TMI Blog1993 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... y Court can refuse to accept the charge-sheet submitted to it by the Investigating Agency on the alleged two grounds viz., (i) that the same was not presented on either of the two days of a week so earmarked for the purpose for particular Police Station, and (ii) that the FSL report/ muddamal was not forwarded along with it? (3) Whether any lapse or default committed by the learned Magistrate in contravening Section 36-A(1)(b) of the NDPS Act in not forwarding the accused to Special/ Session Court immediately on expiry of 15th day confers any legal right upon the accused to earn mechanical default-bail on the alleged ground that as his further continued detention in judicial custody on expiry of the said 15th day, have been rendered illegal and unauthorised, turning blind eyes to the gravity and seriousness of the offence and deaf-ears to the concern voiced by the Legislature in imposing limitations on granting bail under Section37 (amended) of the said Act? And (4) Whether in absence of the Special Courts being constituted in concerned areas Under Section 36 of the NDPS Act, and further by virtue of express provision Under Section 36-D, the transitional jurisdiction in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours, the petitioner - Mas Ismail Sipoy, who was going on bicyle along with one Yusuf Ismail (absconding) on being found in possession of 240 grams of 'Charas' (6 small pallets) valued at ₹ 2,890/- was arrested on the spot by Mr. B. K. Ayer, P.I., ACB, Bhavnagar, who thereafter on the basis of alleged facts filed a complaint against them for the offences punishable under Sections 8 and 20(b) of the N.D.P.S. Act Further as alleged, as per the requirement of Section 36-A(1)(b) of the Act, though the petitioner was required to be forwarded to the Special/Sessions Court on or before 18-8-1992, yet as the record shows he came to be so forwarded only on 15-2-1993. Raising this sole ground, the petitioner submitted a bail application, the same being Misc. Criminal Application No. 968 of 1992 before the learned Additional Sessions Judge, who ultimately by judgment and order dated 23-11-1992 dismissed the same giving rise to the present Misc. Criminal Application. 3.3 Misc. Criminal Appln. No. 253 of 1993 -On 23-10-1992 at about 2.00 a.m., the petitioner Hasam Kasam Shaikh along with two other accused persons on being found in possession of 538 grams of 'Charas' va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th day of their production before them respectively. And fourthly, the reasons given by learned Judge in two of these three petitions to the effect that since the State Government has not issued any notification constituting Special Court under Section 36 of the NDPS Act, and further since by virtue of the provisions contained in Section 36-D of the said Act, till the time such Special Courts are constituted, the said powers of Special Courts are vested in the Session Courts to take cognizance of the offence and conduct the trial, unless the learned Magistrate completes committal proceeding under Section 209 of the Code, there was no question of forwarding the acused to the Session Court. 4.1 While driving home the aforesaid submissions, the learned advocates for the petitioners have first of all invited attention of this Court to the relevant Sections under the Criminal Procedure Code and NDPS Act which forms the background of the subject matter for arguments and counter-arguments between the parties, which reads as under:- Section 167 - Procedure when investigation cannot be completed in twenty-four hours, 167(2). The Magistrate to whom an accused person is forwarded unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. Section 36-A. Offences triable by Special Courts- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) All offences under this Act 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 Court then, one for such area, by such one of them as may be specified in this behalf by the Government; (b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under subsection (2) or Sub-section (2-A), of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate; Provided that where such Magistrate considers- (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (Emphasis supplied) (2) The limitation on granting of bail specified in clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 4.2 Point No. 1 - The first two points raised above arise only in Misc. Criminal Application No. 4057 of 1992, and accordingly making good the same, Mr. Pande submitted that in the instant case, the chargesheet was filed 44 days beyond the prescribed statutory time limit of 90 days and accordingly since the further detention of the petitioner in judicial custody was already rendered illegal and unauthorised, by this time, he was entitled to be released on default bail. In support of this contention, Mr. Pandey has relie upon the four Supreme Court decisions rendered in cases of Hussainara Khatoon v. Home Secretary, State of Bihar reported in AIR 1979 SC 1377 : (1979 Cri LJ 1052), Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotics Control Bureau, New