State vs Fagu Mallik and Others

B.L. Hansaria, C.J.—It having come to the notice of this Court that persons accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter called the Act'' have been released on bail on the ground that such accused cannot be remanded to custody beyond a period of fifteen days by a Judicial Magistrate and a Sessions Judge cannot exercise the power of remand inasmuch as he can only try an offence till Special Court is constituted as stated in Section 36-D of the Act, suo motu cognizance was taken to examine the legality of the aforesaid orders of release on bail. As the Act has been enacted to take care of the growing menace of drug traffic- king and drug-addiction, a need was felt to examine whether the mandatory provisions finding place in Section 37 of the Act stating as to when a person accused of offences under the Act can be released on bail can become inoperative due to aforesaid reason.

The ground finding place in these orders having, however, raised an important question, it was desired that these cases should be placed before a Bench of the Court to lay down the law in this regard authoritatively.

In so far as the powers of the Magistrate is concerned, of which mention has been made in Clause (b)of Sub-section (1) of Section 36-A of the Act, the same has already been decided by a Bench of this Court in OJC No. 4668 of 1993 (Bimbadhar Behera v. State of Orissa) judgment in which was rendered on 12-8-1993, according to which the Magistrate has power to remand even beyond ninety days, not to speak fifteen days, as is the view expressed in the impugned orders. This was so stated by referring to what has been laid down by a Full Bench of this Court in Banka Das, Rambalak Das, Birendra Kumar Behera and Soumitri Behera Vs. State of Orissa, .

As to the power of Sessions Judge Shri Das, learned Government Advocate, submits that this question as well stands answered by what has been observed in Banka''s case (supra). Our attention has been invited to what has been stated by two learned majority Judges at pages 413, 418, 419 and 421 of the report,a combined reading of which would show that the power of the Sessions Judge, till constitution of Special Court, is not confined merely to ''try'' the case, but he would have all the powers conferred on the Special Court by the Act. This was the view expressed in P. R. Muthu v. State, 1992(1) Crimes 1038 by a learned Single Judge of the Madras High Court; so also in State of Kerala v. Balakrishnan 1991 (2) KLT 323 which have been taken note of and approved by the Full Bench. In Balakrishnan''s case, it has been clearly stated that the Court of Session by virtue of the provisions contained in Section 36-D would be competent to exercise the power under Clauses (c) and (d) of Sub-section (1) of Section 36-A of the Act, as if it is the Special Court constituted u/s 36 of the Act,

It would be apposite to refer to what was held in Muthu''s case in this regard in paragraph 61, the relevant portions of which reads as below :

"(1) The initial remand cannot at all be made for a period beyond fifteen days in the whole, where such a Magistrate is a Judicial Magistrate and seven days in the whole where such a Magistrate is an Executive Magistrate;

(2) If such person is forwarded to such Magistrate, upon or at any time before the expiry of the period of detention authorised by him and if the Magistrate feels that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction, if constituted; or otherwise to the Court of Session, until the constitution of a Special Court;

(3) A Court of Session, for all practical purposes, would be placed on par with the Special Court having all the powers and functions of such a Court ; "

As the judgment of the Full Bench was not available by the time the impugned orders were passed, we have not felt inclined to set aside those orders; more so, because more than one year has since elapsed. All the Sessions Judges of the State would, however, while dealing with such cases, bear in mind what has been stated in this order.

The proceedings are, therefore closed with the aforesaid observations. Let a copy of this order be sent by the Registrary to all the Sessions Judges.

R.K. Patra, J.

I agree.