ORDER
S.K. Dubey, J.
1. This order shall also govern disposal of Criminal Revisions Nos. 192, 1991, Union of India v. Hargovind; 193/1991, Union of India v. Radhey Shyam and 194 1991, Union of India v. Mohanlal, as the common central question involved in all the four petitions is whether in the absence of constitution and establishment of a Special Court under Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the 'Act'), the Sessions Court under Section 36D, which deals with transitional provisions until a Special Court is constituted Under Section 36, can take cognizance and try the offences under Sections 8/18 of the Act, committed after enforcement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 without the case being committed to the Court of Session.
2. The Act was amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (Act 2 of 1989) (for short, the 'Amending Act'), which came into force from 29-5-1989, by which certain sections in the Act have been substituted. In all the four matters, the offences are said to have been committed after the enforcement of the Amending Act. Therefore, the Union of India, through the Narcotics Commissioner presented the complaint before the Sessions Judge, Guna, as the Government did not constitute and establish Special Court in accordance with Section 36 of the Act. The learned Sessions Judge placing reliance on a decision of this Court in Rameshchandra v. Union of India, 1991 MPLJ 271, by the impugned order sent the case to the Magistrate concerned to conduct inquiry contemplated Under Section 202(2) of the Code of Criminal Procedure, 1973 (for short, the 'Code') and to commit the case to the Court of Session.
3. Shri N. P. Mittal, counsel for the Department; Shri D. R. Sharma, counsel for non-petitioner in Revision No. 191/1991; and Shri Rajiv Gupta and Shri Rakesh Saxena, amicus curiae, were heard.
4. At the outset, I may state here only that Rameshchandra's case (supra) was a case wherein the offence was committed prior to the enforcement of the Amending Act. In that context it was observed by this Court in para 9 while considering the transitional provision contained in Section 36D(1), that there is nothing therein regarding offences committed prior to 29-5-1989. Therefore, this Court took the view that for the offences committed prior to 29-5-1989, the Sessions Court cannot take the cognizance and proceed with the trial without the case being committed to it by the Magistrate after inquiry.
5. A look to the various provisions of the Act clearly gives an indication as to the procedure to be adopted in the trial of offenders under the Act. The Act being a special law, various provisions incorporated in the Act regulating the procedure in the matter of inquiry, trial, remand, etc. will be applicable to the exclusion of the provisions of the Code.
6. The question came up for consideration before a Division Bench of the Kerala High Court in the matter : State Circle Inspector of Excise, Cannur, 1992 Cri LJ 570. The Division Bench after considering various provisions of the Amending Act and authoritative pronouncement on the term 'cognizance' by the Supreme Court in Ajit Kumar v. State of West Bengal, AIR 1963 SC 765 : 1963 (1) Cri LJ 797 and R. R. Chari v. State of U.P., AIR 1951 SC 207 : 1951 (52) Cri LJ 775, observed in para 7 thus :
In Section 36A(1)(d) it is specifically provided that a special court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a. State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. So, there cannot be any doubt that the special Court is empowered to take cognizance of the offence under the Act without there being a committal proceedings.
7. In para 8 the Division Bench considered the scope of transitional provisions for exercising powers by a Court of Session in respect of trial of the offences under the Act till the establishment and constitution of Special Courts Under Section 36 for purposes of speedy trial of offences under the Act, and observed in para 8 thus:
Section 36D is a transitional provision and it mandates that until a Special Court constituted under Section 36 any offence committed under the Act shall be tried by a Court of Session. Power under Section 36D has been given notwithstanding anything contained in the Code. It may also be noticed that Section 4(2) of the Code specifically states that all offences under any law other than Indian Penal Code shall be investigated, enquired 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. It is important to note that the purpose and object of the enactment of the Act is to have a speedy trial of all offences. That is why the Special Courts are allowed to take cognizance of the offence, without there being a committal proceedings. So, the Court of Session empowered to try the case during the transitional period shall be deemed to be a Special Court having power under Section 36A(1)(d) of the Act to take cognizance of the police report or upon a complaint made by an officer of the Central or State Government authorised in this behalf. Section 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the Act.
