The Assistant Sessions Judge lacks jurisdiction to try offences under the Narcotic Drugs Act, as established by transitional provisions, necessitating trials to be conducted by either Sessions Judges or Additional Sessions Judges.

Judgment :

D. Dash, J.

1. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 10th April, 1991 passed by the learned Assistant Sessions Judge, Jeypore in Sessions Case No.6 of 1991 (S.C. No.231/90 on the file of the learned Sessions Judge, Jeypore) arising out of II(a) CC No.472 of 1990 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jeypore.

The Appellant (accused) thereunder has been convicted for committing the offence under section 20(b)(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for two (2) years and pay fine of Rs.5000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence.

2. FACTS:-

On 21.11.1990, the accused was apprehended by the staff of Excise Department and search, being made in presence of an independent witness, six (6) kgs of ganja was detected from the air-bag, which the accused was then carrying. The Excise Officials, having observed all such formalities, collected samples of 50 grams each from out of the seized ganja and kept those in two tin containers, which were wrapped in paper and then sealed and signed. Signature of the accused as well as witness were taken. The residue, being placed in the air-bag, was also seized whereon the signature of the accused and witness were as also obtained. The accused then, being arrested, was forwarded to the Court along with the seized ganja. Taking orders of the Court, the samples were sent for chemical analysis, which on analysis was confirmed as such. On completion of the investigation, prosecution report was submitted on 30.11.1990.

3. The accused was finally committed to the Court of Sessions at Jeypore for trial for commission of the offence under section 20 (b)(i) of the N.D.P.S. Act. The learned Sessions Judge, Jeypore then transferred the said case to the Court of Assistant Sessions Judge, Jeypore for disposal of the same in accordance with law. The learned Assistant Sessions Judge, Jeypore, receiving the case record, framed the charge against the accused for commission of the offence under section 20(b)(i) of the N.D.P.S. Act and on completion of the Trial, found him guilty for the said offence and he was accordingly, convicted for the said offence and sentenced as afore-stated.

At this stage, it be stated that the case against the Appellant was under the NDPS Act, as it was prior to the coming in to force of the NDPS (Amendment) Act, 2001, which became effective on and from 02.10.2001 and the trial was concluded before the said amended provisions formed part of the statute.

4. The Appeal came to be heard by the learned Single Judge of this Court and during such hearing, it was raised that the Trial, having been conducted by the learned Assistant Sessions Judge, is void ab nitio and solely on that ground, the accused is entitled for an order of acquittal. It was stated that the learned Assistant Sessions Judge had no jurisdiction to try the case involving said offence under NDPS Act, the trial stood vitiated and the judgment of conviction and order of sentence thus cannot be sustained.

4-A. In support of such contention, reliance was placed on two decisions of this Court in cases of Sudha Samana & after him Silovamma & Others -V- State of Orissa; (1994) 7 OCR 117 and Adikanda Nayak -V- State of Orissa ; (1995) 8 OCR 449 .

5. Learned Single Judge, while addressing the contention, referred to the provisions contained in section 36-D of the N.D.P.S. Act and on going through the Full Bench decision o