TMI Blog2014 (5) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Judge was not creating competence in him to try the offence. It has always to be considered in light of the fact that no other trial procedure could be followed except the set of provisions contained in Chapter-XVIII in the light of Section 36C of the NDPS Act while trying an accused or an offence. As soon as the learned Special Judge-cum-Sessions Judge, Muzaffarpur was found having not followed the provision of Chapter-XVIII Cr.P.C., the trial was very much in inherent lack of jurisdiction and, as such, the acquittal could not be supported and it could not accrue any benefit of such acquittal to any accused like the present petitioner. Present petition lacks merit and the same is dismissed. - Criminal Miscellaneous No. 39426 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of cases instituted otherwise than on police report, that is to say, on a complaint petition. The evidence of P.Ws.1 to 9 under Section 244 Cr.P.C. and their further cross examination under Section 246 Cr.P.C. was recorded from 20.02.2008 to 27.05.2009 and the evidence of P.Ws.10 was recorded properly by following the procedures of Chapter XVIII, that is, the procedure set down for trial before a Court of Sessions. The judgment was delivered by the learned Sessions Judge on 25.01.2010 and the petitioner Arvind Kumar was acquitted of the charges under Sections 20(b)(ii) and 29 of the NDPS Act while co-accused Mahendra Baitha was held guilty of committing an offence under Section 20(b)(ii)(c) of the NDPS Act. The convicted accused Mahendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it should be an examination of issue or a charge by taking evidence by a competent court by following the procedures set down under law in that behalf. It may be possible that a court may be competent to try the offence on account of its jurisdiction but if it follows the wrong procedure then, in my opinion, it could not be a trial as per Section 300 Cr.P.C. as the trial is definitely not as per law and procedure. The jurisdiction of the Court may also be a relevant factor as regards the law which empowers it to try the offence. To elucidate, a Special Judge under the NDPS Act is a Court of Sessions and as per Section 36C, the Code of Criminal Procedure is applicable to the proceeding before a Special Court so far as it is not in derogation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with those provisions, else not at all. I have already noted that the Special Court under the NDPS Act is the Court of Sessions and as per Section 36C it has to conduct its proceeding as per the provisions of Code of Criminal Procedure. The NDPS Act does not contain any provision directing that the Special Court may follow any other procedure than those contained in Chapter XVIII Cr.P.C. and in absence of such legislative direction it has always to be noted that the Special Court has to try an offence only under Chapter XVIII of the Cr.P.C. 7. If a Court is following a wrong procedure, then it is not trying the offence as per its jurisdiction because jurisdiction to try an offence, in my opinion, is always dependent upon fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een committed by him or an offence with which he might have been charged under S. 236 or for which he might have been convicted under S. 237 of the Code. The competence of a Court depends not merely on the circumstances that under some law it is entitled to try a case falling in the particular category in which the offence alleged to have been committed by the accused falls. In addition to this taking cognizance of the offence is also material in this regard. 9. The other judgments cited by the learned counsel appearing for the petitioner, like, AIR 1960 Andhra Pradesh 1 Thadi Narayana v. The State of Andhra Pradesh and AIR 2007 SC 2397 Balbir Singh v. State of Delhi did not appear applicable for the reason that there was a co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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