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TMI Blog2014 (5) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... n on trial and directed the issuance of summons to the petitioner for his appearance on date fixed, i.e., 21.10.2011. 3. Some of the bare facts, so as to appreciating the issue involved herein, may be noticed. It appears that a Bolero Jeep bearing registration no.BR-05P-0582 was intercepted by a team of officers of the Customs Department, Muzaffarpur on an information that it was carrying contraband ganja and accordingly on search the jeep was found carrying 136 K.G. of ganja, which was seized by preparing seizure memo and a complaint petition bearing Customs Case No.60 of 2007-08 was filed before the Special Court Muzaffarpur. Cognizance of offence was taken and the trial commenced and it appears that during the trial which was held by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res were only applicable by virtue of Sections 36C of the NDPS Act vitiated the very trial. While doing so, I had left the evidence of P.W.10 intact and had directed the re-trial as regards the evidence of P.Ws.1 and 9 which appears from paragraphs-5,6 and 7 of the judgment dated 19th May, 2011 passed in the above noted criminal appeal. 4. The solitary ground raised before me by the learned counsel appearing for the petitioner was that in the light of Section 300 Cr.P.C., the re-trial of the petitioner was not permissible as he had already been acquitted. 5. Section 300 Cr.P.C. reads as under: 300. Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. 6. Thus, what may appear from the above provision is that once an accused has been 'tried by a Court of competent jurisdiction' for an offence and convicted or acquitted of the charge while such conviction or acquittal was in forced, he was not to be tried again for the same offence. Thus, what appears is that the first condition for applying the provisions of Section 300 Cr.P.C. is that the trial has to be by a Court having competent jurisdiction to try the offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re for trial of an offence under the said Act. In absence of any special provision as regards the procedure to be followed by the Special Court in trying the offences under the NDPS Act, the Special Court is bound to follow the procedure under Chapter-XVIII of the Cr.P.C. This may be appreciated more clearly if one could consider the provisions of Section 5 of the Prevention of Corruption Act, 1998 which, though lays down that the Special Judge shall be the Sessions Judge and the Special Court shall be the Court of Sessions, directs that for trying an offence under the Prevention of Corruption Act, the Special Judge is to follow the procedure in respect of trial of a warrant case. What I want to emphasize is that when there is a specific di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the appellant by following a wrong procedure could not entitle him to the protection of Section 300 Cr.P.C. as, in fact, his acquittal was not at all an appropriate and lawful acquittal. In holding the above view as regards the lack of jurisdiction, I am supported by a judgment of this Court in the case of Md. Yasin v. King-Emperor AIR 1926 reported in AIR 1926 Patna 302 also by Bhuban Mohan Bose v. The State reported in AIR 1958 Calcutta 202. 8. Learned counsel appearing for the petitioner cited before me three decisions and I find that one reported in AIR 1966 Supreme Court 69 also supports my view as regards the application of Section 300 (old 403) Cr.P.C. when it was held by the Supreme Court as follows:- "For the bar under S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creating competence in him to try the offence. It has always to be considered in light of the fact that no other trial procedure could be followed except the set of provisions contained in Chapter-XVIII in the light of Section 36C of the NDPS Act while trying an accused or an offence. As soon as the learned Special Judge-cum-Sessions Judge, Muzaffarpur was found having not followed the provision of Chapter-XVIII Cr.P.C., the trial was very much in inherent lack of jurisdiction and, as such, the acquittal could not be supported and it could not accrue any benefit of such acquittal to any accused like the present petitioner . The above view of my is directly supported by AIR 1958 Calcutta 2002, Bhuban Mohan Bose v. The State as also by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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