Section 36AD of the Drugs and Cosmetics Act 1940: Criminal Procedure Before Special Court

Section 36AD regulates the criminal procedure applicable to proceedings before a Special Court constituted under the Drugs and Cosmetics Act, 1940. It addresses the procedural code, the status of the Special Court, bail and bonds, and the appointment and legal status of Public Prosecutors and Special Public Prosecutors.

Key point: The enacted text of Section 36AD expressly refers to the Code of Criminal Procedure, 1973. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and repealed the CrPC, subject to statutory savings for proceedings already pending. For references in existing enactments to provisions that have been repealed and re-enacted, Section 8 of the General Clauses Act, 1897 is also relevant unless a different legislative intention appears.

What Section 36AD provides

Section 36AD is part of the special-court framework under the Drugs and Cosmetics Act. Its principal function is to connect proceedings before a Special Court with the general law of criminal procedure, except where the Drugs and Cosmetics Act itself provides otherwise.

Section 36AD(1): Procedure before the Special Court

Subject to contrary provisions in the Drugs and Cosmetics Act, the Code of Criminal Procedure, 1973, including provisions relating to bail and bonds, applies to proceedings before the Special Court.

For that purpose, the Special Court is treated as a Court of Session, and the person conducting the prosecution is treated as a Public Prosecutor.

The Central Government or the State Government may also appoint a Special Public Prosecutor for a case, cases, or a group of cases.

Meaning and legal effect of Section 36AD(1)

Special law prevails where it provides otherwise: the opening words preserve any special procedural rule contained in the Drugs and Cosmetics Act.
General criminal procedure applies: where the Act does not create a different procedure, the applicable general criminal-procedure framework governs proceedings before the Special Court.
Bail and bonds are expressly included: Section 36AD specifically brings bail and bond provisions within the procedural framework, subject to special restrictions elsewhere in the Act, including Section 36AC where applicable.
Special Court is treated as a Court of Session: this statutory deeming provision determines the procedural character of the Special Court for the purpose of the criminal-procedure law.
Prosecutor is treated as Public Prosecutor: the person conducting prosecution before the Special Court receives the statutory status specified by Section 36AD.

Section 36AD(2): Qualification of Public Prosecutor

Sub-section (2) prescribes the qualification for appointment as a Public Prosecutor or Special Public Prosecutor under Section 36AD. The statutory text requires not less than seven years of practice as an advocate. The provision should be read with the precise enacted text and the applicable appointment framework.

Section 36AD(3): Deemed status as Public Prosecutor

Sub-section (3) states that every person appointed as a Public Prosecutor or Special Public Prosecutor under Section 36AD is deemed to be a Public Prosecutor within the meaning of the definition contained in the criminal-procedure law referred to by the section, and the procedural law operates accordingly.

CrPC reference after commencement of BNSS 2023

Current procedural context: The Bharatiya Nagarik Suraksha Sanhita, 2023 is in force from 1 July 2024. Section 532 of the BNSS repeals the Code of Criminal Procedure, 1973 but preserves the CrPC for an appeal, application, trial, inquiry or investigation that was pending immediately before commencement of the BNSS.

Section 8 of the General Clauses Act, 1897 provides a general rule for construing references in other enactments when an earlier enactment is repealed and re-enacted: unless a different intention appears, the reference is construed as a reference to the re-enacted provision. Accordingly, the date and procedural stage of a particular case can matter when determining the governing criminal-procedure provisions.

Issue	Section 36AD position
Proceedings before Special Court	General criminal procedure applies unless the Drugs and Cosmetics Act provides otherwise.
Bail and bonds	Expressly included, subject to special provisions of the Act such as Section 36AC where applicable.
Status of Special Court	Deemed to be a Court of Session for the relevant procedural purpose.
Prosecution	Person conducting prosecution is deemed to be a Public Prosecutor.
Special Public Prosecutor	Central or State Government may appoint one for a case, cases, or group of cases.
Minimum advocacy experience	Not less than seven years under sub-section (2).

Relationship with Sections 36AB, 36AC and 36AE

Section 36AD should not be read in isolation. Section 36AB deals with Special Courts, Section 36AC contains special provisions concerning cognizable and non-bailable offences in specified cases, and Section 36AE deals with appeal and revision. These provisions form part of the same special procedural scheme.

Official legal sources

For the authoritative statutory material, refer to the India Code page for Section 36AD, the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code, and the General Clauses Act, 1897 on India Code. Regulatory and drug-law material is also available through the Central Drugs Standard Control Organisation.

This page is an explanatory legal reference. For a pending prosecution, bail application, trial, appeal or revision, the applicable procedure may depend on the date of commencement and the procedural history of the case.