# 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…

- **Citation:** Notification no. 1232/VII-Nyaya-2-2004-206/81
- **Court:** Allahabad High Court
- **Decided:** 1990-11-16
- **Case number:** Notification no. 1232/VII-Nyaya-2-2004-206/81
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/clause-5-of-the-said-section-is-also-relevant-and-is-extracted-below-163661
- **Pages:** 5

## Headnote

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." 4.

## Text

399
On the above subject, I am sending herewith a copy of Government Notification
no. 1232/VII-Nyaya-2-2004-206/81, dated August 31,2004, regarding constitution of IV
Senior most court of Additional District & Sessions Judge in each district as Special
court under section 153 of the U.P. Electricity Act-2003 and where such Additional
District and Sessions Judge is not available, the Senior most Additional District &
Sessions Judge of the district as special court under the aforesaid Act.
I am, therefore, to request you kindly to ensure compliance of the aforesaid
Government Notification.
66.
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985
(i)
Constitution of Special Court under Narcotic Drugs and Psychotropic
Substances Act, 1985
C.L. No. 103/Main 'B' dated November 16, 1990
I am directed to request you kindly to furnish the figures of cases pending in your
Judgeship under the aforesaid Act, as on 31.10.1990, along with your proposal for the
Additional District Judge/Additional Sessions Judge to be nominated for the purpose for
trial and disposal of cases, under the aforesaid Act, to the Court, at an early date, so that
the Government may be moved with full facts and figures.
I am to add that with regard to the districts of Agra, AIlahabad, Aligarh, Bareilly,
Faizabad, Ghaziabad, Gorakhpur, Jhansi, Kanpur Nagar, Lucknow, Meerut, Moradabad,
Nainital, Saharanpur and Varanasi, it may also be intimated that at present which Court
has been nominated to deal with such cases in your respective district.
(ii)
Committee for the review of N.D.P.S. Cases
C.L.No. 14 dated : May 20, 1999
I am directed to say that in the light of directions contained in writ petition
No.307of 1993- Supreme Court Legal Aid Committee Vs. Union of India & others, a
committee for the review of N.D.P.S. Cases in the courts of the State of Uttar Pradesh
was constituted by state Government. While Hon'ble Chairman of the Committee was
assessing N.D.P.S. Cases pending in the Subordinate courts, the committee experienced
certain irregularities and difficulties in the course of the meeting. Recommendations
contained in the report of the committee were considered by the court and the court issues
the following guidelines which be followed in the disposal of like cases:-
1. In cases where charge sheet is filed against the accused who were absconding
for a long period and sureties were also not available the court should start
proceedings under section 299 Cr. P.C. and thus to dispose of the cases in the
manner as provided in law.
400
2. Similar is the situations in which accused jumped bail and is absconding.
3. Court should expedite the cases of those persons who have previous Narcotics
history, are resident of other district and are in jail for a long period.
4. In cases where charge sheet is submitted without the report of chemical
examiner, the court before accepting the charge sheet must direct the
Investigating Officer to file the charge sheet along with report of Chemical
Examiner.
5. Where police had challaned persons under Narcotic not having in their
possession ̳Bhang', ̳Bhang' is not Narcotic as define in the Act, court should
dispose such cases according to law.
 It has also come to the notice of the court that list in the district are not being
prepared as per directions. District Judges should see that the lists are prepared as per
directions.
 I am, therefore, to request you kindly to bring the contents of this letter to all the
concerned Judicial Officer for their information and strict compliance.
C. L No: 31 /2006: Dated: 7.8. 2006
While deciding Criminal Misc. Application NO. 1239 of 2002 - Rajesh Singh Vs.
State of U.P. the Hon'ble Court has observed with concern that the provisions as
contained in N.D.P.S. Act and Cr. P.C. are not being followed in true spirit by the
Judicial Officers in the Subordinate Courts. The Hon'ble Court has observed in the matter
quoted herein as below:-
"....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 01:
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."
4.
From the perusal of the above provision along with Section 4 of the Cr.P.C., It is
clear that in case the punishment provided for the offence under the N.D.P.S. Act is more
401
than three years, the offence is triable by Special Court and to that extent the provision of
Section 36-A NDPS Act over rides the provisions of the Cr.P.C. The trial for offences
under the N.D.P.S. Act, which are punishable for imprisonment of three years or less,
should be a summary trial by the Magistrate under Chapter XXI of the Cr .P .C. For the
purpose to further clarify the position of law, it is also necessary to refer to Section 4 Cr
.P .C., which is as follows:-
Section 4
"Trial of offences under the Indian Penal Code and other laws - (1)
