Nachattar Singh vs State of Punjab

Sat Pal, J.

This petition has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (in short the Code) seeking bail pending trial in the case F.I.R. No. 66, dated 21st July 1995, registered at Police Station, Sherpur under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act).

As per allegations made in the complaint, the petitioner was apprehended on 21st July 1995 by a police party and as a result of his search, poppy husk weighing 32 Kgs. was recovered from him.

Mr. Jatana, learned counsel appearing on behalf of the petitioner, submitted that the petitioner was arrested on 21st July, 1995 and till date, the challan has not been presented and judicial remand in his case is being granted by the Ilaqa Magistrate. He submitted that the Judicial Magistrate could not grant remand beyond the period exceeding 15 days under clause (b) of subsection (1) of section 36A of the Act. He, therefore, contended that since in the present case, the Judicial Magistrate has granted remand exceeding 15 days, the order of remand granted by the Judicial Magistrate, beyond the period of 15 days is illegal and the petitioner was entitled to be released on bail.

Mr. Garg, learned AAG, appearing on behalf of the State, however, submitted that since in the State of Punjab, special Courts have not yet been constituted under Section 36 of the Act, the Judicial Magistrate can give remand of an accused for the period exceeding 15 days. In support of his submission, he placed reliance on a judgment in Cr.Misc. No. 9322M of 1993 (Janta Singh v. State of Punjab), rendered by a Full Bench of this Court on 21st September, 1995.

I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have perused the record.

The point with regard to the interpretation of Section 36A(1)(b) of the Act came up for consideration before a learned Single Judge of this Court in the case of Janta Singh (supra). The learned Single Judge, however, came to the conclusion that the matter be placed before Hon''ble the Chief Justice for referring the matter to a larger Bench. Accordingly, the matter was placed before a Division Bench of this Court. The Division Bench vide its order, dated 30th November, 1993, however, referred the matter to a Full Bench and framed the following question for adjudication by the Full Bench :

"Whether the Judicial Magistrate can give remand of the accused beyond a period of 15 days in all as indicated in Section 36A(1)(b) of the Act ?"

The Full Bench vide its judgment, dated 21st September, 1995, answered the question referred to above in the following words :

"Till Special Court is constituted, a Judicial Magistrate can give remand to an accused beyond the 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."

In the judgment, the Full Bench also observed that since the Special Courts have not been constituted under Section 36A of the Act, Judicial Magistrate has power to grant remand to a person accused or suspected of the commission of an offence under the Act and under Section 167(2) of the Code. 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 Undertrial Prisoners v. Union of India, 1994(3) Recent Criminal Reports 639 : 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 the Supreme Court Legal Aid Committee (supra).

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 Sessions. It was further observed that "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 non obstante clause in section 36D(1)(a), all offences under the Act become triable by the Court of Session till the constitution of special courts."

It was also held by the Supreme Court that subsection (1) of Section 36A overrides the provisions of the Code. 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 in the whole. Since in the present case, the Ilaqa Magistrate has authorised the detention of the petitioner exceeding 15 days and the remand with regard to the detention of the petitioner is still being granted by the Ilaqa Magistrate, prima facie I am of the view that provisions of Section 36A(1)(b) have been violated. Further keeping in view the aforesaid fact and also keeping in view the recovery, i.e. only 32 kgs. poppy husk, I am of the view that it is a fit case for grant of bail. Accordingly, I direct that the petitioner shall be released on bail on furnishing bail bond in the sum of Rs. 25,000/ with two sureties in the like amount to the satisfaction of C.J.M., Sangrur. This order shall be subject to the following conditions :

(i) The petitioner shall deposit his passport with the learned Sessions Judge concerned/Special Court and it he does not hold a passport, he shall file an affidavit to that effect; and

(ii) The petitioner shall not leave the District except with the permission of the learned District and Sessions Judge/Special Judge.