Bagga Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

Petitioner is claiming bail under Section 439 Cr.P.C. He is arrested on 16.9.1997 for an offence under Section 15 of the N.D.P.S. Act (for short the ''Act'') on the allegation that he was having in his possession 20 kgs. 250 gms of Poppy Husk. Learned counsel for the petitioner contended that petitioner is 16 years of age but still he has not been released on bail despite Apex Court''s judgment. He also submits that the contraband was sent to Chemical Examiner but as per Section 2(c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985, ''Chemical Examiner'' means the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or, as the case may be, Ghazipur. He also contended that the rules are made by the Central Government vide notification No. GSR 877(E) dated 14.11.1985. As per these rules, the appointment of a Chemical Examiner, for the purposes of analysis of N.D.P.S. contraband can only be made by the Central Government but in the present case the appointment of Chemical Examiner at Bhatinda has been made by the Punjab State. There is no mention in the Act that powers can also be delegated to the State. On that premise, learned counsel contends that report of the Chemical Examiner cannot be taken on record. Without that report, the petitioner''s custody is illegal and he is entitled to bail on this ground. He has relied on State of Himachal Pradesh v. Tek Ram, 1998(1) RCC 598.

Learned Counsel also contended that petitioner was continuously produced before the Illaqa Magistrate beyond a period of 15 days. Under the amended provisions of the Act, the Magistrate is entitled to grant remand only upto 15 days and thereafter Special Judge is authorised to grant remand. On that ground also, petitioner''s custody becomes illegal. To support this contention, he has relied on Nishan Singh v. State of Punjab, 1988(1) RCR 767 .

After hearing the learned counsel, in my considered view, there is hardly any ground to grant bail to the petitioner. The petitioner has not placed on record copy of the report of the Chemical Examiner. Whether Chemical Examiner who has examined Opium can be said to be duly appointed Chemical Examiner can be only seen when evidence will be adduced by the prosecution. Further Rule 2(c) of the Rules defines Chemical Examiner but that is for the purpose of Chapter III of the said Rules for analysis of samples of lawfully cultivated and produced Opium. There is no provision in these Rules or in the Act debarring Chemical Analysis of unlawfully possessed Opium seized in connection with the offence elsewhere at any laboratory in the country. To hold this view, I am relying on Ram Dayal v. Central Narcotic Bureau, Gwalior, 1993(1) RCR 264 .

Petitioner is facing trial under Section 15 of the Act. Contraband Poppy Husk was sent to the Chemical Examiner for analysis. Petitioner must have received the report also which is not produced. Hence, on this ground, the petitioner cannot be granted bail. Petitioner has not placed on record any document to show that he is a juvenile offender.

So far as the other ground is concerned, in Janta Singh''s case (supra), 1996(1) R.C.R.(Crl.) 1 (FB), the Full Bench of this Court has held that till special Courts are constituted, the Magistrate is entitled to grant remand beyond 15 days under Section 36A(i)(b) of the Act. Special Courts were not constituted when challan in this case was filed. Special Courts in Punjab are constituted vide notification of the Punjab Government No. 1/46//963 Judl (1)/607 dated March 24, 1998.

So far as reliance on Nishan Singh''s case (supra) is concerned, it does not help the petitioner. Full Bench in Janta Singh''s case (supra) 1996(1) RCR(Crl.) 1 (FB) still holds the field. There is no other larger Bench judgment contrary to it.

Further, the judgment given in Janta Singh''s case (supra) was doubted by Single Benches in Baljinder Singh v. State of Punjab, Cr. M 259/M/1997 and Nachattar Singh v. Punjab State, Cr. M 14722/M/1995 in view of the law laid down by the Apex Court in Supreme Court Legal Aid Committee v. Union of India, 1994(3) Recent Criminal Reports 639 . The view of the Full Bench is binding on them.

In Janta Singh''s case (supra), the Full Bench of this Court has considered the provisions of Section 36A(1)(a) to (d) of the Act, which are added by Amending Act No. 2 of 1989 with effect from 29.5.1989. Full Bench has considered various judgments of different High Court and also of Natabar Parida Bisnu Charan Parida Batakrushna Parida Babaji Parida v. State of Orissa, 1975 Suppl. S.C.R. 137 and of Union of India v. Thamisharasi and others, 1995(2) RCR 531 .

