- (1.) The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985, hereinafter alluded to as "the Act", was enacted inter alia to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. The enactment received the President's assent on 16/9/1985. The dictionary of the Act is to be found in Section 2 thereof. Section 2 (xxix) says that words and expressions used in the Act and not defined but defined in the Code of Criminal Procedure, 1973, hereinafter called "the Code", shall have the meanings assigned to them in the Code. The Act is divided into six Ch. comprising 83 sections. Since in the instant case we are concerned with only a few provisions we need not examine the scheme of the Act. We had an occasion to examine the scheme of the Act in some detail in Raj Kumar Karwal v. Union of India. Ch. IV defines the offences and prescribes stringent punishments, with minimum punishments and fines for them. For certain offences the punishment prescribed can extend to rigorous imprisonment for 20 years and a fine of Rupees two lakhs, with a minimum rigorous imprisonment of 10 years and a fine of Rupees one lakh. By Section 37 offences punishable under the Act are made cognizable and non-bailable. Where the offender is accused of an offence punishable with imprisonment of 5 years or more, the section provides that he shall not be released on bail or on his own bond unless (i) the Public Prosecutor has had an opportunity to oppose the bail and (ii) if bail is opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty and is not likely to indulge in the commission of similar offences.
(2.) By Amending Act No. 2 of 1989, styled as the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, far-reaching changes came to be made in the Act. This Amending Act came into force with effect from 29/5/1989, vide S. O. 379 (E) of even date. By this Amending Act the punishment prescribed under the newly added Section 31-A for certain offences extended to death penalty also. Section 36 came to be replaced by anew provision and S. 36-A to 36-D were inserted for the first time. The substituted Section 36, insofar as relevant for our purpose reads thus : "36.Constitution of Special courts. (1 The government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special courts as may be necessary for such areas as may be specified in the notification. (2 A Special court shall consist of a Single Judge who shall be appointed by the government with the concurrence of the Chief Justice of the High court. "only a Sessions Judge or an Additional Sessions Judge is eligible to be appointed a Special Judge. Under Section 36-A, all offences under the Act 'shall' be triable only by the Special court constituted for the area in which the commission of the offence has taken place. This provision overrides the provisions in the Code. Section 36-B clarifies that appeals and revisions from the orders passed by the Special courts shall lie to the High court as if they were passed by a Sessions court. Section 36-C provides for the application of the provisions of the Code to proceedings before the Special court as if the Special court is a court of Session, unless the Act provides otherwise. We then come to Section 36-D which may be reproduced at this stage. It reads: "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 Section 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, 27 and 32 may be tried summarily. (2 Nothing in Ss. (1 shall be construed to require the transfer to a Special court of any proceedings in relation to an offence taken cognizance of by a court of Session under the said Ss. (1) and the same shall be heard and disposed of by the court of Session. "
(3.) It becomes immediately clear that before the introduction of the present group of provisions by Amending Act No. 2 of 1989, the offences under the Act were triable by the ordinary courts under the Code. However, after the enactment of the Act it was expected that speedy trials and harsh punishments would help prevent and combat abuse of and illicit traffic in narcotic drugs, etc. , and rid the society of drug menace. But it was soon realised that the aim of bringing the culprits to book with dispatch was not achieved. The legislature, therefore, thought that the aim of speedy trials may be achieved if Special courts are constituted to try offences under the Act. This objective is clearly writ large in the text of Section 36 which in no uncertain terms says that the government may constitute Special courts "for the purpose of providing speedy trial of offences under this Act". That is why Section 36-A posits that all offences under the Act shall be triable 'only'by the Special court constituted for the area under Section 36, notwithstanding anything in the Code. Clause (d) of Ss. (1 of Section 36-A empowers the Special court to take cognizance of an offence under the Act upon a police report or upon a complaint made by an authorised officer. Section 36-C extends the provisions of the Code to proceedings before the Special court, save as otherwise provided in the Act, so that where the Act does not make any specific provision to the contrary, the Special court may not be hamstrung and may lean on the provisions in the Code. But then till the establishment of the Special courts, provision had to be made to cover the transitional period to avoid a stalemate situation and hence the need for Section 36-D. The importance of this provision is realised when we take notice of the fact that in many States the constitution of Special courts was delayed by a couple of years or even more.;