TMI Blog1994 (2) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Act till Special Courts are constituted under Section 36 of the Act. 2. There is a complete scheme carved out by the Parliament when it incorporated Section 36, 36-A to 36-D and Section 37. The perusal of these provisions makes it amply clear that on enforcement of these provisions, the Government for purposes of providing speedy trial of the offences under this Act, have to, by notification in the official gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. It is quite clear to us that unless and until the Special Courts are constituted under Section 36 of the Statute, there could arise no occasion for giving effect to the provisions of Section 36-A to section 36-C in as much as Section 36-D itself takes care of transitional period by laying down that till the Special Courts are constituted, the offences under the Act shall be tried by a Court of Session. 3. Section 36-A(1)(b) itself contemplates that after the expiry of the 15 days of detention, initially given by a Magistrate, the Magistrate who has no jurisdiction either to deal with such an accused or to try such an accused has to forward s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Courts are constituted, all the offences under the Act are to be tried by a Court of Session. The applicability of the provisions of the Code of Criminal Procedure, particularly the provisions of Section 167 were not made unenforceable during the transit period. There could not have been any difficulty in Parliament making its intention clear by using clear words that accused would be dealt with by a Court of Session till the Special Courts are constituted and Court of Session shall have power of Special Courts during the transitional period. The deliberate omission to use these words makes the mind of the Parliament clear that during the transitional period, only the offences under the Act are to be tried by the Court of Session and till Special Courts are constituted, obviously the accused or the persons suspected of commission of such offences are to be dealt with by the provisions of Code of Criminal Procedure and as soon as Special Courts are constituted, the accused and the persons suspected of having committed the offences under the Act are to be dealt with under the provisions of Section 36-A(1)(b) and (c) of the Act. 8. This interpretation would lead to a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench. 2. The legal questions which arise for decision are us to whether in view of the provisions of Section 36A to 36D of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter to be called N.D.P.S. Act), was the Metropolitan Magistrate entitled to remand the petitioner in judicial custody during the investigation of the case registered against the petitioner vide F.I.R. No. 532 of 1992 dated October 30, 1992 from time to time for 15 days at a time till the challan is filed and secondly in case it were to be held that the Metropolitan Magistrate had no power to remand the petitioner in judicial custody for a period more than 15 days in all, whether the illegal detention of the petitioner under the remand orders made by the Metropolitan Magistrate from time to time entitles the petitioner to be released forthwith even though during the pendency of this writ petition after the filing of the return, the petitioner is being remanded to judicial custody validly during the trial of the case by the Additional Sessions Judge. In other words, the question to be decided is whether the validity of the detention of the petitioner is to be determined on the day of the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the N.D.P.S. Act, are constituted but the contention raised is that as the detention of the petitioner was invalid up to the date of the filing of the return by the respondents, the petitioner is entitled to be released forthwith despite his subsequent detention in judicial custody having become valid because of happening of subsequent events. 8. The narcotic drugs and psychotropic substances being easily made available to the vulnerable sections of humanity throughout this universe have been ruining the society comprehensively be making the young people addicted to such drugs and their losing all sense of purpose of living. The menace to the civilized way of life had led international initiative to require the countries to enact stringent laws to curb the production, sale and distribution of such narcotic drugs and psychotropic substances. The hazardous evil effects of the narcotic drugs and psychotropic substances on the health of the human society are well known. Our Parliament had put on the statute book the present Act with a view to strongly deal with such persons who deal in such nefarious activities of producing, distributing and selling such substances or dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Under sub-section 2 or sub-section 2A of Section 167 of the Code of Criminal Procedure, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is Judicial Magistrate and seven days in the whole such Magistrate is an Executive Magistrate : Provided that where such Magistrate considers - (i) when such persons is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him. that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. 12. Clause (c) of this Section empowers the Special Court, to whom the accused is forwarded by the Magistrates under clause (b), to have the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, meaning thereby the powers which a Magistrate had under section 167 of the Code of Criminal Procedure for remanding the accused to judicial custody for 15 days at a time had been now conferred on the Special Court. Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re constituted, the resultant effect of enforcement of all these provisions is that under section 36A(b) of the Act any person accused or suspected of committing of an offence under the Act, if forwarded to a Magistrate, under the provisions of sub-section (2) or sub-section 2A of Section 167 of the Code of Criminal Procedure, such Magistrate has authority to order detention of such person in custody for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in whole where such Magistrate is an Executive Magistrate. So, it is urged that as the petitioner has been detained for more than 15 days by a Metropolitan Magistrate, the said detention has become invalid as a Metropolitan Magistrate had no authority to order detention of a person for a period exceeding 15 days as a whole. 15. It is contended by learned counsel for the petitioner that on the expiry of period of 15 days, the Metropolitan Magistrate having lost the jurisdiction to order any further detention, the Metropolitan Magistrate should have either released the accused or should have forwarded the accused to the competent Court which could try such an accused, that Court b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 36 of the Act, the Magistrate is to exercise his powers only under section 36A(1)(b) of the Act. Section 36A itself contemplates the forwarding of the suspect on the accused to a Special Court on the expiry of 15 days of detention as a whole authorised by a Magistrate. There being no Special Courts in existence, evidently this provision cannot be invoked by anyone. 