Bhupinder Singh vs State of Haryana

J.S. Sekhon, J.

Contends that under the provisions of Section 36A, the Judicial Magistrate is competent to give remand of the accused for charge of the offence punishable under the provisions of Narcotic Drugs & Psychotropic Substances Act, 1985 uptil 15 days only. The provisions of Section 36A read as under :

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 Courts than 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 subsection (2A) 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 fifteen 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 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;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973(2 of 1974), in relation to an accused person in such case who has been forwarded to him under that Section.

(d) xx xx xx

A bare glance through the same shows that under clause (b) of sub section (1), the Judicial Magistrate is competent to give remand of the accused suspected of the commission of the offence under this act for a period not exceeding 15 days. However, perusal of Clause (c) of this subsection reveals that the Special Court has the powers to give remand etc. as are conferred on a Magistrate having jurisdiction to try a case under Section 167 of the Code of Criminal Procedure.

It is admitted by the learned counsel for the State that the accused was arrested on 25.10.1993 and is being remanded to the judicial custody under the orders of the Judicial Magistrate.

Under the circumstances, the present detention of the petitioner in judicial custody is illegal. He is, therefore, directed to be released on bail on furnishing requisite heavy bonds to the satisfaction of Chief Judicial Magistrate, Jind. It is, however, clarified that the Special Court can authorise the detention of such suspect to judicial custody even beyond the period of 15 days.

JUDGMENT accordingly.