P.P. Naolekar, C.J.
1. That the petitioner-appellant was the Subedar in the Armed Force on 2.11.93. While the appellant was proceeding to join the 4 Rajput Regiment at Jammu, he was detained by the Railway Protection Force's Inspector at Dimapur for alleged possession of ganja. Later on, he was handed over to the army. On 24.10.96, the appellant was charged under Section 69 of the Army Act, 1950 for committing the civil offence i.e., possessing ganja in contravention to Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also under Section 39(a) of the Army Act, 1950 for absenting himself from his unit without leave from 16.9.90 to 2.11.93. After undertaking necessary procedural requirements, the appellant was tried by the General Court Martial and was punished for 4 years rigorous imprisonment and dismissed from service having been found guilty of the charge of unlawful possession of ganja in violation of Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant was absolved from the charges of absenting himself without leave from his unit. The punishment imposed by the General Court Martial was challenged in the High Court by filing a writ petition and the same was dismissed by the learned Single Judge. Aggrieved by the same, the present appeal is filed.
2. We have heard Mr. A Sharma, learned counsel appearing on behalf of the appellant and Mr. C Choudhury, learned Central Government standing counsel for the respondents.
3. The only submission of the learned counsel for the appellant is that since the appellant being tried under the Narcotic Drugs and Psychotropic Substances Act, 1985, the Trial could not have been by the General Court Martial under the Army Act, 1950 and it could have been by a special Court constituted under the Narcotic Drugs and Psychotropic Substances Act, 1985 by virtue of Section 36A of the Narcotic. Drugs and Psychotropic Substances Act, 1985. Learned counsel has taken us through the provisions of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The relevant part of the Section 36A is quoted below :-
'36A. Offences triable by Special Courts. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -
(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offences 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.'
4. Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides for constitution of the Special Courts, the Government may for the purpose of providing the speedy trial of the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, by notification in the Official Gazette, may constitute the Special Courts, as may be necessary for the area(s) and may also specify the area in which the jurisdiction shall be exercised by the Special Courts. The relevant portion of Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is quoted below :
'36. Constitution of Special Courts. - (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specification in the notification.'
5. By virtue of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985, all offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 are triable only by the Special Court constituted for the area in which the offence has been committed. Thus, as per the learned counsel, the offence having been committed and charged under the Narcotic Drugs and Psychotropic Substances Act, 1985, it should have been tried by a Special Court constituted for the purposes under Section 36 read with Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 and, therefore, the trial of the offence of the appellant by General Court Martial was without jurisdiction and authority of law.
6. Section 69 of the Army Act, 1950 lays down that any person, i.e., any army personnel, subject of this Act, who at any place in or beyond India, commits a civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by the General Court Martial. Section 69 of the Army Act, 1950 reads as follows:-
'69. Civil offences. - Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be punishable as follows, that is to say -
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned ; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.'
7. Section 3(ii) of the Army Act, 1950 defines civil offences, according to the definition civil offence means an offence triable by a criminal court. Section 3(viii) of the Army Act, 1950 defines criminal court to mean a court of ordinary criminal justice in any part of India. Therefore any offences triable by any court of ordinary criminal justice will be a civil offence for the purpose of the Army Act, 1950. By virtue of Section 69 any person, subject to Army Act, 1950, that is to whom the Act applies commits any civil offence at any place in or beyond India, shall be deemed to be guilty of an offence against the Army Act, 1950 and shall be tried by court martial except the civil offence mentioned under Section 70 of the Act. In other words, the criminal offences triable by the court of ordinary criminal justice is committed by the member of armed forces that, offences shall be deemed to be an offence committed under the Army Act, 1950 and shall be tried by the Court Martial. Offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is an offence triable by court of ordinary criminal justice and, therefore, would be deemed to be an offence under the Army Act, 1950 and shall be tried by a court martial. Offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 if alleged to be committed by the member of armed forces, it shall become the offence under the Army Act, 1950 and shall be triable by General Court Martial. The moment offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 is committed by member of armed force and he is tried under Section 69 of Army Act, 1950, the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 relating to offence for which the army personnel is tried would be incorporated in the Army Act, 1950. Section 69 is a legislative device by which all civil offences are being brought for trial before the General Court Martial if it is committed by the member of the armed force and with it incorporation of the relevant provisions of particular Act, for which person is tried in General Court Martial in the Army Act, 1950. For the purpose of trial provisions of that Act are incorporated in the Army Act, 1950 and becomes part and parcel of Army Act as if they had been bodily transported into it.
8. In the matter of Union of India v. L. O. Bhupen Singh (2002) 9 SCC 73, the court held that when the trial under Section 69 of the Army Act, 1950 is held for offence punishable under the provisions of another Act, being a civil offence under the Army Act, 1950 that Act in its entirety would become operative, with its procedural safeguard, if any provided under that Act. Although the court was not considering the question of jurisdiction of court martial court under the Army Act, 1950 or the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985, but the decision clearly lays that any civil offence under the Army Act can be tried by General Court Martial court by virtue if Section 69 of the Army Act, 1950 and entire Narcotic Drugs and Psychotropic Substances Act, 1985 becomes operative and would be applicable for the purpose of trial under Section 69 of the Army Act, 1950.
9. Apart from this, the Army Act, 1950 has an application to the specific individuals, who are army personnel, whereas, Narcotic Drugs and Psychotropic Substances Act, 1985 has an application to all persons. In that sense, the Army Act, 1950 is a Special Act for the army personnel, whereas the Narcotic Drugs and Psychotropic Substances Act, 1985 is a general Act having application for all citizens. That being the case, the Army Act, 1950 will prevail over the Narcotic Drugs and Psychotropic Substances Act, 1985 and the trial conducted by the General Court Martial for the offence committed by the army personnel, i.e., the appellant is in accordance with law.
10. The appeal is dismissed. However, there shall be no order as to costs.