Delhi, rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the facts and circumstances of the present case. While distinguishing the said decision, Mr. Pande further submitted that in the instant case, the petitioner had applied for bail in the Session Court quite prior to submission of the charge-sheet. Not only that but even after filing bail application in this High Court, and thereafter also even till today, no chargesheet is filed before the Session Court which is put at par with the 'Special Court' by virtue of Section 36-D of the NDPS Act. Mr. Pande further submitted that having regard to the provision for the Special Court in Section 36 and Section 36-D giving transitory powers of the Special Court to the Session Courts under the NDPS Act, the learned Magistrate is not authorised by law to accept the chargesheet. Under the circumstances, according to Mr. Pande, it is not clear from the judgment of the Supreme Court in case of Narcotic Control Bureau v. Kishan Lal (supra) as to whether the accused in that case had filed bail application prior to submission of the charge-sheet or not, as it has not discussed the same in detail because special leave was granted for limited purpose. Under the circumstances, judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed time-limit of 90 days], and accordingly, they also as a matter of course and right are entitled to be released on default-bail. Referring to Section 36-A(1)(b) of the Act, the learned advocates for the petitioners submitted that the same not only expressly prohibits detention of the accused in any manner whatsoever, either in Police custody or Judicial custody beyond the span of 15th day as a whole, but the same also further specifically directs the learned Magistrate to forward custody of accused to the Session Court, thus, placing reliance upon Section 36-A(1)(b) of the Act, the learned advocates submitted that by virtue of express mandatory provision, the accused cannot be kept even in judicial custody exceeding the prescribed statutory time-limit of 15 days, as after the expiry of the said period, petitioners were required to be forwarded to the Special Court and in absence of it, to the Session Court; as the case may be which is duly invested with necessary powers of the Special Court during the transitory period as provided in Section 36-D of the Act. Thus, any default in complying with the said provisions of Section 36-A(1)(b) of the Act being patently illegal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under Section 439 of the Code were not controlled or curtailed in any manner which has been done in Sub-section (2) of Section 37 of the Act. Further according to the learned Advocates for the petitioners, had indeed there been any intention on the part of the Legislature to put limitation on exercise of the powers in cases of default under Section 36-A(3), then the same would have surely been incorporated in Section 36-A itself. That is not done. Instead, it is specifically mentioned that the special powers of the High Court are unaffected when such defulat or breach is found to have been committed. Further, according to the learned advocates for the petitioners, the case of Narcotic Control Bureau v. Kishan Lal (supra) does not mention anything on this point of default-bail under Section 36-A(1)(b). It was further submitted that Section 37 of the Act specifically provides conditions to be borne in mind while deciding the bail applications. Therefore, it can be said that as per the above referred Supreme Court decision, the Supreme Court had decided on limited question of law in the facts of that case, and that it has not uttered a single word about the effect of Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(b), the committal proceedings were dispensed with, Thus, till the time Special Courts are constituted by the State Government, Session Courts have been invested with the powers of Special Courts by virtue of Section 36-A, hence the question of committing the accused to the Court of Session clearly stands dispensed with. In support of this contention, the learned advocates for the petitioners have relied upon decision of Kerala High Court rendered in Criminal Reference No. 2, reported in 1992, Drugs Cases, 95. 5. As against the above, M/s. P. S. Chapaneri, K. C. Shah, M. A. Bukhari K. P. Raval, the learned APPs vehementaly opposing these bail applications at the very outset submitted that in the instant Cases, following three circumstances emerge from the record, namely; (i) that the offences alleged against the petitioners-accused are under the NDPS Act which is the special Act, (ii) that there is a Section 37 (amended) in the said Act which once again is specially engrafted in place of old Section 37 which in unmistakable terms had placed limitation on exercise of powers by the Courts in matter of releasing the accused on bail, and (iii) that the petitioners have been fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial interest on the other. The learned APPs further submitted that the NDPS Act is a special and self-contained Act, wherein Section 37 (amended) occupies special field in the matter of granting or refusing the