Criminal Appeal (SJ) No.379 of 2008

Against the judgment of conviction and order of sentence dated 24.01.2008 and 06.02.2008 passed by Additional Sessions Judge, Fast Track Court No.II, West Champaran, Bettiah in Trial No.15 of 2006 arising out of Official Complaint No.02 of 2006.

SHEO KUMAR SAHNI----------------Appellant Versus

STATE OF BIHAR---------------Respondent ----

For the appellant:- Sri S.Kr. Thakur, Advocate For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T

THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. On bare perusal of the judgment which is being impugned herein what appears is that the same was rendered by an officer who was officiating as Additional Sessions Judge-cum- Presiding Officer of Fast Track Court No.II, Bettiah.

2. If one could peruse the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act; specially Section 36A thereof, the offences which are triable by imprisonment for a term of more than three years shall be triable by the Special Courts to be constituted by the State Government under Section 36 of the Act. It is further explained by the provisions of Section 36-C of the Act 2

that the Special Court shall be the court of Sessions and the person conducting prosecution before the Special Court shall be deemed to be a Public Prosecutor. As regards the qualification of a Judge for being appointed as a Judge of the Special Court the relevant provision is Section 36-C. Sub-Section 3 of that particular provision indicates 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 Sessions Judge. It is not necessary to point out that an officer who presides over a Fast Track Court is not the Additional Sessions Judge; he has merely been directed to officiate as such, because an Additional Sessions Judge has duly to be appointed in the light of Article 233 of the Constitution of India.

3. On perusal of the lower court records what I find is that the proceeding from the stage of framing of charges up to recording the statement of the appellant was carried out by an Additional Sessions Judge but the judgment was delivered by an officiating Additional Sessions Judge-cum-Presiding Officer 3

of the Fast Track Court-II, Bettiah which vitiates the very judgment itself.

4. In the light of the above, the judgment by which the appellant was convicted is hereby set aside on account of lack of jurisdiction and the matter is remanded back to the District & Sessions Judge, Bettiah for re- trial who is directed either himself to deliver the judgment after hearing the parties or to make over the case to any Additional District & Sessions Judge duly appointed in that capacity for re-trial from the stage of hearing arguments and delivering judgments. The judgment of conviction and sentence is hereby set aside. The appeal is allowed in the above light.

( Dharnidhar Jha,J.)

Patna High Court,

Dated, the 29th of

April, 2011, Brajesh

Kumar/NAFR