ALOK K.SINGH,J. - (1.) SUPPLEMENTARY affidavit filed today is taken on record.
(2.) HEARD learned Counsel for the pe­titioners, learned A.G.A. and perused the material placed on record. A perusal of the order, dated 30.10.2009 shows that concededly on the basis of the report received from the Foren­sic Laboratory, Mahanagar, Lucknow the quantity of the material in question has been found to be of small quantity i.e. be­low commercial quantity. The trial is pres­ently pending in the Court of Additional Sessions Judge, Court No. 6, Sultanpur where it is said to be fixed for arguments. When the petitioner moved an application in the Court below to transfer this case to the Court of Chief Judicial Magistrate, Sul­tanpur for trial in view of the feet that the alleged recovered material does not fall within the ambit of commercial quantity, it was rejected on the ground that accused Yogendra Mishra alias Yogi is in jail for quite some time and the petitioner of this case is also presently in jail. Learned Court also observed that if on the basis of lesser quantity, comparatively lesser punishment is called for then the same punishment can be given by the Court of Additional Ses­sions Judge also. Therefore, it rejected the application.
(3.) BUT the learned Counsel for the pe­titioner submits and rightly so that if the trial continues in the Court of Additional Sessions Judge and final judgment is also rendered then the petitioner would be de­prived from a valuable right of filing ap­peal in the Court of Sessions Judge itself. In order words since the case of the applicant now talk within the small category (below small quantity) it ought to have been tried By the learned Chief Judicial Magistrate and in that case he would be able to file an appeal in the Court of Sessions Judge itself. But on the other hand, if it is permitted to be tried by the learned Additional Sessions Judge, then he will have to go outside the District to file criminal appeal before the High Court which would require more ex­penses and more time. Learned A.G.A. has nothing to say sub­stantial on this point. In view of the facts and circumstances of the case, I find substance in the submis­sion made on behalf of the petitioner. There does not appear to be any valid rea­son for depriving the petitioner/applicant from the aforesaid valuable right and merely because the case is at the ripe stage he should not be deprived from aforesaid valuable right. ;