19. During the transaction period till the Special Courts are constituted, Section 36D clearly contemplates that the offences shall be tried by Court of Sessions meaning thereby that a Court of Sessions shall try the offences in accordance with the provisions of the Code of Criminal Procedure and till the special Courts are constituted, the trial before the Court of Session can take place in accordance with the provisions of Code of Criminal Procedure which contemplate committal proceedings before the Session Court is seized of the case for trial. These amended provisions in the Statute have not made inapplicable provisions of Code of Criminal Procedure regarding committal proceedings during the transitory period. It is quite clear that the accused or the suspected persons, who are arrested for commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that the words can be supplied by the Court and the Court of Session could be deemed to be Special Court for purposes of said special provision. 24. With all respects to the learned Judge, we are not able to agree with the said view as we are of the firm view that question of supplying any words by the Court could not arise in the case the whole scheme of the said provisions and particularly the specific provision made for transitional period in Section 36D are kept in view. 25. The intention of the Parliament was very clear that till the Special Courts are constituted, all the offences under the Act are to be tried by a Court of Session. The applicability of the provisions of the Code of Criminal Procedure, particularly the provisions of S. 167 were not made unenforceable during the transit period. There could not have been any difficulty in Parliament making its intention clear by using clear words that accused would be dealt with by Court of Session till the Special Courts are constituted and Court of Session shall have power of Special Courts during the transitional period. The deliberate omission to use these words makes the mind of the Parliament clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration before the Supreme Court was whether the High Court has the power to enlarge on bail without being constrained by the provisions of Section 37 of the N.D.P.S. Act and it was held that for enlarging on bail for the offences under the said Act. Special Court and the High Courts have to keep in view the provisions of Section 37 of the Act. Nothing said in this judgment is of any help in deciding the point arising for consideration before us. 33. The interpretation which we have given would lead to a harmonious construction of the provisions without doing any violence to the language used by the Parliament in various provisions referred above. Hence, we hold that till the Special Courts are constituted, the accused or the suspected persons arrested for commission of the offences under the Act are to be dealt with under the provisions of the Code of Criminal Procedure but they are to be tried by a Court of Session. Under the provisions of Code of Criminal Procedure, the Metropolitan Magistrate has the jurisdiction and power under section 167 to order detention of such accused to judicial custody for 15 days at time till the challan is filed and the accused are committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in Halsbury's Laws of England of Fourth Edition Volume II at page 791 make it evident that a return can be modified later on with the permission of the Court even up to the date of the hearing of the habeas corpus petition. If a return can be allowed to be amended and filed, then it is not understanding as to how it can be said that in England, the legal position is that detention of a person is to be justified only up to the date of filing of the return. 36. In a book The Law of Habeas Corpus by R. J. Sharpe, 1976 Edition from pages 174 to 181, the legal position has been summarised by the learned author and he has opined as follows : It has been held consistently that the relevant time at which the detention of the prisoner must be justified is the time at which the court considers the return to the writ. This rule means that nothing which has happened before the present cause of detention took effect will be relevant to the issue before the Court, unless by reason of some special consideration arising from the particular proceedings ....... The general rule is that unless prior illegality vitiates the present cause of detention, it will not matter what ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat basis such a person is being detained and if no proper cause is shown for detaining the person in accordance with law, a command issues from the Court for releasing such a person forthwith. 39. In case of Naranjan Singh Nathawan, 1952CriLJ656 (supra), the Supreme Court had observed that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of institution of the proceedings. Facts, in brief, were that the petitioner in that case was arrested on July 5, 1950 under an order issued by District Magistrate, Amritsar under section 3 of the Preventive Detention Act 1950. The grounds of detention were served on him on July 10, 1950. The Act was amended in 1951 and fresh order dated May 17, 1951 was issued. The only question which arose for decision was that even if the detention of the petitioner was bad on the date of the institution of the proceedings against him, whether he could be released on that basis, even though his detention becomes valid by issuance of a subsequent order and in that context, the Court held that the validity of the detention is to be seen at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought to be justified on the basis of two remand orders, one alleged to have been passed by the Additional District Magistrate at 8 p.m. on March 6, 1953 and the other by a trial Magistrate at about 3 p.m. on March 9, 1953. The Supreme Court, on looking up the record, found that no valid order of remand had been made on March 9, 1953 at all and after the hearing was over in the case, certain documents were sought to be put on the record in order to show that in fact an order has been made remanding the said detenu to judicial custody till March 11, 1953. The Supreme Court held that they cannot take notice of the documents produced in such suspicious circumstances and they held that they were not satisfied that there was any order of remand. In that situation, the Supreme Court held that the detenus were entitled to be released forthwith. So it is evident that even up to the date of hearing the authorities had failed to satisfy the Supreme Court from the record that the detention of said persons was valid. So nothing said in this judgment supports the contention that the Supreme Court has categorically laid down a proposition of law that detention of a particular person is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued if detention on that date is lawful. This Judgment is not in conflict with the judgments of the Supreme Court which are referred above. So, it cannot be said that this judgment is per in curium . 46. In case of Col. Dr. B. Ramachandran Rao AIR1971SC2197 (supra), to which same learned single Judge was also a party, it was held that in proceedings of a writ of habeas corpus, the Court is to have regard to the legality or otherwise of the detention at time of the return and not with reference to the institution of the proceedings. A fortiori the Court would not be concerned with a date prior to the initiation of the proceedings for a writ a habeas corpus. The earlier two Supreme Court judgments in cases of Ram Narayan Singh 1953 Cri LJ 1113 (supra) and Naranjan Singh Nathawan, 1952CriLJ656 (supra) were followed. Again, this judgment does not deal with the legal proposition which has arisen for decision before us. So, we need not say anything more on this point. 47. In Kanu Sanyal v. District Magistrate 1974CriLJ465 , the learned Judges did refer to the question whether detention can be justified up to the date of hearing or not but the question was left open for decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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