In Natabar Parida''s case (supra), the Apex Court held that "the Court will have no power of remand of an accused to any custody unless the power is conferred by law." This power must, therefore, be traced to some provisions of the Statute.

In Union of India v. Thamisharasi and others, 1995(2) RCR 531, the Apex Court held :

"Section 36A makes it clear that a person accused of or suspected of the commission of an offence under the NDPS Act is to be forwarded to a Magistrate under subsection (2) or subsection (2a) of Section 167 Cr.P.C. and the Special Court constituted under section 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise under section 167 Cr.P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr.P.C. particularly subsection(2) thereof, is an indication that no part of subsection (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S. Act......"

After considering all these authorities, the Full Bench in Janta Singh''s case (supra) held as under :

"From this point of view also, as Special Courts are not constituted under Section 36 of the Act, the Magistrate has power to grant remand of a person accused of or suspected of the commission of an offence under this Act under Section 167(2) of the Code. Thus the proviso to Section 167(2) of the Code also comes into operation and it becomes evident that the Magistrate has power to grant remand upto 90/60 days to such person till Special Courts are constituted in the State of Pb. As soon as the special courts are constituted under Section 36 of the Act, the Judicial/Executive Magistrate shall have power to grant remand only for 15/7 days as provided under Section 36A(1)(b) of the Act and thereafter the accused is to be forwarded to the Special Court under Section 36A(1)(c) of the Act and the Special Court shall have jurisdiction to take cognizance of the offence without the case being committed to it. Thus, we answer question No. 1 in these words :

Till Special Court is constituted a Judicial Magistrate can give remand of the accused beyond a period of 15 days under section 167(2) of the Code as he is empowered to exercise this power under Section 36A of the Act."

When bail application of Nachattar Singh was considered by a Single Bench of this High Court in Nachattar Singh v. State of Punjab, 1996(1) Recent Criminal Reports 202, the learned Single Judge observed as under :

".....The contention raised by the learned counsel for the petitioner is fully covered by the aforesaid judgment of the Full Bench dated 21st September, 1995 and in terms of this judgment, the petitioner is not entititled to any relief, but respectfully though regretfully, I have opted not to follow the law laid down by the Full Bench as the decision of the Full Bench is contrary to the law laid down by the Supreme Court in the case Supreme Court Legal Aid Committee representing prisoners v. Union of India, JT 1994(6) SC 544 : 1994(3) Crime 644. With due respect to the Hon''ble Judges, who constituted the Full Bench, I find that the Full Bench has not taken notice of the judgment of the Supreme Court in the case of Supreme Court Legal Aid Committee (supra)".

The learned Single Judge further observed :

"In the judgment referred to above, the Supreme Court observed that Section 36D of the Act is a transitional provision and under subsection (1) of Section 36D, any offence committed under the Act, until a Special Court is constituted under Section 36, shall be tried by a Court of Session."

It was, therefore, further observed :

"Nonobstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence on or before the commencement of the Act and no other Court."

It was then observed :

"There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in Section 36D(1), all offences under the Act become triable by the Court of Session till the constitution of Special Courts."

On that premise, the learned Single Judge held :

"In terms of Section 36A(1)(b) the Magistrate can authorise detention of a person accused or suspected of the commission of the offence under the Act for a period not exceeding 15 days."

The learned Single Judge held :

"Provisions of Section 36A(1)(b) have been violated."

Hence, the bail was granted.

Another Single Bench of this High Court has granted bail to Baljinder Singh in Criminal Misc. Petition No. 259M of 1997.

In Sundarjas Kanyalal Bhatia and others v. Collector, Thane, Maharashtra and others, 1989(3) SCC 396, the Apex Court observed :

"......The judicial decorum and legal propriety demand that where a Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure."

In General Manager Telecom v. S. Srinavasan Rao & Ors., J.T. 1997(9) S.C. 234, the Apex Court observed :

