Non-compliance with mandatory provisions does not vitiate conviction unless it results in prejudice; procedural safeguards must be observed.

1Appellant in Crl. Appeal No.51 of 1991 who is the accused in Sessions Case No.68 of 1990 of the Assistant Sessions Judge (Principal), Palakkad is the revision petitioner. The learned Judge found him guilty of the offence punishable under S.20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), convicted him and sentenced him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.20,000/-; in default of payment of fine, he was directed to undergo simple imprisonment for a further period of 2 years. He challenged the said conviction and sentence in Crl .Appeal No.51 of 1991 before the Sessions Judge, Palakkad. The said appeal was dismissed.

2. PW-1, Sub Inspector of Police, Palakkad Town North Police Station while on petrol duty on 5-9-1990 at 5.45 P.M. along with police constables, found the accused near the Government Victoria College. On seeing the police party, he retreated which created suspicion and hence PW-1 and others stopped him and questioned him. Thereafter, on examination of his person, they found MO-1 ganja concealed in the fold of his dothi at the waist. MO-1 ganja was weighed and scaled in the presence of witnesses; the petitioner was also having MO-3 currency notes with him. PW-1 prepared Ext. P1 mahazar in the presence of witnesses. He arrested the accused and produced him along with the seized articles before the police station. Crime 388 of 1990 was registered under S.20(b)(i) of the Act. Ext. P2 is the F.I.R.

3. PW-5, Assistant Sub Inspector of the said Police Station conducted the further investigation. He went to the scene and prepared Ext. P3 scene mahazar. He produced the material objects before the court on 6-9-1990 and also submitted a report for sending the MO-1 for chemical examination; Ext. P4 is the certificate issued by the Chemical Analyst. He completed the investigation and laid the charge before the court.

4. Learned counsel for the revision petitioner submitted that there was violation of S.50 and 57 of the Act and, therefore the accused is entitled to an acquittal. Learned Public Prosecutor contended that, this revision itself is not competent and alternatively contended that, there is no violation as alleged and that even if there was any violation since the same has not caused any prejudice or failure of justice, the same cannot be a ground for acquittal of the accused.

5. Admittedly this case was detected and tried at a time when no Special Court as per S.36 of the Act was constituted. S.36-D of the Act, provides for transitional provisions. As per the said Section, until a Special Court is constituted under S.36, such cases shall be tried by a Court of Session.

6. In the decision in Ahamed Koya v. State (1991 (1) KLT 332) it is held that, the Court of Session contemplated under S.36-D of the Act could take in Assistant Sessions Judges also and in such circumstances they are also competent to exercise jurisdiction over the cases made over to them by the Sessions Judge. In this case also, the case was made over to the Assistant Sessions Judge by the Sessions Judge. Thus, there was jurisdiction for the Assistant Sessions Judge who tried the case.

7. The next question for consideration is which is the forum to challenge the said conviction. It was contended by the learned counsel for the revision petitioner that the sentence awarded to the accused by the Assistant Sessions Judge being only two years and fine as per S.374 Cr.P.C., the appeal was properly filed before the Sessions Judge and hence the revision against the said conviction is competent. On the other hand, it was contended by the learned Public Prosecutor that, the only forum for preferring an appeal from a