act, this police report is not forwarded to a Magistrate, but only to a Special Court under section 36A(1)(d). When it states that the designated officer cannot submit a police report under section 36A(1)(d), but would have to submit a ―complaint‖ under section 190 of the CrPC misses the importance of the non obstante clause contained in section 36A(1), which makes it clear that the drill of section 36A is to be followed notwithstanding anything contained in section 2(d) of the CrPC.

It is obvious that section 36A(1)(d) is inconsistent with section 2(d) and section 190 of the CrPC and therefore, any complaint that has to be made can only be made under section 36A(1)(d) to a Special Court, and not to a Magistrate under section

The argument, that the procedure under section 190 has been replaced only in part, the police report and complaint procedure under section 190 not being displaced by section 36A(1)(d), cannot be accepted. Section 36A(1)(d) specifies a scheme which is completely different from that contained in the CrPC. Whereas under section 190 of the CrPC it is the Magistrate who takes cognizance of an offence, under section 36A(1)(d) it is only a Special Court that takes cognizance of an offence under the NDPS Act.

Secondly, the ―complaint‖ referred to in section 36A(1)(d) is not a private complaint that is referred to in section 190(1)(a) of the CrPC, but can only be by an authorised officer.

Thirdly, section 190(1)(c) of the CrPC is conspicuous by its absence in section 36A(1)(d) of the NDPS Act – the Special Court cannot, upon information received from any person other than a police officer, or upon its own knowledge, take cognizance of an offence under the NDPS Act.

Further, a Special Court under section 36A is deemed to be a Court of Session, for the applicability of the CrPC, under section 36C of the NDPS Act. A Court of Session under section 193 of the CrPC cannot take cognizance as a Court of original jurisdiction unless the case has been committed to it by a Magistrate. However, under section 36A(1)(d) of the NDPS Act, a Special Court may take cognizance of an offence under the NDPS Act without the accused being committed to it for Signature Not Verified Digitally Signed trial.

It is obvious, therefore, that in view of section 36A(1)(d), nothing contained in section 190 of the CrPC can be said to apply to a Special Court taking cognizance of an offence under the NDPS Act.

Now coming to the provisions of the Cr.P.C., Chapter-XVIII of it relates to trial before a court of Sessions and provisions have been laid down as to how the trial before a court of Sessions has to be proceeded with. The provision of Chapter- XVIII may indicate that it does not contain any provision for recording of evidence before charge nor there could be any for cross-examination of a witness after framing of the charge. That provision is contained in Chapter-XXI as regards cases instituted otherwise than on police report. This was the fallacy in which the Judge who was trying the case, fell and, thus, carried out a trial under the procedures which were simply not applicable to that particular trial before him. He was a Judge manning the Special Courts and the Special Court was the court of Sessions and the trial had necessary to be proceeded as per the provisions of Chapter-XVIII Cr.P.C.