( 1 ) THIS acquittal appeal is directed against judgment and order dated September 24, 1986 passed by the learned Judicial Magistrate, First Class, khambhat, in Criminal Case No. 1322 of 1986, acquitting the respondents-accused for the offences punishable under Secs. 65 (a) (e) (g) and 66 (1) (b) and 81 of the bombay Prohibition Act, 1949 and for the offence punishable under Sec. 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "ndps Act" ).

( 2 ) BY the charge at Exh. 6, it is alleged that at about 5-30 p. m. on January 21, 1986, the accused persons possessed Ganja weighing 210 kilograms and Charas weighing 87 grams, totally worth Rs. 1,68,206. 00, without any pass or permit and in contravention of the provisions of the Bombay Prohibition Act and NDPS Act at their house, situated at Vaghriwad, Saifibaug in Khambhat and thereby committed the aforesaid offences.

( 3 ) MR. K. P. Raval, learned Addl. Public Prosecutor, appearing for the appellant- state, raised an important question of law relating to jurisdiction of the learned magistrate in trying the offence under the NDPS Act. He submitted that the learned Magistrate failed to appreciate that the respondents were tried for the offence punishable under Sec. 20 (b) (i) of the NDPS Act and the said case is triable only by the learned Sessions Judge and that the learned Magistrate had no jurisdiction to try the case and the order of acquittal is not only erroneous but illegal and void ab initio. There is substance in this submission of Mr. Raval and therefore, instead of dealing with and disposing of the case on merits, the question as to jurisdiction of the Court of learned JMFC in trying the offence under NDPS Act is examined.

( 4 ) SECTION 36 of the NDPS Act provides for constitution of Special Courts. Section 36 contemplates that 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 areas as may be specified in the notification. Sub-sec. (2) of Sec. 36 provides that a Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Sub-sec. (3) of said Sec. 36 provides that a person shall not be qualified for appointment as a Judge of the special Court unless he is, immediately before such appointment, a Sessions Judge, or an Additional Sessions Judge. Section 36a, which came to be inserted by Sec. 11 of the NDPS (Amendment) Act No. 2 of 1989, provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), - (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence 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. Clause (b) of sub-sec. (1) of Sec. 36a further provides where a person accused or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-sec. (2) or sub-sec. (2a) of sec. 167 of the Code of Criminal Procedure, 1973 (II of 1974), such Magistrate may authorise the detention of such person in custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

( 5 ) IT is true that when the respondents-accused were tried for the offences punishable under Sec. 20 (b) (i) of the NDPS Act, the aforesaid Sec. 36a was not on the statute book, as it came to be inserted in the year 1989. Section 36 of the unamended NDPS Act, as it was applicable to the present case, provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), any offence punishable under Secs. 26, 27 and 32 of this Act ma