The main legal point established is that the trial procedure for offences under the N. D. P. S. Act is determined by the punishment provided for the offence, as per the amended provisions of the Act, and applies to pending cases.

( 1 ) THE petitioner is facing trial in special case No. 157 of 1999, under sections 8/20 N. D. P. S. Act before the Special Judge, N. D. P. S. Act, Varanasi. According to the prosecution case, the applicant was found in possession of 1 Kg. of contraband ganja. The applicant moved an application before the learned Special Judge, N. D. P. S. Act that the case is triable by the Magistrate and therefore, it may be sent back to the Magistrate for summary trial of the applicant in accordance to the provisions of N. D. P. S. Act as amended by Act No. 9 of 2001 which have been enforced w. e. f. 27-09-2001 and Cr. P. C. The application of the petitioner has been rejected by the impugned order dated 11-02-2002. Aggrieved by it, the present petition has been preferred.

( 2 ) I have heard Sri Manish Tiwary, learned counsel for the petitioner and the learned A. G. A. I have also perused the provisions of amending Act No. 9 of 2001 which have been enforced from 27-09-2001.

( 3 ) THE original provisions of the N. D. P. S. Act, 1985 has been substantially amended by the amending Act No. 9 of 2001. Section 36-A of the original Act provided for trial of offences under the Act by the Special Courts. This section has been amended and amended sub-clause 1 (a), which is relevant for the purpose of this petition is extracted below : section 36-A:"notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (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 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. "sub clause (5) of the said section is also relevant and is extracted below:"notwithstanding anything contained in the Code of criminal Procedure, 1973 (2 of 1974), the offences punishable under this act with imprisonment for a term of not more than three years may be tried summarily. "

( 4 ) FROM the perusal of the above provision alongwith section 4 of the Cr. P. C. , it is clear that in case the punishment provided for the offence under the N. D. P. S. Act is more than three years, the offence is triable by Special Court and to that extent the provision of section 36-A N. D. P. S. Act over ride the provisions of the Cr. P. C. The trial for offences under the N. D. P. S. Act which are punishable for imprisonment of three years or less should be a summary trial by the Magistrate under Chapter XXI of the Cr. P. C. For the purpose to further clarify the position of law it is also necessary to refer to section 4 Cr. P. C. , which is as follows: section 4:"trial of offences under the Indian Penal Code and other laws- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. "

( 5 ) THE above clause (2) therefore, show that all the offences should be tried according to the provisions of Cr. P. C. except where there is special provision in any other enactment regarding the trial of any offence. Section 36-A of N. D. P. S. Act only provide for trial by Special Courts for offences punishable under N. D. P. S. Act with imprisonment for a term of more than three years only. Therefore, if an offence is punishable with imprisonment for a term upto three years, it shall have to be tried by the Magistrate in accordance with the provision of section 4 (2) Cr. P. C.

( 6 ) IT will not be out of place to mention that after the enforcement of amending Act