bail, and therefore, the provisions of the Code have no application in the matter of offences under the Act. Consequently, the petitioners are not entitled to any bail under Section 167(2)(a) of the Code or under Section 36-A(1)(b) of the Act. 5.1 As regards the Point No. 2(1), it was further submitted by the learned APPs that in the instant cases, the Investigating Agency cannot be blamed for not submittting the Chargesheet within stipulated period of 90 days as the Affidavit of P.I. Mr. Pathan clearly shows that it was the Court of learned Magistrate which was at fault in refusing to accept the same. Similarly, as regards Point No. 2(ii), the learned APPs, have relied upon decision of this Court rendered in case of Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi, reported in 1984 (2) 25 GLR 883, which squarely covers the point. 5.2 It was further submitted by the learned APPs that so far as the first three points are concerned, they are squarely covered by the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not filed wihtin the prescribed time limit of 90 days or their detention have become illegal and unauthorised on expiry of the 15th day of their detention. 5.4 On the basis of above submissions, the learned APPs finally urged that none of the points raised by the learned advocates for petitioners have any substance worth the name, and therefore, there was no question of releasing the petitioners on default-bail as prayed for. 6. Point No. 1 - Taking the first contention first, it is true that in case of the petitioner in Misc. Criminal Application No. 4057/92, there is a delay of about 44 days in filing the chargesheet by the Investigating Agency before the learned Magistrate. It is equally further true that ordinarily in view of the said patent illegality, the petitioner would have been entitled to be released on default-bail by virtue of several pronouncement of the Supreme Court and of this Court on the point. Still however, in view of the Supreme Court decision rendered in case of Narcotics Control Bureau v. Kishan Lal (supra), the aforesaid contention does not survive any more. In the aforesaid case, the Supreme Court was called upon to decide the identical questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her law shall be investigated, inquired into, tried, and otherwise dealtt with according to the same provisions, but subject to any enactment for the time-being in force regulating the manenr or place of investigating, inquiring into, trying or otherwise dealing with such offences. It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.P.C. should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the state has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1983) 1 SCR 393 : AIR 1982 SC 1413 L (1983 Cru LJ 647), regarding the mode of interpretation the Supreme Court observed as followed at page 1419 of AIR: The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et in matter of offences under the NDPS Act rests clinched and concluded by the decision of the Supreme Court rendered in case of Narcotic Control Bureau v. Kishan Lal (supra). Still however, with a view to prevent some such controversial practices as alleged in the instant cases, inadvertently even, by way of some abundant caution, this Court would like to make some observations for the benefit of subordinate Courts. Accordingly, firstly having regard to the provisions contained in Section 167 of the Code, the alleged practice of not accepting the Chargesheet papers except on particular fixed days cannot be countenanced for a while. The reason is that it is very likely that by following such illegal practices, in a given grave and serious case where the chargesheet gets belated and as a result of which the accused, sometimes even hard core accused, may get benefit of default bail and get released even if the same was filed late by one day only ! Thus, if at all any such practices under some bona fide misconception is prevailing in any court, then in that case, the Sessions Court will take care by issuing circular to all the concerned Magistrate with a view to see that such practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial/ Session Court. This is only the first-hand impression and the literal meaning of reading of the said section at the first glance. In fact, the basic reason/object underlying this provision appears to be the speedy trial. Not only that but even in case of default-bail under Section 36-A(1)(b), while interpreting the said Section, this Court cannot lose sight of the fact that there is a special provision regarding bail only, by way of Section 37 (amended). Thus, when the question of interpreting Section 36-A(1)(b) of the Act arises, it shall have to be read in conjunction with the said Section 37 (amended). Further still, the NDPS Act is a special Act for which 'Special Courts' are provided with a view to see that the trial of the accused are conducted as expeditiously as possible. If the cases under the NDPS Act were to be tried by the ordinary Criminal Courts viz., Session Courts, then in that case, the Session Courts being busy with number of other criminal cases, the cases under the NDPS Act may unnecessarily