Harbans Singh alias Lovely vs State of Punjab

By this order, both the Criminal Miscellaneous Petitions 27097-M and 29255-M of 1997 are being decided as the subject-matter involved in both these petitions is identical in nature.

Petitioner''s learned counsel contended that on 10-8-1997, police party stopped truck No. HR-25-0769 by giving a signal; two persons jumping from the truck ran away; they could not be arrested, but they were identified by Raj Kumar as Teeta son of Meet Singh and Sibba son of Meet. The other persons, who were found in the truck were petitioner-Harbans Singh who was driving the truck and Sarabjit Singh was sitting by his side; four other persons were sitting in the truck, whose names were Jita, Rana, Sokha and petitioner Pala. They were asked whether they would like to be searched before a Magistrate or Gazetted Officer, they declined such an offer and expressed that the police officer apprehending them by taking their search; no independent witness was joined. The prosecution has alleged that 75 bags containing 40 Kgs of poppy husk each were seized from the truck and on that basis this case is registered against these accused persons. Petitioners applied for bail before the learned Sessions Judge, which was declined.

Petitioner''s learned counsel vehemently argued that from the facts mentioned in the First Information Report, it is evident that both these petitioners were not in conscious possession of the alleged contraband. It is a case of heavy recovery, but despite that no independent witness was joined by the prosecution, which only indicates that they had been falsely implicated in this case. The learned counsel also submitted that challan was not presented within a period of 90 days before the proper Court; therefore, the petitioners were entitled to bail u/s 167(2)(a) of the Code of Criminal Procedure. They were arrested on 10-8-1997; challan was presented in the Court of Shri Nirmal Singh, Judicial Magistrate I Class, Hoshiarpur on 28-8-1997. That Court had no jurisdiction to entertain the challan; later on the case was committed to the Court of Sessions on 11-11-1997 after the period of 90 days. The learned lower Court while dismissing the petitioner''s bail application failed to consider the law laid down in Baljinder Singh v. State of Punjab, (Criminal Misc. No. 259-M of 1997), Nachattar Singh v. Punjab State (Cri. Misc. No. 14722 M of 1995) as well as the law laid down by the Apex Court in Supreme Court Legal Aid Committee v. Union of India 1994 (3) RCR 639 : (AIR 1994 SCW 5115). He also submitted that the remand was granted by the Judicial Magistrate beyond the period mentioned u/s 36A(1)(b) of the NDPS Act. He also pointed out that joint offer was given by the police to these accused persons, which is inadmissible in evidence. Lastly, he contended that actual culprits have been let off by the police by declaring them as Proclaimed Offenders and the petitioners have been falsely implicated in this case.

Learned Deputy Advocate General, Punjab, contended that till the date challan was presented, Special Courts were not constituted by the State of Punjab; therefore, challan could have been presented in the Court of Magistrate only. In view of the Full Bench of this High Court in Janta Singh Vs. The State of Punjab, the Magistrate was competent to commit the case to the Court of Sessions.

After hearing the rival contentions, in my considered view, the point raised by the learned counsel requires a deep thrashing.

In Janta Singh''s case (supra), the Full Bench of this Court has considered the provisions of Section 36-A(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 Courts and also of Natabar Parida Bisnu Charan Parida Bataknushna Parida Babaji Parida v. State of Orissa 1975 Supp SCR 137 : (1975 Cri LJ 1212) and of Union of India v. Thamisharas 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 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 sub-section (2) of sub-section 2-A of Section 167 Cr.P.C. and the Special Court constituted u/s 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise u/s 168 Cr.P.C. in relation to an accused person forwarded to him under that Section. That clear reference to the power of the Magistrate u/s 167. Cr.P.C., particularly sub-section (2) thereof, is an indication that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the NDPS Act ......."

After considering all these authorities, the Full Bench in Janta Singh''s case (supra) held as under (at page 1190-1191 of Cri LJ) :-

"From this point of view also, as Special Courts are not constituted u/s 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 u/s 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 up to 90/60 days to such person till Special Courts are constituted in the State of Punjab. As soon as the Special Courts are constituted u/s 36 of the Act, the Judicial/Executive Magistrate shall have power to grant remand only for 15/7 days as provided u/s 36A(1)(b) of the Act and thereafter the accused is to be forwarded to the Special Court u/s 36-A(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. (i) in these words :-

Till Special Court is constituted a Judicial Magistrate can give remand of the accused beyond a period of 15 days u/s 167 of the Code as he is empowered to exercise this power u/s 36A of the Act".

