An Additional Sessions Judge is part of the Court of Session and has jurisdiction to try offences under the Narcotic Drugs and Psychotropic Substance Act, 1985.

1. Is a case for the offence(s) punishable under the Narcotic Drugs and Psychotropic Substance Act , 1985, (hereinafter referred to as 'the Act') triable by an Additional Sessions Judge?
This is the question that has to be addressed in this reference, made by the Sessions Judge, at Jammu.

2. On a complaint for the offences punishable under S.8, S.21, S.23 and S.25 of the Act having been filed, it got committed for trial to the Court of Session at Jammu. The Sessions Judge assigned / transferred the case for trial to the Additional Sessions Judge. Formal charge - sheets for the offences punishable under S.8 read with S.21, S.23 and S.25 of the Act were drawn up against the available accused persons (one of the accused having been declared absconder). The accused pleaded not guilty to the charges whereat the trial commenced.

3. It was on 30-1-1996, when the case had reached / ripened for final hearing that the Additional Sessions Judge submitted the record to the Sessions Judge for direction on the assumption that the case was exclusively triable under S.36 - D of the Act in the Court of Session, so its assignment / transfer being bad in law had vitiated the proceedings. The Sessions Judge pondered over the matter till 28-5-1998 and then made this reference recommending that the proceedings taken in the case before the Additional Sessions Judge be quashed as having been without jurisdiction and directions for de novo trial, in the Court of Sessions, be passed.

4. Counsel appearing on either side in this reference have come to support it but I am constrained to say that it is so because of the misconception about the legal provisions applicable.

5. S.36 read with S.36 - D of the Act appears to have created a bit of confusion, so reference to those provisions is necessary.

6. S.36 provides that the Government may, for the purpose of providing speedy trial of the offences under the Act, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification in the official gazette. The Special Court has to consist of a single Judge who has to be appointed by the Government with the concurrence of the Chief Justice of the High Court. Sub-section (3) of S.36 provides that a person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Session Judge.

7. S.36 - A mandates that notwithstanding anything contained in the Code of Criminal Procedure , all offences under the Act shall be triable only by the Special Court constituted under S.36 (supra). Sub-section (1)(d) of S.36 - A of the Act empowers the Special Court to take cognizance of the offence without the accused being committed to face trial.

8. We are not at this stage concerned with the rest of the provisions pertaining to the powers and jurisdiction of the Special Court, it is so because no Special Court has admittedly been constituted so far in this State for trial of offences under the Act. It is thus that resort has to be made to S.36 - D of the Act which runs as follows :
"36 - D. Transitional Provisions. - (1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted under S.36, shall, notwithstanding anything contained in the Code of Criminal Procedure , 1973 (2 of 1974), be tried by a Court of Session :
Provided that offences punishable under S.26, S.27 and S.32