IMPORTANT POINT
Power of the Magistrate to remand an accused under N.D.P.S. Act is determined and controlled by section 36-A (1)(b) of the Act & not by section 167, Cr. P.C.

JUDGMENT

Mahinder Narain, J. - Rakesh Kumar has filed this habeas corpus petition, seeking a direction for his release from the illegal detention in the Central Prison, Tihar, Delhi, The petitioner also seeks a declaration that the petitioner is not liable to be prosecuted pursuant to F.I.R. No. 523 of 1992 dated 30.10.1992 of police station Pachim Vihar, New Delhi.

The petitioner states that he is entitled to his release from detention, and the respondents Are not entitled to prosecute him under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (Act No. 61 of 1985), for allegedly having been found in possession of one Kg. of opium at about 5.30 P.M. at bus stand of route No. 883, Outer Ring Road crossing of Vikaspuri, New Delhi.

2. It is the case of the petitioner that the petitioner was produced before Mr. Prem Kumar, Metropolitan Magistrate on 31.10.1992, who directed the petitioner's detention in judicial custody for a period of ten days, where after the petitioner was lodged in Central Jail, Tihar. The petitioner further avers that thereafter the said Metropolitan Magistrate successively authorised the detention of the petitioner in judicial custody for 14 days on each occasion, and that the last time the Metropolitan Magistrate granted judicial remand of the petitioner, was on 11.12.1992, for a

period of 14 days.

3. The petitioner in support of his case for entitlement of writ of habeas corpus for illegal detention, relies upon the provisions of amended section 36-A to 36-D of the Narcotic Drugs & Psychotropic Substances Act, 1985, which was amended by means of an amending Act 2 of 1989, by section 11 of the Amending Act, amendments having come into force w.e.f 29.05.1989. The provisions of section 36-A to 36-D of the amended Narcotic Drugs & Psychotropic Substances Act read as under:

36-A. Offences triable by Special Courts.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them is may be specified in this behalf by the Government.

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in a whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that where such Magistrate considers

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention, authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the special court, having jurisdiction;

(c) the special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) in, relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offences without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Not