Procedural irregularities in the trial under the NDPS Act do not invalidate the proceedings unless they result in a failure of justice.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. RULE. Learned APP waives service of notice for and on behalf of the Respondent-State of Gujarat.

2. Pursuant to the order dated 23.04.2024, the necessary report has been placed by the Registry on record with the relevant documents. The same are ordered to be taken on record. Additional documents were also called for by us. We have also perused the same.

3. As recorded in the order dated 23.04.2024, the appellant/applicant – original accused has raised an interesting issue questioning the jurisdiction of the trial Court, which has convicted the appellant-applicant for the offence punishable under the provisions of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, “the NDPS Act”). The learned trial Judge i.e. the 9th Additional District Judge at Rajkot has conducted the trial and thereafter, convicted the appellant - applicant for the afore-noted offence.

4. Learned advocate Mr.Virat Popat, has submitted that the Court of the learned trial Judge, which has conducted the trial and has passed the judgment, is not designated as Special Court under the provisions of Section 36A of the NDPS Act and hence, he had no the jurisdiction to try the offence, which invites more than three years of punishment. Thus, it is urged that the entire trial shall be declared as null and void and it is further urged that the matter may be remanded back for re-trial.

5. In view of such submissions made by the applicant - accused, we have inquired about the true aspects relating to the designation of the Special Court at Rajkot.

6. It is noticed by us from the report as well as documents that by the Notification dated 28.12.2015, the State Government, Legal Department, while exercising the powers conferred under Sub-Section (2) of Section 36 of the NDPS Act, 1985, the learned Judges as mentioned in such notification are appointed as Special Court. The same is incorporated as under : -

SCHEDULE

Sr. No. Place of Special Court Judge of Special Court

(1) (2) (3)

1 District Court, Ahmdabad (Rural), Ahmedabad Second Senior Additional District Judge appointed at the Headquarter

2 Vadodara Second Senior Additional District Judge appointed at the Headquarter

3 Rajkot Second Senior Additional District Judge appointed at the Headquarter

7. Thus, from the aforesaid notification, it is evident that Second Senior Additional District Judge appointed at the Headquarter (at Rajkot) was designated as a Special Court.

8. Vide Notification dated 28.08.2023, the learned Principal District Judge, Rajkot designated Mr. J. I. Patel, 9th Additional District Judge, Rajkot to try the case under the NDPS Act for District Rajkot with effect from 30.08.2023.

9. From the documents which are placed on record, we find that Mr.J. I. Patel, 9th Additional District Judge, Rajkot was not the 2nd Senior Additional District Judge appointed at the Headquarter, as required under the Notification dated 28.12.2015, but it was Mr.S. V. Sharma as on 01.12.2023, whereas Mr. J. I. Patel, was junior to Mr. S. V. Sharma. Thereafter, vide Notification No.B./1761/2023, order dated 03.10.2023, the learned Principal District Judge, Rajkot appointed Mr. B. B. Jadhav, who is posted at 9th Additional District Judge and Additional Sessions Judge as Special Court to try the case under the commission for Protection Child Right Act, 2005 for Rajkot District with effect from 03.10.2023.

10. The present trial has been conducted by the learned Presiding Officer Mr. B. B. Jadhav, and the judgment has been delivered on 08.02.2024, while delivering the said judgment, learned Presiding Officer has addressed himself as a Special Judge, NDPS and 9th Additional Sessions Judge, Rajkot.

11. On an inquiry done by us, it has been noticed that the Presiding Officer Mr.B. B. Jadhav is not the 2nd Senior Additional District Judge appointed at the Headquarter (at Rajkot), but instead Presiding Officer is Mr. D. S. Singh, the learned 4th Additional District Judge, who is the