"A twoJudge Bench of this Court in Theyyam Joseph''s case (1996) 8 SCC 489 (supra) held that the functions of the Postal Department are part of the sovereign functions of the State and it is, therefore, not an ''industry'' within the definition of Section 2(j) of the Industrial Disputes Act, 1947. Incidentally, this decision was rendered without any reference to the seven Judge Bench decision in Banglore Water Supply (supra). In a later twoJudge Bench decision in Bombay Telephone Canteen Employees Association case AIR 1997 SC 2817, this decision was followed for taking the view that the Telephone Nigam is not an ''industry''. Reliance was placed in Theyyam Joseph''s case (1996) 8 SCC 489 (supra) for that view. However, in Bombay Telephone Canteen Employees Association case (i.e. the latter decision), we find a reference to the Bangalore Water Supply case. After referring to the decision in Bangalore Water Supply, it was observed that if the doctrine enunciated in Bangalore Water Supply is strictly applied, the consequence is ''catastrophic''. With respect, we are unable to subscribe to this view for the obvious reason that it is in direct conflict with the seven Judge Bench decision in Bangalore Water Supply case (supra) by which we are bound. It is needless to add that it is not permissible for us, or for that matter any Bench of lesser strength, to take a view contrary to that in Bangalore Water Supply (supra) or to bypass that decision so long as it holds the field. Moreover, that decision was rendered long back nearly two decades earlier and we find no reason to think otherwise. Judicial discipline requires us to follow the decision in Bangalore Water Supply case 1987(2) SCC 213. We must, therefore, add that the decisions in Theyyam Joseph JT 1996(2) SC 457 1996 8 SCC 489 and Bombay Telephone Canteen Employee Association (JT 1997 (6) SC 57 AIR 1997 Supreme Court 2817) cannot be treated as laying down the correct law. This being the only point for decision in this appeal, it must fail."

Keeping in view the observations made in Sundarjas Kanyalal Bhatia''s case and General Manager Telecom''s case (supra), the learned Single Benches should have made a reference.

In Supreme Court Legal Aid Committee''s case (supra) the question before the Apex Court was which Court is competent to try the offences under the NDPS Act. The Apex Court has reproduced the provisions of Section 4(1) and (2) 209 of the Code of Criminal Procedure. They have also considered the amended Sections of the NDPS Act, which are brought on the statute book vide Amendment Act 2 of 1989, which came into force w.e.f. 29.5.1989. While considering the provisions of Section 36D of the Act, the Apex Court held :

"Nonobstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence on or after the commencement of the amending Act and no other Court including the Magistrate''s court will have jurisdiction to try an offence under the Act."

They also observed :

".......As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29th May, 1989, the offences under the Act were triable by different Courts under the Code depending on the punishments provided therefore, but after the introduction of this group of sections in the Act, the Legislature, with a view to speeding up the trial provided for the constitution of a Special Court and until such Court was constituted it provided by subsection (1) of Section 36D that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrate''s Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone and, therefore, the Courts of the Magistrate Ist Class 1, Metropolitan Magistrate, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. So from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since only the Court of Session is empowered to deal with such cases. Subsection (1) of Sec. 36A overrides the provisions of Code. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in Section 36 D(1)(a), all offences under the Act become triable only by the Court of Session till the constitution of Special Court and thereafter by the Special Court......."

Their Lordships further held :

".......On a conjoint reading of Sections 36, 36A to 36D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under Section 36. That is the thrust of clause (a) of subSection (1) of Section 36A. But the Legislature was aware that there may be a timegap between the coming into force of these provisions w.e.f. 29th May, 1989 and the Constitution of a Special Court. This period which is a transitional period is taken care of by Section 36D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance. It is not necessary to elaborate on when cognizance is understood to have been taken because that is fairly wellsettled by a catena of decisions of this Court, vide decisions based on an interpretation of Section 190 of the Code. Also see para 7 of Kisun Singh v. State of Bihar, (1993)2 SCC 16."

Under Section 209 of the Code of Criminal Procedure, the Magistrate has to consider whether from the police file/complaint a case exclusively triable by the Court of Session is made out or not and if made out then he has to commit the case. Under Section 36A(1)(d) of the Act after being constituted Special Court is authorised to take cognizance of the offences under the NDPS Act without the accused being committed to it for trial. In view of this provision, in Legal Aid Committee''s case (supra), the Apex Court has held that "....there would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in Section 36D(1), all offences under the Act become triable only by the Court of Session till the Constitution of Special Courts and thereafter by the Special Court....."

In Kishun Singh and others v. State of Bihar, (1993)2 Supreme Court Cases 16, provisions of Section 193 and 209 of the Code the various other judgments of the Apex Court were considered. The Apex Court held as under :

"......There is a difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands, once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted on the Magistrate committing the case u/s 209 of Code to the Court of Sessions the bar of Section 193 is lifted. Thereby investing the Court of Sessions complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record ....."

