B.S. Walia, J. - (1.)Learned counsel for the petitioner contends that the learned Sessions Judge, Kathua i.e. designated Court, under Sec. 36-AB of 'the Drugs and Cosmetics Act, 1940 is designated only for the purpose of conducting trial under the provisions of the Act ibid and not for taking cognizance, which jurisdiction vests exclusively with the Chief Judicial Magistrate/Judicial Magistrate under the provisions of Sec. 193 of the Code of Criminal Procedure. Learned counsel further contended that the aforementioned position was clear on bare reading of Sec. 36-AD(1) of the Act ibid, which provides that provisions of the Code of Criminal Procedure are applicable to the proceedings before a Special Court and that for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session. Sections 36AB, 36AD of The Drugs and Cosmetics Act, 1940 and Sec. 193 of the Code of Criminal Procedure read as under:-
36AB. Special Courts.-(1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (1) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.

Explanation.- In this sub-section, High Court means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation.

(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

36AD. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court.-(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:

Provided that the Central Government or the State Government may also appoint, for any case or class or group of cases, a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practise as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly.

193. Cognizance of offence by Courts of Session

(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall taken cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as [the High Court] by general or special order may direct them to try, or, as the Sessions Judges of the division, by general or special order, may make over to them for trial.

(2.)Learned counsel contends that there is no provision under 'the Drugs and Cosmetics Act, 1940 where under the power to take cognizance for offences under the Act has been vested in the designated Court i.e. the Court of Sessions unlike under 'the Narcotic Drugs & Psychotropic Substances Act, 1985. Reference in that context is made to Sec. 36-A(1)(d) of NDPS Act, which reveals that under the provisions of NDPS Act, the Sessions Court also has the competence to take cognizance of the offence.Aforementioned provisions of the NDPS Act is reproduced hereunder:-
36-A(1)(d)- a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.

(3.)Learned counsel for the petitioner also relies upon the decision of the Honourable Supreme Court in case titled 'Gangula Ashok and another Vs. State of Andhra Pradesh' reported in AIR 2000 Supreme Court 740 in support of his submission. Relevant extract of the aforementioned judgment is reproduced hereunder:-
2. Can a special court which is envisaged in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short 'the Act') take cognizance of any offence without the case being committed to that court If it cannot, then appellants cannot raise any grievance at this stage regarding framing of a charge against them as they would get an opportunity for it later.

6. We have to consider whether the Special Judge could take cog-nizance of the offence straightway without the case being committed to him. If the Special Court is a Court of Session the interdict contained in Sec. 193 of the Code of criminal Procedure (for short 'the Code') would stand in the way. It reads thus :

193. Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

8. Sec. 14 of the Act says that for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act . So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word trial is not defined either in the Code or in the Act it is dearly distinguishable from inquiry. The word inquiry is defined in Sec. 2(g) of the Code as. every inquiry, other than trial, conducted under this Code by a magistrate or court . So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as special Court is to ensure speed for such trial. Special Court is defined in the Act as a Court of Session specified as a Special Court in Sec. 14 . [vide Sec. 2(l)(d)].

9. Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for Trial before a Court of Session .

10. Sec. 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if the case has been committed to it by a magistrate , as provided in the Code, Two segments have been indicated in Sec. 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word expressly which is employed in Sec. 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differnetly no Court of Session can take cognizance of any offence directly, without the case being committed to it by a magistrate.

11. Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the Court of session.

16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightway be laid before the Special Court under the Act.

20. The very approach of the Full Bench of the Kerala High Court seems to be that there should be specific indication in the Act that the Special Court gets jurisdiction to try the offence only on a committal order, and in the absence of such specific indication the Special Court must have the right to take cognizance of the offence as though it is a court of original jurisdiction. We have pointed out above that unless there is express provision to the contrary in any other law the interdict contained in Sec. 193 of the Code cannot be circumvented. Hence the reasoning of the Full Bench in Hareendran Vs. Sarada (supra) is apparently fallacious.

21. In fact all the other High Courts which dealt with this question (the decisions of which were cited supra) have dissented from the aforesaid view of the Full Bench of the Kerala High Court, after adverting to the reasons advanced by the Full Bench. A Division Bench of the Andhra Pradesh High Court after referring to the Full bench decision in Hareendran Vs. Sarada (supra) made the following observations in Referring Officer rep. By State of A.P. Vs. Shekar Nair, (1999) 3 ALT 533 = (1999) Crl. L.J 4173 :

We find it difficult to agree with the reasoning of the Kerala High Court in the two decisions referred to above. As already observed by us, in the absence of a particular procedure prescribed by the said Act as regards the mode of taking cognizance, enquiry or trial, the procedure under the Code will have to be applied by reason of Sec. 4(2) of the Code as clarified by the Supreme Court in the case of Directorate of Enforcement (AIR (1994) SC 1775). There is no provision in the Act which excludes the application of Sec. 193, Cr. P.C. The mere fact that no procedure is prescribed or specified under the Special Act does not mean that the Special Act dispenses with the procedure for committal in the Case triable by Court of Sessions and that the Special Court gets original jurisdiction in the matter of initiations, enquiry or trial. There is no good reason why the procedural provisions of Code relating to power and mode of taking cognizance including Sec. 193 should not be applied to the Special Court.

24. It is contextually relevant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offence without the accused being committed to it for trial, (e.g. Sec. 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substances Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act.