( 1. ) THE Special Judge (NDPS), Mandla has referred the matter under section 395 (2) of the Code of Criminal Procedure, 1973 (in short the Code)for the decision of the High Court on the following question of law:-If the Special Judge (NDPS) is incompetent to take cognizance of the offences punishable with imprisonment for a term which may extend up to three years under the Narcotic Drugs and psychotropic Substances Act, 1985, then which Court should try these cases ?

( 2. ) THE relevant facts giving rise to the above question of law are:-The Special Judge (NDPS) has been given jurisdiction to try the cases arising out of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). The distribution memos Annexures A and b were issued by the District and Sessions Judge, Mandla for the year 2004 and 2005 and it was directed that all the cases arising out of the Act and connected bail applications shall be registered in the Court of Special Judge (NDPS), mandla. Thereafter, the District and Sessions Judge, Mandla issued another distribution memo Annexure C on 16-1-2006 for the year 2006 by which the special Judge (NDPS) was authorised to register only those cases as per provisions of Section 36-A of the Act, which are punishable with imprisonment for a period of more than three years and this distribution memo further directs to register connected bail petitions.

( 3. ) AS per distribution memo Annexure D issued by the Chief Judicial magistrate, Mandla on 10-1-2006, the Court of Chief Judicial Magistrate, mandla was authorised to dispose of cases arising out of the Act where the punishment of imprisonment for a period of up to three years has been provided.

( 4. ) THE Special Judge has further submitted that the cognizance was taken in all type of cases arising out of the Act and these cases were disposed of by his predecessors and by him irrespective of the fact that in some cases, the cognizance was taken under Section 8 read with Section 20 (b) (ii) (A) of the act, where the punishment for six months imprisonment has been provided. It is further submitted that the accused preferred the appeals against the judgments passed by the Special Judges in such type of cases and appeals were also dismissed by the High Court and for instance, the Special Judge has also referred the judgment Annexure E passed in Criminal Appeal No. 135/05 by the High court.

( 5. ) IT is also submitted by Special Judge that at the time of annual inspection, the District and Sessions Judge found that the cognizance has been taken illegally by the Special Judge in Special Case No. 4/05, M. P. State Vs. Gulab Singh, because it was the case under Section 8 read with Section 20 (b) (ii) (A) of the Act. According to Special Judge, the cognizance was taken in such type of cases on the basis of distribution memos issued by the District and sessions Judge from time to time. As per provisions of the Act, the Court of special Judge is the Court of original jurisdiction. Since, the cognizance was taken by the Special Judge as per the provisions of distribution memos and the appeals were also dismissed by the High Court and the conviction and sentences were affirmed, therefore, the note of the District and Sessions Judge that the special Judge had taken cognizance illegally, was not proper. The Special Judge has also referred following five cases in his reference which are pending under section 20 (b) (ii) (A) of the Act in his Court and it is also informed that these cases are at the stage of evidence:- (a) Special Case No. 4/05, M. P. State Vs. Gulab Singh (b) Special Case No. 9/05, M. P. State Vs. Madanlal (c) Special Case No. 10/05, M. P. State Vs. Mahulal (d) Special Case No. 14/05, M. P. State Vs. Kesudas (e) Special Case No. 16/05, M. P. State Vs. Pammi alias Pramod.

( 6. ) BEFORE coming to the legal point raised in this reference, it would be proper to point out the defect in this reference. The Special Judge, while referri