8. A learned Judge of the Madras High Court in case of P.R. Muthu v. State, 1992 (1) Crimes 1038, after extracting Section 36A observed in para 34 that 'the section starts with a non obstante clause, thereby indicating that the procedure contemplated in the Code of Criminal Procedure for the trial of offences under the Act is not at all applicable and the procedure contemplated by the very Section for the trial of the cases under the Act alone is applicable. Immediately following the non obstante clause, Clauses (a) and (b) of Sub-section (1) follows. Clause (a) of Sub-section (1) mandates the trial under the Act only by a Special Court constituted for the area and if more Courts are constituted for one area, then by any one of such Courts, as may be specified in this behalf by the State Government.
9. In the said case also the Special Court was not constituted and established; therefore, the learned Judge after considering various provisions of the Code, in particular Section 209, which prescribes commitment of a case to Court of Session, when offence is triable exclusively by it, whether the case is instituted on a police report or otherwise, Section 193 which prescribes as to when the Court of Session can take cognizance of offences, and Section 36D, observed in para 43 that Section 36D points out in no uncertain terms that the trial of offenders under the Act by the Court of Session is to proceed, notwithstanding anything contained in the Code. The non obstante clause had been suffixed to the said section for the obvious reason that the trial before the Court of Session under the Code cannot proceed without there being a commitment. In order to indicate that such a procedure is not contemplated for trial of offenders under the Act, in the Court of Session, the non obstante clause had been specifically incorporated at the fag end of the said section.
10. The Court after considering Section 36B and Section 36C which give enough indication that the Court of Session is put on par, for all practical purposes, with the Special Court constituted under the Act, and adverting to Section 36A(1)(d) in para 47 said :.the Special Court had been given the power to take cognizance of offences under the Act without the accused being committed to it for trial. Thus, in the nature of the construction and construing of the provisions contained under the Code as well as under the Act, it goes without saying that for all practical purposes, a Court of Session is put on par with the Special Court and once this conclusion is reached, even in respect of offences committed under the provisions of the Act, there is no need for any commitment for the Court of Session to take cognizance of the offence. To put it otherwise, on a final report being filed before a Court of Session under Section 173(2) of the Code, it can very well take cognizance of the offence, as the Court of original jurisdiction.
11. Recently, a learned Judge of this Court (A. G. Qureshi, J.) in case of Asolam Khan v. State of M.P., 1992 (1) MPWN 149, while considering a case for the purposes of grant of bail and power of Magistrate to authorise detention of accused Under Section 167(2) of the Code, considered the scope of Sections 36A(a)(d), 36B, 36C and 36D and observed that it is pertinent to note that Section 36A(1)(d) provides that a formal committal order to the Court of Session is not necessary in the cases governed by the Act. The sub-section empowers the Special Court to take cognizance of the offence on a complaint made by the officer of the Central Government or the State Government, who may authorise to make such complaints and as such for taking cognizance by the Special Court a formal committal order is not a condition precedent. According to Section 36D the Court of Session will be a Special Court till the Special Courts are constituted, and there is another provision contained in Sub-section (2) of Section 36D which says that once the cognizance is taken by the Court of Session, even after the constitution of the Special Court, the case shall be tried by the Court of Session as a Special Court.
12. From the above discussion, in my opinion, the Sessions Judge was not right in sending the case to the Court of Judicial Magistrate for holding an inquiry for the purpose of committal, as it is clear that till the establishment and constitution of the Special Court for the area(s) which may be specified in the notification for the trial of offendes under the Act, a Court of Session, which is put at par by virtue of the transitional provisions contained in Section 36D with the Special Court, is empowered to proceed with the case in view of Section 36-A(1)(d) of the Act, without the accused being committed to it for trial.
13. In the result, the revisions are allowed. The order impugned is set aside and the cases are sent back to the Court of Session, Guna, to deal with in accordance with law.
14. Before parting with the cases, I must place on record my appreciation to Shri Rajiv Gupta and Shri Rakesh Saxena, Advocates, appearing as amicus curiae for their valuable assistance rendered at the time of hearing.