Sharafat Ullah vs State of U.P.& Ors.

S.N. Sahay, J.—This is a petition under Article 226 of the Constitution for issuing a writ of habeas corpus to secure the release of the petitioner, who is under detention in Case Crime No. 217 of 1992, under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 of P. S, Jaidpur, district Bara Banki.

The case of the petitioner is that he was, arrested on 871992 by the police of P. S. Jaidpur, district Bara Banki in connection with the abovenoted case and since then he is in jail. After completion of investigation, the police filed a chargesheet on 7101992 before the learned Sessions Judge, Bara Banki who took cognizance of the offence on the same day. On 2211993 the learned Sessions Judge transferred the case to the Court of 111 Additional Sessions Judge, Bara Banki and at present the trial is pending before that Court. It is alleged that after receiving the case by transfer the learned Additional Sessions Judge did not pass any remand order under Section 309 Cr PC, which undisputedly governs the remand of an accused during trial. According to the petitioner the proviso to Section 309(2) requires that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time. The petitioner has submitted that in view of the above provision a remand cannot be granted for the entire period of trial but has to be given on each day of hearing on adjournment of the case. There is no order or direction from 2511993 remanding the petitioner to jail custody and hence the detention of the petitioner with effect from 2511993 is absolutely illegal. The petitioner has also alleged that his detention is illegal in view of the fact that the warrant of remand has not been issued in accordance with rules in the prescribed form. The petitioner has accordingly urged that he is in illegal detention and is entitled to be released unconditionally.

It may be mentioned that in the writ petition, it was also alleged that at the time of arrest the petitioner was not informed about the full particulars of the offence as required under Section 50 Cr PC and Article 22 of the Constitution and that the provisions of Sections 50, 51, 52 and 57 of the abovementioned Act were not complied with and so his detention is illegal. But these grounds were not pressed at the time of hearing of the writ petition.

It is stated in the counteraffidavit filed on behalf of respondent No. 2 that on the basis of the FIR lodged in the aforesaid case the petitioner was brought to District Jail, Bara Banki on 871992. After completion of investigation chargesheet was filed against him before the Court of Session at Bara Banki. It is further stated that on 2511993 the learned Sessions Judge while granting remand to the petitioner from 2511993 to 321993 transferred that case to the Court of III Additionals Sessions Judge, Bara Banki. There is no Special Court in Bara Banki for conducting trial of cases under the NDPS Act and, hence, the learned Sessions Judge has full power to try the case himself or transfer it to any other competent Court. The court was received by transfer on 3011993 in the Court of III Additional Sessions Judge, Bara banki and was directed to be put up on the date fixed, that is 321993. The remand under Section 309, Cr PC had already been granted by the learned Sessions Judge on 3011993 and hence, further remand was not at all necessary. On 321993 the learned III Additional Sessions Judge remanded the petitioner under Section 309, Cr PC till 1821993. It is further stated in Para 9 that the trial Court had not granted remand for the entire period of trial but is granting remand and fixing dates for examination of the witnesses on each date of hearing and there is no illegality in it. It is asserted in Para 10 that the learned III Additional Sessions Judge remanded the petitioner on each and every date on which he was produced in the Court. On the basis of these averments, it has been contended on behalf of the respondents that the detention of the petitioner is not illegal and he is not entitled for a writ of habeas corpus.

We have heard the learned Counsel for the parties at length, it may be observed at the outset that there is no force in the contention of the petitioner that the Sessions Judge has no jurisdiction to grant remand to an accused person under Section 309 (2) CrPC for a period exceeding 15 days at a time by reason of the first Proviso to that Section. The offences under the NDPS Act are normally, triable by the Special Courts constituted under Section 36 of the Act. But by virtue of the transitional provisions contained in Section 36D of the said Act any offence committed under the Act or after the commencement of the NDPS (Amendment) Act, 1988, until a Special Court is constituted under Section 36 shall notwithstanding anything contained in the Code of Criminal Procedure, be tried by a Court of Session. Thus, it is clear that a Sessions Judge while trying an offence under the said Act functions as a Court of Session and not as a Magistrate. Where it is intended that the power of the Magistrate shall be exercised by the Special Court under the Act, a clear provision has been made to that effect. The provisions of the first Proviso to Section 309 (2) are not attracted and, therefore, the Sessions Judge has jurisdiction to postpone or adjourn the trial at such terms as he thinks fit for such time as he considers reasonable and by a warrant to remand the accused if in custody as provided in the substantive provision therein. There is no dispute about the fact that Special Court has not been constituted in Bara Banki and so in the matter of remand under Section 309(2; CrPC it is not correct to say that the learned Sessions Judge cannot remand an accused person to custody under this section for a term exceeding IS days at a time.

The other contentions of the petitioner may now be dealt with. We find from a perusal of copy of the ordersheet, Annexure1 and also from the record of S.T. No. 159 of 1992 that on 7101992 chargesheet was received. It was directed that the case be registered and copies of documents may be got prepared and made available to the accused and the accused Sharafat Ullah be summoned for 25111992 and till then he may be kept in judicial custody (Abhiyukt Sharafatullah dinank 25111992 ko talab karke pesh kiya jaye. Tab tak nyayik abhiraksha main rahe.) On 25111992 the accused was produced and the copies of documents were furnished to the accused. He did not file vakalatnama and prayed for time. It was ordered that the case may be put up on 18121992 for framing of charge and till then the accused may be kept in judicial custody and he may also file vakalatnama on that date. On 18121992 the accused was brought in custody but as the Presiding Officer was on leave, it was directed that the case be put up on 2511993 for framing of charge and till then the accused be kept in judicial custody. On 2511993 the accused was brought in custody and the case was transferred to the Court of III A.D.J. for disposal and the accused was directed to appear there on 321993. The case was received by transfer in the Court of III Additional District and Sessions Judge on 3011993 The order was "Register and put up on date fixed". The case was taken up on 321993. The accused was brought in custody. The Advocates were abstaining from work. The Presiding Officer was on leave. Hence 1821993 was fixed for framing of charge and the accused was directed to be summoned for the date fixed. After that the case was taken up on various dates between 1821993 and 22 81994. The last entry in the ordersheet is dated 2281994, which reads as follows j

"Abhiyukt zer hiraaat upasthit hai. Adhivaktagan hartal par hai.