All offences under the Indian Penal Code (45 of 1860) shall be investigated,
enquired into, tried, and otherwise dealt with according to the provisions
hereinafter contained.
(2).
All offences under any other law shall be investigated, enquired into, tried,
and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, enquiring into, trying or otherwise dealing with such offences.
5.
The above clause (2) therefore, show that all the offences should be tried
according to the provisions of Cr. P.C. except where there is special provision in any
other enactment regarding the trial of any offences. Section 36-A of N.D.P.S. Act only
provide for trial by Special Courts for offences punishable under N.D.P.S. Act with
imprisonment for a term of more than three years only. Therefore, if an offence is
punishable with imprisonment for a term up to three years, it shall have to be tried by the
Magistrate in accordance with the provision of Section 4 (2) Cr.P.C.
6.
It will not be out of place to mention that after the enforcement of amending Act
No.9 of 2001 this procedure for trial has to be followed for all the offences irrespective of
the date of commission of the offence. It is basic principle of law that amendment in
procedural law will apply to the pending cases also. Not only this there is also specific
provision regarding it in amending Act No.9 of 2001. Section 41 of the Act provides as
follows:-
Section 41: " Application of this Act to pending cases -( 1 ) Notwithstanding
anything contained in sub section (2) of Section 1, all cases pending before the
Courts or under investigation at the commencement of this Act shall be disposed
of in accordance with the provisions of the principal act as amended by this Act
and accordingly, any person found guilty of any offence punishable under the
principal Act, as it stood immediately before such commencement shall be liable
for a punishment which is lesser than the punishment for which he is otherwise
liable at the date of the commission of such offence:
Provided that nothing in this section shall apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no act or omission on the
part of any person shall be punishable as an offence which would not have been
so punishable if this Act has not come into force."
8. Now the next question that arises for decision is as to what is the punishment
provided for the present offence under amended N.D.P.S. Act. It appears that the
punishment for recovery of Narcotic Drugs or Psychotropic Substance has been divided
in 3 categories as mentioned in the table given at the end of the Act. In this table, 2
402
columns No.5 and 6 are material, the first is regarding the small quantity and the other is
regarding commercial quantity. The third category will follow from this table where the
quantity is above small quantity but is less than commercial quantity. The ganja has been
given at live No.55 'of this table, 1000 gm of ganja has been categorized as small quantity
and 20 kg. of gania has been categorized as commercial quantity. Accordingly, to the
third category in respect of recovery of ganja is above 1 kg. and below 20 kg.
In view of the above observations of the Hon'ble Court, I am
directed to send herewith a copy of the judgement passed in the aforesaid Crl. Misc.
Application for your information and to kindly bring the contents of the circular letter as
also judgement to the notice of all the Judicial Officers in the Judgeship for their
guidance.
C. L. No. 36/2006/Admin 'G': Dated: 10.8. 2006
While hearing Criminal Misc. Bail Application No.5108 of 2006-Jagdish Vs.
State of U.P., the Hon'ble Court has observed with concern that the recovered article
under N.D.P.S. Act is not being weighed either by the arresting officer or by the S.H.O.
concerned as also by the Magistrate who grants the first remand to the accused. The
Hon'ble Court has further observed that the learned Sessions Judge who dispose of the
bail application of the applicant even do not care to get the recovered article weighed
while after the amendment of 2003 of N.D.P.S. Act, 1985 the weight of recovered article
goes to the root of the Jurisdiction because only the weight of recovered article
determines the jurisdiction. .
I am, therefore, directed to request you that all the recovered articles under N.D.P
.5. Act as and when are recovered be weighed either by the arresting officer or the S.H.O.
of the Police Station concerned and in case both the authorities fail to discharge their
duty it is incumbent upon the Special Judge/Magistrate who grants first remand to the
accused to get the recovered article weighed.
Now, while enclosing herewith a copy of order passed in Criminal Misc. Bail
Application No.5108 of 2006-Jagdish Vs. State of U.P. aforesaid, I am further to request
you to kindly ensure strict compliance of the directions as contained in the circular letter
by all the Judicial Officers working under your supervision and control in the judgeship
faithfully and punctually.
Compliance of the directions passed by Hon'ble Court in Criminal Jail Appeal No.
6680 of 2006 (In S.T. No. 23 of 2006 arising out of Case Crime No. 567 of 2006 P.S.
Dhampur, District Bijnor.)
C.L. No. 15/2009/Admin. ̳G-II': Dated: April 9, 2009

