Suryakant Ramdas More & others vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 228

IN THE HIGH COURT OF BOMBAY
M.S. Deshpande. J.
Suryakant Ramdas More others ... Applicants.
Versus
State of Maharashtra ... Respondent.
Criminal Application No. 1973 of 1989, decided on 28-8-1989.
Advocates appeared :
H.H. Ponda with A.C. Dharmadhikari, for applicants.
B.R. Patil, A.P.P., for State.
A.R. Gupte, Spl. P.P. for Intervenor (Union of India).

Headnote:Sections 36, 36 A and 36-D (as amended in 1988) -Jurisdiction to take recognizance-Magistrate having no such jurisdiction cannot authorise detention for more than 15 days- Accused with such illegal detention is entitled to be released on bail-Special court has jurisdiction.
       Session Judge pending establishment of Special Court will have all powers and duties of Special Court. It is thus apparent that by virtue of Section. 36 and 36-A read, together a Magistrate will not have a jurisdiction to take cognizance of the offences where Special Court is constituted. Even otherwise the provisions of Section 36-A clearly oust the jurisdiction of the Magistrate to authorise the detention beyond the period of 15 days and to take cognizance.
       In the absence of a clear definition defining the connotation of the words be tried a restricted meaning cannot be given to the expression and since the power is to be exercised by the court of Session when a Special Court is not constituted, evidently the intention of the Legislation could not have been to leave a void but to invest the Court of Session with the same powers which the special court will have under the provision s of the Act.
       Sections 36, 36-A, 36-D-Special Court-Cognizance of case by Court of Sessions-Where special court not established Court of Sessions can take cognizance -Magistrate can not detain a person in excess of 15 day-Held, as the person was detained for more than said period, his detention is un-authorised.
       The proviso cannot restrict the scope of the main provisions and if there nothing in the test of the sub-section (I) of Section 36-D to justify a narrow construction, the expression "notwithstanding anything contained in the Code of Criminal Procedure" cannot be restricted only to the category of the cases of which cognizance can be taken by the Court of Session. It will take in even the procedural part of it. Sub-section (2) lends support to this interpretation because it says that nothing in sub-section (I) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session under the said sub-section (I) and the same shall be heard and disposed of by the Court of Se3Sions. The object of constituting Special Courts was to eliminate the delays and the other hurdles which might come in the way, if a regular procedure as prescribed under the Code of Criminal Procedure were to be followed. The every fact that in the event of Special Court taking cognizance, an order committing the case to it is found unnecessary and the Special Court gets seized of the matter immediately upon the receipt of the Police Report or a complaint and has all the powers to authorise detention beyond the period of IS days, at pointers, to this. It is there are, not possible to accept the submission that in the event of a Special Court not being established, the Court of Session can take cognizance only after the case is committed to it. This is further apparent from the provision that cognizance by a Magistrate of the offence under the Act has been entirely excluded. If this were the position in respect of the Special Court established under the Act, the question is whether the .Court of Session would have the same powers and obligations as of the Special Court by virtue of the transitional provision of Section 36-0 of the Act.

JUDGMENT - M.S. DESHPANDE, J.:---In this bail application by the three applicants, who came to be arrested under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, a few points of some importance arise for consideration and it would be expedient to set our a few facts.

2. The applicants were arrested on June 24, 1989 and were produced before the Metropolitan Magistrate, 12th Court, Bandra, Bombay on the next day. A remand was granted. The first remand was for 12 days and thereafter for 10 days. On July 12, 1989, the applicants filed an application for being released on bail and pending consideration that application, they came to be produced before the Additional Sessions Judge, Great Bombay, on July 17, 1989 and since then they came to be remanded from time to time. An application for bail presented by them, raising several contentions came to be considered by the learned Additional Sessions Judge and was decided on August 7, 1989, holding that he has invested with the powers of the Special Court to be established under section 36 of the Act, by virtue of the provisions of section 36-D as amended and that he was, therefore, competent to grant remand and hold the trial. The charge-sheet has not yet been filed against the applicants, but the application for bail which was presented before the learned Additional Sessions Judge was rejected in the view of the law taken by the learned Judge as well as on the merits.

3. The first point urged by Shri Ponda, the learned Counsel for the applicants is that in view of the clear provisions of section 36-A(1)(d) of the Act, the Magistrate should not have passed an order authorising detention of the applicants for a period exceeding 15 days and since he authorised detention for a period exceeding 15 days, the detention was wholly unauthorised. Secondly, it is urged that the powers conferred on the Court of Session under section 36-D(1) of the Act were restricted to holding the trial by the Court of Sessions until a Special Court is constituted under section 36 and section 36-D cannot be construed to confer on the Court of Session the powers which have been conferred on the Special Court under section 36-A(1)(c) of the Act.

4. The Narcotic Drugs and Psychotropic Substances Act, 1985 (No. 61 of 1985) has enacted elaborate provisions for consolidating and amending the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. Chapter II prescribes the authorities and officers for the enforcement of the Act, Chapter III deals with prohibition, control and regulation, Chapter IV prescribes offences and penalties and Chapter V lays down the procedure for the various duties that have to be performed for enforcing the provisions of the Act. The provisions of the Code of Criminal Procedure, 1973 by virtue of section 51 apply to warrants, arrests, searches and seizures, but the Act otherwise prescribes an elaborate code for giving effect to the policy underlying the legislation. The Act was amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 which received the assent of the President on 6th January, 1989 and was published in the Gazette of India, dated January 9, 1989. Since the Scheme of the Act must receive consideration while construing the provisions which were under attack, it would be useful to refer to a few recitals in the Statement of Objects and Reasons for the amendment, viz. that the country has been facing a problem of transit traffic in illicit drugs; the spill-over from such traffic has caused problems of abuse and addition and though the Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences and the major offences are non- bailable, by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail and

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