The court emphasized the legality of the trial process and jurisdiction of the trial court under the Narcotic Drugs and Psychotropic Substances Act.

Second accused is the appellant. Additional Sessions Judge, Kozhikode tried him along with the first accused in S.C.no.145 of 1959 for offences punishable under Ss.17 and 18 of the Narcotic Drugs and Psychotropic Substances Act (the act). First accused was convicted under both counts. Under each count, he was sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs.1,00,000/-with default sentence of rigorous imprisonment for two more years each. Appellant was convicted under S.17 alone and the sentence awarded is rigorous imprisonment for ten years and fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for two more years. First accused submitted to the conviction and sentence.

2. At about 4.20 p.m. on 21-4-1989, near the Kozhikode beach, they were found sharing smoke of goly containing opium using a coconut shell and tubes. First accused was also found possessing 6 gm. of opium in a plastic paper and a plastic container with 81 golies of opium,

3. Detection, search, seizure and registration of case were by PW 5. Investigation was conducted by P W7. P w s.1 to 4 are persons present along with P W 5 when action was taken. PW2is a constable, who was in the police party. P Ws. 1,3 and 4 are independent witnesses. PW 1 attested the scene mahazar and P Ws 2 to 4 attested the scene mahazar. PW 3 turned hostile, but admitted having attested the scene mahazar. Others supported the prosecution case. Ext. PV report of chemical examination showed that the material objects seized from the first accused were opium and the coconut shell and black spherical soft substance used for smoking also contained opium. The uniform evidence of the prosecution witnesses is that when P W 5 and his party reached the scene, both the accused were found sharing smoke of golies containing opium using coconut shell and pipes. The self same coconut shell and pipes, on chemical examination, were found to contain opium.

4. Now we are concerned only with the question whether the appellant was found using prepared opium, which takes in any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and what remained in the shell and pipes was dross or other residue after opium was smoked. Opium is coagulated juice of the opium poppy and any mixture, with or without any natural material of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine. The evidence of the witnesses, coupled with the report of chemical examination. Shows that the appellant was found smoking prepared opium. On the basis of the evidence, his conviction could only stand.

5. Attempt was to contend that the trial is vitiated and hence the case has to be sent back for a de novo trial. Ss.36 and 36-A of the Act taken together shows that offences under the Act are triable only by special courts constituted [or the area and the court can take cognizance without the accused being committed for trial as contemplated in S.193 of the Code of Criminal Procedure (the Code). In this case, charge was laid before the Judicial Second Class Magistrate, who committed the case to the Court of Sessions. That cannot be said to be an illegality vitiating the trial or affecting jurisdiction. The argument cannot, therefore, be accepted.

6. In Kerala, no special court is constituted under S.36. Therefore, under the transitory provisions contained in S.36-D, until a special court is constituted, the offence could be tried by a Court of Sessions. .In this case, after committal, Sessions Judge made over the case to the Assistant Sessions Judge, who framed charge under S.17 and recorded the entire prosecution evidence. Thereafter, Sessions Judge re-called the case and made it over to the Additional Sessions Judge, presumably under the impression that the Assistant Sessions Judge did not have jurisdiction. Additional Sessions Judge found th