- (1.) The petitioner is facing trial in special case No.157 of 1999, under sections 8/20 N.D.P.S.Act before the Special Judge, N.D.P.S. Act, Varanasi. According to the prosecution case, the applicant was found in possession of 1 Kg. of contraband ganja. The applicant moved an application before the learned Special Judge, N.D.P.S.Act that the case is triable by the Magis?trate and therefore, it may be sent back to the Magistrate for summary trial of the applicant in accordance to the provisions of N.D.P.S.Act as amended by Act No.9 of 2001 which have been en?forced w.e.f. 27-09-2001 and Cr.P.C. The application of the petitioner has been rejected by the impugned order dated 11-02-2002. Aggrieved by it, the present petition has been preferred.
(2.) I have heard Sri Manish Tiwary, learned counsel for the petitioner and the learned A.G.A. I have also perused the provisions of amending Act No.9 of 2001 which have been enforced from 27-09-2001.
(3.) The original provisions of the N.D.P.S.Act, 1985 has been substantially amended by the amending Act No.9 of 2001. Section 36-A of the original Act provided for trial of offences under the Act by the Special Courts. This section has been amended and amended sub-clause 1(a), which is relevant for the purpose of this petition is extracted below : Section 36-A: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government." Sub clause (5) of the said section is also relevant and is extracted below: "Notwithstanding anything contained in the Code of criminal Procedure, 1973 (2 of 1974), the offences punishable under this act with imprisonment for a term of not more than three years may be tried summarily." ;