JUDGMENT
K.C. Sharma, J.
1. Through the petition, the petitioners seek to quash the order dated 5.4.2005 passed by the Judicial Magistrate No. 5, North, Kota, whereby the learned Magistrate has taken cognizance of the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act hereinafter to be referred to as the “NDPS ACT”.
2. Learned Counsel for the petitioners strenuously contended that 37 Kgs. Of Poppy Straw was alleged to be recovered from their possession and a case for offence under Section 8/15B of the NDPS Act was registered against them. Referring the provisions of Section 36A of the NDPS Act, learned Counsel argued that since the quantity of poppy straw recovered from the possession of the petitioner was lesser than the commercial quantity but greater small quantity and the punishment provided for offence under Section 8/15B is more than three years, the Judicial Magistrate was not empowered to take cognizance of the offence. He submitted that the offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Courts.
3. I have given my anxious consideration to the above argument. To decide the controversy, it would be profitable to reference the provisions of Section 36A of the NDPS Act, which read as under:
36-A. Offence triable by Special Courts : 1 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.
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5 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.
4. It is thus clear that the offences under this Act which are punishable with imprisonment for a term of more than 3 years shall be tried by the Special Court and the offence which are punishable with imprisonment for a term of less than 3 years shall be tried by the Magistrate as a summary trial cases.
5. Now the question that emerges for consideration would be as to what offence the accused petitioners have committed and whether the Judicial Magistrate was competent to take cognizance ?
6. As already stated above, 37 Kgs. Of Poppy Straw was recovered from the possession of petitioners. The commercial quantity and the small quantity has been prescribed in the Table appended to the Act. Poppy Straw has been defined at Serial No. 110 of the Table, according to which 1000 grams poppy straw has been stated to be the small quantity and 50 Kgs. Poppy Straw has been defined as commercial quantity. Thus, undisputedly the quantity of poppy straw recovered from the possession of the petitioners is greater than small quantity and lesser than the commercial quantity. In this view of the matter, since the punishment provided under Clause b of Section 15 of the NDPS Act for contravention involving quantity lesser than commercial quantity but greater than small quantity may extend to ten years and with fine which may extend to one lakh rupees, therefore, the present one is a case which is exclusively triable by the Special Court constituted for the purpose. It is not a summary trial case to be tried by a Magistrate.
7. Clause d of Sub-section 1 of Section 36A provides that a Special Court may, upon perusal of police report of the facts constituting offence under this Act or upon complaint made by an officer of the Central Government or State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. Thus, Clause d emphatically makes it clear that it is only the Special Court where challan has to be filed and that the Special Court constituted for the purpose is competent to take cognizance of the offence punishable under Section 8/15 of the NDPS Act under which the punishment prescribed may extend to a term of ten years.
8. In view of what has been stated above, it must be held that police has wrongly filed challan in the court of learned Magistrate and that Magistrate was not legally competent to take cognizance of the offence under Section 8/15b of the NDPS Act, inasmuch as there is no provision under which the Magistrate can take cognizance of the offence or try the accused, where offence is punishable with imprisonment for more than three years. Hence the cognizance taken by the learned Magistrate deserves to be quashed.
9. Resultantly, this petition succeeds and is hereby allowed. The order dated 5.4.2005 passed by the learned Magistrate taking cognizance of the offence is hereby quashed. The accused petitioners shall be released. However, the petitioners shall give a personal bond for Rs. 10,000/- each with an undertaking to remain at the address given by them in the petition and will appear in the court in which they may be asked to appear in case challan is filed before the proper court.