The Hon'ble Court while deciding the Criminal Jail Appeal No. 6680 of 2006
Lalit alias Kalliya Karak Behadur versus State of U.P. arising out of S.T. No. 23 of 2006
pertaining to Crime No. 567 of 2006 P.S. Dhampur, District Bijnor, reduced the
punishment awarded from 10 years RI to 21⁄2 years and has provided the guidelines for
awarding punishment to the effect that it is fair and justifiable to adjust the sentence in
conformity with the scheme of sentence in the NDPS Act, 1985 and to fix the quantum of
sentence in proportion to the sentence given in scheme of the Act.
403

Therefore, while enclosing a copy of the judgment passed in above mentioned
case, I am directed to request you to kindly adhere to the guidelines as provided above,
while awarding punishment in cases covered under the NDPS Act.

I am further to request you to kindly bring the contents of the Circular Letter to
the knowledge of all the Judicial Officers working under your administrative control for
strict compliance.
Disposal of cases involving petty offences
C.L. No. 23/2010/Admin. E (F.T.C. Cell): Dated 12.08.2010

I have been directed to say on the above subject that the Hon'ble Court has
directed as follows:-
(1)
That the Chief Metropolitan Magistrate and all Addl. Chief Metropolitan
Magistrates/Metropolitan Magistrates/Chief Judicial Magistrates/Addl. Chief Judicial
Magistrates/Judicial Magistrates/Civil Judges (Junior Division) has empowered for
summary trial under Section 260(1)(C) of Cr.P.C. shall issue Special Summons under
Section 206 Cr.P.C. on Form No. 30 of Schedule-II of Cr.P.C., in the following form:-
"Form No. 30
SUMMONS TO A PERSON ACCUSED OF A PETTY OFFENCE

To .............. (Name of the accused) ..............of ............ (address)

WHEREAS your attendance is necessary to answer a charge of a petty offence
........(state shortly the offence charged), you are hereby required to appear in person (or
by pleader) before ..........(Magistrate) of ..........on the .......day of .......20 ......, or if
you desire to plead guilty to the charge without appearing before the Magistrate, to
transmit before the aforesaid date the plea of guilty in writing and the sum of ......rupees
as fine, or if you desire to appear by pleader and to plead guilty through such pleader, to
authorise such pleader in writing to make such a plea of guilty on your behalf and to pay
the fine through such pleader. Herein

this ...........day of ........... 20..........
(Seal of the Court)

(Signature)"

A note shall also be mentioned on the aforesaid Special Summons that if the
accused desires to deposit the amount of fine after pleading guilty, he may deposit the
fine in the Bank. The Special Summons will be enclosed a receipt in three parts with the
mention of particulars of the case, the amount of fine to be deposited and the Account
Number of the Bank. One part or such receipt shall be given to the litigant after he
deposits fine in the Bank, the second part shall be sent by the Bank to the court concerned
and third part shall be retained by the Bank.
(2)
That with effect from 1st of July, 2010, a separate register shall be maintained for
registering the cases involving petty offences and if possible, the registration of such
cases can be done directly on computer.