This question was again examined by the Apex Court in Raj Kishore Prasad v. State of Bihar and another, 1996(2) RCR(Crl.) 804 : 1996(2) All India Criminal Law Reporter 419 while reconsidering the matter and taking into consideration the earlier cases in Kishun Singh''s case (supra), which was approved in Nisar v. State of U.P., 1994(3) All India Criminal Law Reporter 740 (SC). Apex Court held :

"..........The Scheme and design of Chapter XVIII and the legislative policy reflected therein seems to have been underestimated. It is designed to secure speedy trial for those who are facing it. Sections 225 to 237 Cr.P.C. (which includes Section 227 and 228) are integrated provisions of a lot which govern in totality the trial proceedings under Chapter XVIII titled "Trial before a Court of Session". There seemingly is no intermediate stage envisaged between commitment and trial or the trial proceeding splitting into precharge trial and after charge trial. Trial begins with Section 225 when the Public Prosecutor is present before the Court of Session to conduct the prosecution and opens its case disclosing the evidence by which he proposes to prove the guilt of the accused. It is for him to highlight the particulars of the evidence he would lead to prove the case against the accused facing trial. The stage of Sections 227 and 228 comes as the next step after observance of such procedure, as part of trial. It is thus designed that proceedings to discharge or charge the accused are part of trial. Addition of an accused by summoning or resummoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319 Cr.P.C. on evidence adduced during the course of trial, and in no other way. Having thus expressed our doubts we do not, as at present advised, take the matter any further because the fact situation of the present case does not warrant resolution, a dire necessity......."

Thus, it is apparent that while deciding the Legal Aid Committee''s case (supra), the Apex Court has not considered the question of grant of remand, they were concerned with the point of controversy as to which is the trial Court and till Special Courts are constituted, which Court can be said to be trial Court for such offences under the NDPS Act. The second point which was posed before the Apex Court in that case is not relevant for the purpose of these bail applications.

In this Legal Aid Committee''s case (supra) the Apex Court has not at all adverted to the Provisions of Section 36A(1)(b), wherein power to grant remand is given to the Magistrate under Section 167(2)(a) of the Code. This provision was specifically considered by the Apex Court in Thamisharasi''s case (supra), a later judgment of Supreme Court, which was taken into consideration by the Full Bench in Janta Singh''s case (supra). Thus, in my considered opinion, the learned Single Judges of this High Court have not properly considered the import of the judgment of the Apex Curt in Legal Aid Committee''s case (supra) and have jumped at the conclusion that since the Full Bench has not taken into consideration this Judgment of the Apex Court, it has reached at the conclusion that till Special Courts are constituted in view of Section 36D(1) of the Act, offences under the NDPS Act are triable by Court of Sessions, but the Court of Session is not given any power under Section 36A(1)(c). If that point would have been under consideration before the Parliament, while these Sections are added in the Act, they could have clearly provided that till the Special Courts are constituted under Section 36 of the Act, the Session Court shall have power to try the offences under the NDPS Act as well as to exercise the powers of the Special Courts under Section 36 A(1)(c) and (d) also. In the procedural law, there cannot be any lacuna. Under Section 36A(1)(b), the Magistrate is authorised to grant remand for a period not exceeding 15/7 days. Thereafter if Special Courts are constituted, further remands are to be granted by the Special Courts and as per sub clause (d) of subsection (1) of Section 36A when Special Courts are constituted and police report is submitted before the Special Court, that Special Court is empowered to take cognizance of that offence without the accused being committed to it for trial.

A conjoint reading of Section 36A(1)(c) and (d) would make it clear that till Special Courts are constituted, after the initial remand of 15 days by a Magistrate under Section 36A(1)(b) of the Act, further remand is to be granted by the Magistrate only because there is no other provision in the NDPS Act providing for further remand to be granted by any other Court except the Magistrate till Special Courts are constituted. Therefore, in Janta Singh''s case (supra) it is rightly held that till Special Courts are constituted, the Magistrate has to grant remand. Hence, it is evident that if challan is presented in the Court of Magistrate at Jalandhar, it cannot be said that it was not submitted before a competent Court. The Magistrate was required to commit the case to the Court of Session as till then no Special Court was constituted in the State of Punjab.

Thus finding no merit in the bail petition, it is hereby dismissed.