In Md. Afsar @ Md. Afsar Alam vs. The State of Bihar, the Full Bench of Patna High Court comprising Justices Rajeev Ranjan Prasad, Jitendra Kumar and Dr. Anshuman will take up the matter on May 5, 2026. The case arose from the 12-page long judgment dated may 8, 2024 delivered by Dr. Anshuman in a case which had arisen out of PS. Case of 2021 from Kadwa, Katihar wherein he had referred:“16. This Court hereby refers this matter humbly before Hon’ble the Chief Justice to constitute Larger Bench for answering the reference to provide guidelines for the Trial Courts.”
The petitioner sought regular bail in connection with Kadwa P.S. Case No. 144 of 2021 arising out of G.R. No.2365/2021, lodged on 20.06.2021 under Sections 8, 20(b) (ii),C of the N.D.P.S. Act read with section 30(a) of Bihar Prohibition & Excise Act. The petitioner submitted that the bail application of the petitioner was earlier rejected vide order dated 14.10.2022 passed in Cr. Misc. No. 72502 of 2021 with liberty granted to the petitioner that he may renew his prayer for bail one year after framing of charge. Counsel submits that the charge has been framed in this case on January 18, .2023 and more than one year has been lapsed, so bail may be granted to the petitioner. The counsel also submitted that the criminal antecedent of the petitioner was not clean and there were two criminal cases pending against him in which in both the cases, he is on bail. The petitioner was in custody since June 21, 2021 in the case. The State submitted that a report was been called for in the case and from the report which was received by the Court in 2024 from the Sessions Judge, Katihar.
Section 8 of the NDPS Act reads:"Prohibition of certain operations.-No person shall (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
Section 20(b) (ii),C of the N.D.P.S. Act reads:"Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports interState, exports inter-State or uses cannabis, shall be punishable [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b), (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for".
The High Court recorded that the Sessions Judge had raised a legal issue in his report which states as follows:- “5) On 26.06.2023, the Court of Exclusive Special Excise Court No.-2, Katihar split up the record in respect of offence u/s- 20(b)(ii), C of N.D.P.S Act from section 30(a) of Bihar Prohibition and Excise Act, 2016 and on 04.12.2023 transferred this record to this court for trial of accused for offence under section 20(b)(ii), C of N.D.P.S Act, 1985 stating that as per section 84(1) of Bihar Excise Act, 2016 all Special Excise courts are exclusively designated for trial of offences under Excise Act only. Now trial for offences committed under Excise Act is being conducted in the Court of Exclusive Special Excise No.- 2, Katihar and trial for offences committed under N.D.P.S Act is being conducted in the Court of Sessions cum- Special Judge (NDPS Act), Katihar resulting into two separate trials creating multiplicity of trials for the parties. 6) In this regard, a letter no. 6092/2023 dated 23.12.2023 was sent seeking guideline from Hon'ble High Court of Judicature at Patna as to whether it would be proper that same accused person be tried by two different courts for committing offences covered by different Acts i.e offences under Excise Act be tried by the Exclusive Special Excise Court and Offences under N.D.P.S Act be tried by another court arising out of the same occurrence and P.S case number, whereas section 220(1) of Cr.P.C states that "If, in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence." It was also respectfully submitted that till date, this court has not received any guideline from the Hon'ble High Court and it is still awaiting.”
After going through the request made in the said letter, the High Court requested senior counsel Bakshi SRP Singh, Advocate and Chakra Pani, Advocate to assist on this issue. The legal question was that in the case i.e. Kadwa P.S. Case No. 144 of 2021, offences under the Narcotic Drugs And Psychotropic Substances Act, 1985 as well as under Bihar Prohibition & Excise Act, 2016 were present and vide order dated June 26, 2023, the record was split up. One for the court of Exclusive Special Excise Court and another for trial of N.D.P.S. Court. The Sessions Judge raised issue that whether it would be proper that same accused person be tried by two different courts for committing offences covered by the different acts (N.D.P.S. Act, 1985 and Bihar Prohibition & Excise Act, 2016) arising out of the same occurrence and P.S case number, and arising out of one occurrence and one P.S particularly when section 220(1) of Cr.P.C. clearly states that “If, in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.”
With a view to answer this question, senior counsel for the petitioner submitted that the relevant provisions of N.D.P.S. Act, 1985 and Bihar Prohibition & Excise Act, 2016 are necessary to be looked into. According to them, section 36-A (2) of the N.D.P.S. Act, 1985 and section 83 and 84(3) of Bihar Prohibition & Excise Act, 2016 are relevant which are as follows:-Section 36-A (2) of the N.D.P.S. Act, 1985 states as:-“When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.”
Section 83 of Bihar Prohibition & Excise Act, 2016 states as:-“Notwithstanding anything contained in sub-section(1) of section 76 of this Act, all offences punishable under this Act shall be tried by the Court of Sessions.” Section 84(3) of Bihar Prohibition & Excise Act, 2016 states as:- “The trial under this Act of any offence by the Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case.”
In addition to that, the provisions of section 220(1) of the Cr.P.C is also important.
The High Court on the basis of arguments made by the senior counsels as well as counsel Chakra Pani that the most relevant section for answering this question is section 36-A (2) of N.D.P.S. Act, 1985 which clearly states that when trying an offence under this act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.
