1. Dispute regarding the date of constitution of Special Courts under the NDPS Act and the legality of prolonged detention of undertrials without speedy trial. (Para 6 , 15 )
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1994 Supreme(SC) 1024
SUPREME COURT OF INDIA
SUPREME COURT LEGAL AID COMMITTEE
VERSUS
Union of India
DECIDED ON: October 7, 1994
A Special Court under the NDPS Act is constituted only upon both notification and appointment of a Judge. Furthermore, inordinate trial delays violate Article 21, entitling certain undertrials to bail after serving half the maximum punishment for their offence to ensure a fair and speedy trial.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Code of Criminal Procedure, 1973 - Enactment received Presidents assent on 16/9/1985 - Narcotic drugs - Convicted - Dictionary of Act is to be found in Section 2 thereof. Section 2 (xxix) says that words and expressions used in Act and not defined but defined in Code of Criminal Procedure, 1973, hereinafter called " Code", shall have meanings assigned to them in Code - Act is divided into six Ch. comprising 83 sections. Since in the instant case we are concerned with only a few provisions we need not examine scheme of Act - We had an occasion to examine scheme of Act in some detail in Raj Kumar Karwal v. Union of India. Ch. IV defines offences and prescribes stringent punishments, with minimum punishments and fines for them - For certain offences punishment prescribed can extend to rigorous imprisonment for 20 years and a fine of Rupees two lakhs, with a minimum rigorous imprisonment of 10 years and a fine of Rupees one lakh. By Section 37 offences punishable under the Act are made cognizable and non-bailable - Held, menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But at the same time we cannot be oblivious to the fact that many innocent persons may also be languishing in jails if we recall to mind the percentage of acquittals - Also recommend to State government to set up Review Committees headed by a Judicial Officer, preferably a retired High court Judge, with one or two other members to review cases of undertrials who have been in jail for long including those released under this order and to recommend to State government which of cases deserve withdrawal - State government can then advise Public Prosecutor to move court for withdrawal of such cases - This will not only help reduce pendency but will also increase credibility of the prosecuting agency – Court direct notices to issue to these States through their Chief Secretaries to furnish information in the pro forma appended hereto to enable this court to decide if similar action is called for – Direction issued.
Act Referred
Legal Category Hierarchy
- crime and sentencing
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constitutional law
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fundamental rights
- right to speedy trial (Para 15)
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fundamental rights
- practice and procedure
Table of Contents
2. Whether a Special Court is constituted upon notification of its creation or upon appointment of a judge, and whether delayed trials justify release on bail. (Para 6 , 15 )
3. A court's initial constitution requires the appointment of a judge to be complete; prolonged detention without trial violates the right to a fair and speedy trial. (Para 14 , 15 )
4. Initial constitution of a Special Court is complete only upon appointment of a judge; Article 21 mandates release on bail if trial is unduly delayed. (Para 14 , 15 )
5. Special Court constituted upon judge's appointment; undertrials serving half the maximum sentence released on bail subject to specific conditions. (Para 14 , 15 )
6. When is a Special Court under Section 36 of the NDPS Act considered legally constituted?
The initial constitution of a Special Court is complete only when both the notification of the court's existence under Section 36(1) and the appointment of a judge under Section 36(2) are completed, as a court cannot function without a presiding officer. (Para 12 , 13 , 14 )
7. What is the effect of Section 36-D regarding the transitional period before a Special Court is constituted?
Offences committed on or after the Amendment Act's commencement, until a Special Court is constituted, are triable by a court of Session. Cases where the Session court has already taken cognizance during this period need not be transferred to the Special Court. (Para 4 , 11 )
8. How does the right to a speedy trial under Article 21 interact with the strict bail conditions of Section 37 of the NDPS Act?
While Section 37 provides strict conditions for bail, the right to a speedy trial under Article 21 justifies release on bail when detention becomes unduly long, specifically after an undertrial has served half the maximum punishment provided for the offence. (Para 15 )
9. Can a Special Court take cognizance of an offence without a committal order from a Magistrate?
Yes, under Section 36-A(1)(d), a Special Court may take cognizance of an offence upon a police report or a complaint by an authorized officer without the accused being committed to it for trial. (Para 11 )
JUDGMENT
AHMADI, J.
( 1 ) THE Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985, hereinafter alluded to as "the Act", was enacted inter alia to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. The enactment received the Presidents assent on 16/9/1985. The dictionary of the Act is to be found in Section 2 thereof. Section 2 (xxix) says that words and expressions used in the Act and not defined but defined in the Code of Criminal Procedure, 1973, hereinafter called "the Code", shall have the meanings assigned to them in the Code. The Act is divided into six Ch. comprising 83 sections. Since in the instant case we are concerned with only a few provisions we need not examine the scheme of the Act. We had an occasion to examine the scheme of the Act in some detail in Raj Kumar Karwal v. Union of India. Ch. IV defines the offences and prescribes stringent punishments, with minimum punishments and fines for them. For certain offences the punishment prescribed can extend to rigorous imprisonment for 20 years and a fine of Rupees two lakhs, with a minimum rigorous imprisonment of 10 years and a fine of Rupees one lakh. By Section 37 offences punishable under the Act are made cognizable and non-bailable. Where the offender is accused of an offence punishable with imprisonment of 5 years or more, the section provides that he shall not be released on bail or on his own bond unless (i) the Public Prosecutor has had an opportunity to oppose the bail and (ii) if bail is opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty and is not likely to indulge in the commission of similar offences.
( 2 ) BY Amending Act No. 2 of 1989, styled as the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, far-reaching changes came to be made in the Act. This Amending Act came into force with effect from 29/5/1989, vide S. O. 379 (E) of even date. By this Amending Act the punishment prescribed under the newly added Section 31-A for certain offences extended to death penalty also. Section 36 came to be replaced by anew provision and S. 36-A to 36-D were inserted for the first time. The substituted Section 36, insofar as relevant for our purpose reads thus :"36. Constitution of Special courts. (1 The government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special courts as may be necessary for such areas as may be specified in the notification. (2 A Special court shall consist of a Single Judge who shall be appointed by the government with the concurrence of the Chief Justice of the High court. "only a Sessions Judge or an Additional Sessions Judge is eligible to be appointed a Special Judge. Under Section 36-A, all offences under the Act shall be triable only by the Special court constituted for the area in which the commission of the offence has taken place. This provision overrides the provisions in the Code. Section 36-B clarifies that appeals and revisions from the orders passed by the Special courts shall lie to the High court as if they were passed by a Sessions court. Section 36-C provides for the application of the provisions of the Code to proceedings before the Special court as if the Special court is a court of Session, unless the Act provides otherwise. We then come to Section 36-D which may be reproduced at this stage. It reads:"36-D. Transitional Provisions. (1 Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special court is constituted under Section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974, be tried by a court of Session : Provided that offences punishable under S. 26, 27 and 32 may be tried summarily. (2 Nothing