Aadesh

dinak 1941994 ko sakchhya avam 864 ke nistaran hetu pesh ho,"

In none of the orders recorded on the ordersheet between 1821993 and 2281994 there is any direction with regard to the remand of the accused although it is stated in some of the orders that the accused shall to produced on the date fixed.

The learned Counsel for the State has referred to the custody warrant, Annexure CA1 and has vehemently contended that it contains a direction that the accused shall be kept in judicial custody till the conclusion of trial and it is a sufficient warrant for respondent No. 2 (Superintendent, District Jail, Bara Banki) to keep the accused in custody. Perusal of the custody warrant Annexure CA1 will show that it was issued by the Sessions Judge, Bara Banki on 7101992 under Section 309 Cr PC and it reads as follows :

Abhiyukt Sharafatullah, umar 36 year putra Chand Khan, niwasi Vishambhar PUT Thana, Jila Gonda ke viruddha Ap. S. 217/92 Thana Jaidpur, P. S. Utraula main preshit aarop ke aadhar par es nyayalaya vad S, Dhara8/2l, N.D.P.S. Act, Thana Jaidpur, Jila Bara Banki ka sansiuti kiya gaya hai. Ukt vad ki vicharan hetu mere nyayalaya ke adheen hai. Ukt Abhiyukt nyayik hirasat main hai. Ukt abhiyukt ko uprokt vad main es nyayalaya main mukadma sampali tak apki abhiraksha main pratipreshit kiyajata hai ki aap ukt abhiyukt ko apni samyak hirasat main rakhate huye es warrant ke Calmn No. 5 main ankit tithiyon main es nyayalaya ke samaksha parastut karen."

There are various endorsements on the face as well as back of the custody warrant under the heading "Rimand S." "dinank ka adesh" and "dinank jish par abhiyukt upasthit kiya jay" indicating the date on which the accused is to be produced in Court. These endorsement are initialled, must be, by the Presiding Officer.

In view of Sunder Lal v. State, 1983 A CrC 140, and Muneshwar v. State, 1984 A CrC 368, there should have been no difficulty in accepting the contention of the learned Counsel of the State. But in the present case the terms of the custody warrant are against the specific orders passed by the learned Sessions Judge. It has been noticed that the custody warrant was issued on 7101992 and on that very date the chargesheet was received in Court and the learned Sessions Judge took cognizance of the case and remanded the accused with the specific direction that the accused shall be produced in Court on 25111992 and shall be kept in judicial custody till then. On 25111992 and 18121992 similar orders were passed and the accused was remanded to judicial custody till 18121992 and 2511993 respectively. On 25.11993 the case was transferred by the learned Sessions Judge to the Court of III Additional District and Sessions Judge with the simple direction that the accused shall appear in that Court on 321993. The learned Sessions Judge did not pass any specific order of remand on 2511993. The case was received by transfer in the Court of the III Additional District and Sessions Judge on 3011993 and, thereafter, no order was passed on any date remanding the accused to jail custody. on each and every date the only direction that was given by the learned 3rd Additional Sessions Judge was that the accused shall be brought from jail on the date rued and on 2281994 which is the last entry in the ordersheet, the direction has been given that 1991994 is fixed for evidence and for disposal of application B64. No order has been passed that the accused shall be kept in jail custody or shall be produced in Court on that date. In these circumstances, particularly, in view of the inconsistent orders passed on 7101992 with regard to the remand and custody of the accused, it cannot be said that the custody warrant contains a clear and unequivocal direction of the learned Sessions Judge that the accused is remanded to judicial custody and shall be kept in Jail during the entire period, ending with the conclusion of trial. The manner in which the endorsements have been made and initialled on the custody warrant creates some impression that the same has been issued in a routine and mechanical manner and the learned III Additional District and Sessions Judge has not taken care to ensure that proper orders are passed with regard to the remand and custody of the accused during trial. We have come to the conclusion that in the absence of appropriate orders, regarding remand and custody of the petitioner, the detention of the petitioner is illegal and his contention in that behalf is justified.

After arriving at the above conclusion, there is no option left for us but to direct that the petitioner shall be released in the abovementioned case. The writ petition is accordingly, allowed and it is directed that the petitioner shall be released in Case Crime No. 217 of 1992, under Section 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985 of P. S. Jaidpur, district Bara Banki and shall be set at liberty forthwith, unless he is wanted in some other case. It is, however, made clear that this order will not preclude the Court to take action against that petitioner in Criminal Trial No. 159 of 1992, pending in the Court of the III Additional District and Sessions Judge, Bara Banki and to take the petitioner again in custody subject to bail or otherwise and to pass appropriate orders in that behalf in accordance with law in case the Court in satisfied that in the facts and circumstances of the case it is necessary to do so.