K.P. Sudheendran and Another vs State

M.M. Pareed Pillay, J.—The first point to be answered is as to whether a Judicial Magistrate before whom an accused is produced on the allegation that he has committed an offence punishable under the Narcotic Drugs and Psychotropic Substances Act (for short ''N.D.P.S. Act'') can authorise , his detention for a period exceeding 15 days. Section 36A of the N.D.P.S. Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):

(a) all offences under the 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 the Act is forwarded to a Magistrate under Sub-section (2) of Sub-section (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 an Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

The proviso envisages that where Magistrate considers when such person is forwarded to him or 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. Contention that in certain cases detention of tie accused may become necessary by the Magistrate before whom the accused has been produced and in such circumstances he can extend the remand for a period exceeding 15 days is not tenable as the Special Court to which the accused will have to be forwarded is clothed with ample powers to deal with any situation. Reference to Section 36A(c) makes the position clear. It enables the Special Court to 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 u/s 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. Thus, Special Court to which accused has been forwarded can very well extend the remand period to meet demand of particular situations. The scheme of the section admits of no doubt With regard to the powers of the Special Court. A reading of Section 36A would show that the accused who has been produced before the Magistrate will have to be sent to the Special Court and the Special Court gets Jurisdiction in the matter thereafter. If that be so, there is no necessity for the detention of the accused before the Magistrate beyond the maximum remand. period of 15 days. In view of Section 36A stipulating a period of 15 days for the remand and as the Magistrate has forward the accused to the Special Court before the period of detention authorised by him and as the Special Court gets the seizing over the matter, it cannot be said that the Magistrate can extend the period of remand in a case where the accused has been brought before him for offences under the N.D.P.S. Act.

The next point to be considered is as to whether a Magistrate is bound to forward the accused to the Special Court if one is constituted and to the Court of Sessions if a Special Court is not so constituted. This point is answered by a decision of this Court in State of Kerala v. Balakrishnan 1991 (2) KLT 323. This Court held:

Section 36D is a transitional provision and it mandates that until a special court is constituted u/s 36D any offence committed under the Act shall be tried by a Court of Session. Power u/s 36D has been given notwithstanding anything contained in the Code. It may also noticed that Section 4(2) of the Code Specifically states that all offences under any law other than Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place investigating, inquiring into, trying or otherwise dealing with such offence. It is important to note that the purpose and object of the enactment of the Act is to have a speedy trial of all offences. That is why the special courts are allowed to, take cognizance of the offence, without there being a committal proceedings. So, the Court of Session empowered to try the case during the transitional period shall be deemed to be a special court having power u/s 36A(i)(d) of the Act to take cognizance of the police report or upon a complaint made by an officer of the Central or State Government authorised in this behalf. Section 193 of the code as no application as the entire trial is conducted in accordance with the provisions of the Act. The Court of Session by virtue of the provisions contained in Section 36D of the Act is competent to exercise, the power under Clause (c) and (d) of Sub-section (1) of Section 36A of the Act, as if it is a special court constituted u/s 36D of the Act. The Court of Session empowered u/s 36D of the Act can take cognizance of the offence without there being a committal proceeding and the method of taking cognizance in the manner laid down in Sections 190 and 193 of the Code is not applicable to the Sessions Court trying offences u/s 36D of the Act.

In view of the above decision, there is nothing more to expatiate.

The third point to be considered is whether an accused who has been detained beyond a period of 15 days can be granted bail notwithstanding the provisions of the N.D.P.S. Act by invoking Section 482 of the Code of Criminal Procedure or under Article 226 of the constitution. As the correct legal position is that die Magistrate cannot remand him for a period more than 15 days, this point is only of theoretical importance. Moreover the whole matter came before the learned Single judge on a reference by the Sessions Judge u/s 395(2) Code of Criminal Procedure. This question did hot actually arise before the Sessions Judge and in fact it cannot also arise before him. There was no petition either u/s 482 Code of Criminal Procedure or under Article 226 of the Constitution. In such circumstances We consider that it will be only appropriate that the said question be considered as and when jurisdiction u/s 482 Code of Criminal Procedure or under Article 226 of the constitution is invoked.

Reference answered as above.