1. The state has challenged the judgment and order of acquittal of the respondents for the charge under Section 8 (c) read with Section 20 (b) of NDPS Act, 1985 (hereinafter referred to as ‘the Act for short) on a trial held by JMFC, Mangalore.

2. The facts relevant for the purpose of this appeal are as under:

On 16.07.2004 at about 10.30 a.m., the police received a credible information that few persons were in illegal possession of Ganja and therefore they proceeded to Kulai Gudde alongwith the officials, attesting witness and the gazette officer and on search found 145 grams of Ganja with the first respondent. The search of the accused was in the presence of Gazetted Officer and mahazar Ex.P1.was drawn. They registered a complaint and on apprehending the accused, first information report was sent to Magistrate and the samples of Mos.1 to 20 were sent for chemical examination to PW7 who submitted a report Ex.P5 and after recording the statement of the witness filed chargesheet against the accused (respondents) for the aforesaid charges.

3. During the trial, prosecution examined Pws.1 to 7 and got marked documents Exs.P1 to P5 and Mos.1 to 23. Statement of the accused was recorded under Section 313 Cr.P.C. They took the defence of total denial and they got marked Ex.D1-a portion of FSL report. The Trial court heard the respective counsel and on appreciation of the material on record, acquitted the accused. Aggrieved by the acquittal, the present appeal has been filed.

4. I have heard Sri. Bhavani Singh, learned State Public Prosecutor and Sri. Sandesh shetty, learned Counsel for the respondents.

5. It is the submission of learned State Public Prosecutor that the learned Magistrate had no jurisdiction to try the offender and it is the Special Judge who has to try such cases under Section 36(A) of NDPS Act, therefore, he claims that the matter has to be remitted back to the Special Judge. It is also his submission that PWs.1 and 3 the police constable and the PSI have supported the case of prosecution and there was no reason for the learned Magistrate to reject their evidence and grant an order of acquittal.

6. Sri. Sandesh Shetty, learned counsel for the respondents submits that as the quantity alleged to have been seized from the respondents is less than 1000 grams, the Magistrate was justified in conducting the trial against the respondents. He submits that the independent witness-PW2 and gazetted officer-PW4 have turned hostile to the prosecution, therefore, he contends that the Trial court was justified in granting an order of acquittal.

7. As could be seen from the table, the notification specifying the small quantity and commercial quantity of the Narcotic drugs at SI.NO.55 relates to Ganja and the small quantity (in grams) is mentioned as 1000. As the prosecution case is that only 45 grams of Ganja was seized from the person of respondent NO.1 and as it is a small quantity, the Magistrate has jurisdiction to try such offenders. On this aspect of the matter, learned Special Public Prosecutor has invited the attention of this Court to Section 36 (A) of the Act relating to the ‘offences triable by Special Courts’. The relevant portion is extracted hereunder for the sake of convenience:

“36-A. Offences triable by Special Courts:-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constitute for the area in which the offence has been committed or where there has been committed or where there are more special courts than one fore such area, by such one of them as may be specified in this behalf by the Government.

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(Emphasis supplied)

So, as could be seen from the aforesaid provisions, if the offence is punishable with imprisonment for a term of more than three years, it is the Special Court constituted for the area in which the offenc