get delayed and accordingly, bearing in mind, perhaps this particular circumstance, that the Legislature has thought it fit to have a Special Court for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be filed beyond the prescribed time limit of 90 days and therefore though the custody of the accused thereafter was clearly rendered illegal and unauthorised, and yet the Supreme Court in its wisdom, in view of the specific provisions as contained in Section 37 (amended) of the NDPS Act did not release the accused on bail.' In the instant case also, the arguments advanced by on behalf of the petitioners-accused were to the effect that since the learned Magistrate did not forward custody of the accused to the Special/ Session Court on expiry of 15th day, their subsequent detention stands clearly illegal and unconstitutional, and therefore, accused deserves to be released on bail. Now this contention under Section 36A(1)(b) and Section 167(2)(a) regarding default-bail on account of illegal and unauthorised detention are quite identical and accordingly, if under the identical situation under Section 167(2)(a) of the Code, applying the provision of Section 37 (amended) of NDPS Act, the Supreme Court has thought it fit not to release the accused on default-bail, this Court thinks that in the instant case also, under the similar set of circumstances of illegal and unauthoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail and were released on bail accordingly. Still however, with due respect to the said High Courts, for the reason discussed hereinabove, this Court finds it not possible to agree with the same. Further, as regard the argument of the learned advocates for the petitioners that since the accused were not forwarded to the custody of the Session Courts, as warranted under Section 36-A(1)(b) of the Act, their continued detention on expiry of 15th day having been rendered clearly illegal and unauthorised, in view of Article 21 of the Constitution, their liberty cannot be interferred with without due procedure established by law, this Court has no hesitation in holding that this contention of the learned advocates also has no substance worth the name, for the simple reason that in the facts and circumstances of these cases, it cannot be said that the liberty of the citizen have been taken away without any due procedure established by law. It is quite true that on expiry of 15th day, the learned Magistrates were ordinarily required to forward custody of the petitioners/their case papers to the Session Courts which have not done. But then, at. the same time, under such circumstances, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant; provisions under Section 36A(1)(d) the NDPS Act which has clearly dispensed with committal proceedings in the matter of offences under the NDPS Act. Thus, having read and appreciated both Sections 36D and 36-A(1)(b) of the said Act in juxtaposition, the same under cannot be interpreted to say that what is provided under Section 36-A(1)(b) is sought to be written off by Section 36D. Both these sections are mutually complimentary and not self-contradictory. Thus the submissions made by the learned advocates for the petitioners on this count deserves to be accepted. In that the view that this Court is taking is clearly supported by a decision of Kerala High Court, reported in 1992 Drugs Cases 95, cited at Bar by the learned advocates for the petitioners. In para 2 of the aforesaid judgment, it is observed as under:- 36D is a transitional provision and if mandates that until a Special Court is constituted under Section 36 any offence committed under the Act shall be tried by a Court of Session, Power under Section 36D has been given notwithstanding anything contained in the Code. It may also be noticed that Section 4(2) of the Code specifically states that all offences u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressly dispensed with. The answers to the questions raised at the top of this judgment, when briefly summarised, the same read as under :-- (1) In the matter of offences under NDPS Act so far the default-bail under Section 167(2)(a) of the Code as well as Section 36A(1)(b) of the said Act are concerned, they in view of firstly Section 37 (amended) and secondly, the Supreme Court decision in case of Narcotic Control Bureau v. Kishan Lal (supra) are out of question. (Ref : Questions Nos. 1 and 3) (2) That merely because it. is held that the accused under the NDPS Act are not entitled to any default bail either under Section 167(2)(a) of the Code or under Section 36-A(1)(h) of the said Act that does not relieve Investigating Agency and the concerned Court from discharging their obligation of complying with the necessary requirements, either to submit the Charge-sheet on or before the stipulated period of 90 days and forward the custody of the accused to Special/Session Court on expiry of the fifteenth day. In fact, any default either by Investigating Agency or the concerned Magistrate would be liable to explanation to its superior authorities. In this regard, the Home Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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