8A. 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) R C R 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 entitled 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 under trial Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. Union of India (UOI) and Others, . 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 sub-section (1) of Section 36D, any offence committed under the Act, until a Special Court is constituted u/s 36, shall be tried by the Court of Session".

It was, therefore, further observed :-

"Non-obstante clause in this provision makes it clear that until a Special Court is constituted u/s 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 non-obstante clause in Section 36D(1), all offences under the Act becomes triable by the Court of Session till the constitution of Special Courts".

8B. On that premise, the learned single Judge held :-

"In terms of Section 36-A(1)(c) 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 36-A(1)(c) 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. 259-M of 1997 (Baljinder Singh v. State of Punjab).

In Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane, Maharashtra and others, the Apex Court observed (at page 267; of AIR) :-

"........ 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 co-ordinate 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 Vs. A. Srinivasa Rao and Others, , the Apex Court observed :-

"A two-Judge Bench of this Court in Sub-Divisional Inspector of Post, Vaikam, and others Vs. Theyyam Joseph, etc.,, 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 Industrial Disputes Act, 1947. Incidentally, this decision was rendered without any reference to the seven-Judge Bench decision in Bangalore Water Supply (supra). In a later two-Judge Bench decision in Bombay Telephone Canteen Employees'' Association, Prabhadevi Telephone Exchange Vs. Union of India and another, , this decisions was followed for taking the view that the Telephone Nigam is not an ''industry''. Reliance was placed in Sub-Divisional Inspector of Post, Vaikam, and others Vs. Theyyam Joseph, etc.,, 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 sub-scribe 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 by pass 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 decisions in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, . We must, therefore, add that the decisions in Sub-Divisional Inspector of Post, Vaikam, and others Vs. Theyyam Joseph, etc.,, and Bombay Telephone Canteen Employees'' Association, Prabhadevi Telephone Exchange Vs. Union of India and another, 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 Bhatija''s case and General Manager Telecom''s case (supra), learned single Benches should have made a reference.

In Supreme Court Legal Aid Committee representing Under-trial Prisoners v. Union of India 1994 (3) RCR 639 : (AIR 1994 SCW 5115), 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 Sections 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 :-

"Non-obstante clause in this provision makes it clear that until a Special Court is constituted u/s 36, the Court of Session shall try any offence committed on or after the commencement of the Amendment 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 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 therefor, 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 sub-section (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 offence 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 1st Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrate would cease to have jurisdiction. Sub-section (1) of Section 36A overrides the provisions of the Code. 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. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the non-obstante 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 ....."

Their Lordships further held :-

"........ On a conjoint reading of Section 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 u/s 36. That is the thrust of Clause (a) of sub-section (1) of Section 36A. But the Legislature was aware that there may be a time-gap 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 u/s 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 well-settled 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 Kishun Singh and Others Vs. State of Bihar, ."

u/s 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. u/s 36-A(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 non-obstante clause in Section 36(D)(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 Vs. State of Bihar, , provisions of Sections 193 and 209 of the Code and various other judgments to the Apex Court were considered. The Apex Court held as under :-

"........... There is a difference in the language of Sections 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 to the Court of Session the bar of Section 193 is lifted, thereby investing the Court of Session 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 Vs. State of Bihar and another, 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 I Cri L R 740 : AIR 1995 SCW 1493 (SC). The 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 pre-charge trial and after charge trial. Trial beings 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 to 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 36-A(1)(b), wherein power to grant remand is given to the Magistrate u/s 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 Court 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 36-D(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 u/s 36-A(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 u/s 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 u/s 36-A(1)(c) and (d) also. In the procedural law, there cannot be any lacuna. u/s 36-A(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 sub-section (1) of Section 36A report 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 36-A(1)(c) and (d) would make it clear that till Special Courts are constituted, after the initial remand of 15 days by a Magistrate u/s 36-A(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 evidence 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.

It is also argued that if further remand beyond 15 days is granted by the Magistrate, it is in violation of Section 36-A(1)(b) of the Act and therefore, further detention of the accused becomes illegal and no that count also, accused is entitled to bail. Even this argument has no substance. u/s 36-A(1)(b) of the Act, the Magistrate is empowered to grant remand and in view of the judgment of the Full Bench in Janta Singh''s case (supra) he is empowered to grant even further remand till the challan is filed if Special Court is not constituted. On that premise, it cannot be said that when further remand is granted by the Magistrate; detention of the accused-petitioner becomes illegal or on that count, he is entitled to bail.

Coming to the case facts of the case, it is a case of heavy recovery. Thus, finding no merit in the bail petition, it is hereby dismissed.

Order accordingly.