Admittedly, the N.D.P.S. Act, 1985 is a central act and this subject comes within the purview of the List I- Union List (serial no.59) of the schedule 7 of the Constitution of India, whereas the Bihar Prohibition & Excise Act, 2016 is the State act comes within the purview of the List II- State List (serial no.8) of the schedule 7 of the Constitution of India. Whereas, section 83 of the Bihar Prohibition & Excise Act, 2016 states that Notwithstanding anything contained in sub-section(1) of section 76 of this Act, all offences punishable under this Act shall be tried by the Court of Sessions.
In this case, the Court which is trying the N.D.P.S. is the Sessions Court. The legislative direction under the Bihar Prohibition & Excise Act is that the trial shall be conducted by the Court of Sessions. Statement for deciding this issue is already laid down under section 36-A (2), where it has been stated by the law makers that Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. The charges framed under the Bihar Prohibition & Excise Act, 2016 has been made according to the principles and guidelines made in the Code of Criminal Procedure, 1973 and therefore, according to the act, it is well within the power of the N.D.P.S. Court to conduct the trial for the offences under N.D.P.S. Act, 1985 as well as under the Bihar Prohibition & Excise Act, 2016.
In this case, due to the reason that the accused has to be charged under Cr.P.C. at the same trial and therefore, instead of two different trials, one trial before the
N.D.P.S. Court has to be continued.
The senior counsel N.K. Agrawal and Bakshi raised same voice that in the present situation, there should be one trial and it must be only and only before the N.D.P.S. Court as the N.D.P.S. Court is Sessions Court also.
Chakra Pani submitted that for the purpose of deciding this issue, it is necessary to be looked into that N.D.P.S. Act, 1985 which is the Central act, whereas, the Bihar Prohibition & Excise Act, 2016 is the State act. He also supports the arguments made by the senior counsel Bakshi and N.K. Agrawal and submitted that in the case, the trial shall definitely to be taken before the N.D.P.S. Court only.
In this case, the discussion took place only the situation relating to one State Act with Central Act for the present the Bihar Prohibition & Excise Act, 2016 and N.D.P.S. Act, 1985.
Justice Dr. Anshuman observed that on the basis of the discussion, “the Court is hereby answering only one question which has been placed before this Court in the report by the Sessions Court, Katihar on which the assistance has been provided by senior counsel and advocate being amicus curie. This Court fully agrees on the issue as answered by senior counsel Mr. Bakshi that there shall be no two trials for one FIR even if, there are two different offences i.e. one under Bihar Prohibition & Excise Act, 2016 and another under N.D.P.S. Act, 1985 and hence, this answer accordingly.”
In the penultimate paragraph, Justice Dr. Anshuman concluded: “13. So far as the merit of this case is concerned, this Court hereby grants bail to the petitioner on furnishing bail bonds of Rs.30,000/- (Rupees Thirty thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge, Katihar in connection with Kadwa P.S. Case No. 144 of 2021 arising out of G.R. No.2365/2021, subject to the conditions as laid down U/s 437(3) Cr.P.C. as well as the following conditions:
(i) one of the bailor should be the family member of the petitioner who shall provide official document to show his bona fide;
(ii) the petitioner shall appear on each and every date before the Trial Court and failure to do so for two consecutive dates without plausible reason will entail cancellation of his bail bonds by the Trial Court itself;
(iii) the petitioner shall appear before the concerned police station every month for one year to mark attendance;
(iv) the petitioner shall in no way try to induce or promise or threat the witnesses or tamper with the evidence, failing which the State shall be at liberty to take steps for cancellation of the bail bonds; and
(v) the petitioner shall desist from committing any criminal offence again, failing which the State shall be at liberty to take steps for cancellation of the bail bonds.
14. However, the petitioner shall be granted bail only on being satisfied by the Trial Court that the petitioner is not absconding in any of the cases pending against him whose details are as follows:-
(I)- Katihar Rail P.S. Case No. 1 of 2011.
(II)- Katihar Mahila P.S. Case No. 87 of 2016.”
Justice Dr. Anshuman observed:”15. After passing the order of disposal in this case, I find, there are questions necessary to be answered with a view to find solution to problem which has arisen ad-nauseam before the Trial Court. Therefore, it is essential to be tested by the Larger Bench for which reference is necessary to be framed which are as follows:-“The Trial of a criminal case has to be conducted before which Court?
(a) When, the said criminal case has been lodged under two or more offences, which come under different Central Acts for which two or more different Special Courts assigned for trial under statutes.
(b) When, the said criminal case has been lodged under two or more offences which comes under one or more Central act and one or more State act having two or more different Special Courts assigned for trial under statutes.
(c) When, the said criminal case has been lodged under two or more offences which come under I.P.C. and Special Acts having different situations viz.,
(i) offences of I.P.C. provides higher punishment and Special Act provides lower punishment (For example:- a case under section 420 of the I.P.C. for which warrant trial prescribed with section 7 of the E.C. Act for which summary trial prescribed under law.
(ii) section 302 of the I.P.C. for which Sessions Trial provided with offences under Excise Act for which Special trial provided.
(iii) offences under I.P.C., Excise Act and E.C. Act (special law special trial)
(iv) offences under section 420 I.P.C. for which warrant trial provided with offences of section 138 of N.I. Act for which summary trial provided.”
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