IMPORTANT POINT
Provisions of Section 167 (2) of the Code of Criminal Procedure are applicable to persons sought to be prosecuted for having committed offences under the provisions of the N.D.P.S. Act.

Headnote:Criminal Procedure Code, 1973 - Section 107 (2) - Narcotic Drugsand Psychotropic Substances Act, 1985 - Section 37 (1) - Entitlement to bail of persons prosecuted under N.D.P.S. Act - Default in not laying a complaint within 90 days from date of arrest of person accused of an offence under N.D.P.S. Act - Applicability of provisions of Sec. 167 (2)- Whether provisions of Section 167 (2) will be applicable to offenders under N.D.P.S. Act ? - (Yes) (Hitendra Vishnu Thakur's case, 1994 S.C.C. (Crl.) 1087 : Relied on)
       Held: It is apparent from Section 36-A (1)(b), that the person accused of or suspected of commission of an offence, under this Act, when forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167, Cr. P.C., a Judicial Magistrate may authorise detention of such person, in such custody, as he thought fit, for a period not exceeding fifteen days in the whole, while the maximum period to which an Executive Magistrate would be entitled to direct custody would stand restricted to seven days. Under the proviso to Section 36-(1) (b) of the Act, if the Magistrate considered, at two stages contemplated therein, that the detention of such person was unnecessary, he shall have to order production of su.ch person before the Special court having jurisdiction. Sub-clause (c) of this Section is very relevant, for item viewer’s exercise of same powers, by Special Courts, of the Magistrate having jurisdiction to try a case, in exercise of Section 167 of the Code of Criminal Procedure, in relation to an accused person who had been forwarded to him under the said Section. It is clear under this sub-clause, that all the powers exercisable by a Magistrate under Section 167, Cr. P.C. can be exercised by a Special Court in relation to a person forwarded to it under Clause (b). There is no exclusion of the provisions of Section 167 (2) of the Code of Criminal Procedure under sub-clause (c) afore-stated. On the contrary, powers exercisable by the Magistrate under Section 167, Cr. P.C. stand preserved, to be exercised by the Special Court. This is the only power of remand, that we are able to comprehend under the Act, which, in turn, has its foundation, on the provisions of Section 167 of the Code of Criminal Procedure. If it was the intention of the Legislature to provide special powers of remand to Special Courts under the special enactment, it would have specifically stated so, in which event recourse to, general law will stand prohibited. Such a contingency does not arise here, for there is no other specific provision for remand of an accused after the expiry of 60 days or 90 days, as the case, may be, more so, when the said person is prepared to and does furnish bail. We are unable to accede to the submission made by Mr. Asokan that we have to read into Section 36-A (1) (c) of the Act, provisions of Section 37 of the Act, which refer to grant of bail, apparently on the merits of the case. (Para l3)
       Further Held: We are unable to find any legislative intent prohibiting the Special Court from exercising the same power, which necessarily includes all the powers which a Magistrate having jurisdiction to try a case will be competent to exercise under Section 167-(2) of the Code of Criminal Procedure. If we were to uphold the contention of Mr. Asokan, that in view of the use of the word "may" in sub-clause (c), discretion was that of the Magistrate, then the consequence would rather be appalling, for then there would be no guidelines as to the circumstances under which a Magistrate could exercise his discretionary power and the arena in which he could refuse to exercise such power. If the person concerned does not offer bail, then the position would certainly be different, as has been clarified by Explanation 1 to Section 167 (2), Cr. P.C. (Para 13)
       It is evident that till bail is furnished, extension of remand is feasible under Section 167 (2) of the Code of Criminal Procedure, while power to extend remand after the specified period under this section in the event of non-filing of final report or a complaint, as the case may be, within that specified period, would entitle the said person to be released mandatory on bail in the event of his being prepared to and in fact furnishing bail. In such an event, it has to be held, that a Special Court, which will step into the shoes of the Magistrate under Section 36-A (1) (c) of the Act, ceases to have any power of extension of remand in such a contingency. If it was the intention of the Legislature that the limitations prescribed under Section 37 of the Act in the process of granting bail, would also have to prevail in case of bail on default, such intention would have been specifically expressed. No doubt, the objects of the Act vis-a-vis stringent provisions enacted, cannot be overlooked by Courts. But, once it has to be conceded on the basis of the law laid down by the highest Court of the land, that at the stage of default bail, merits of the case do not enter into the arena, but only default by the prosecution would be the sale criterion, it would be odd to contend, that provisions of section 37 of the Act will have to be read as an in-built provision in Section 36-A of the Act. (Para 13)
       Consequently Held: the Special Court must be deemed to be a Magistrate, and then the provisions of Section 167 (2) of the Code will have to work itself out. (Para 16)
       Result: Ordered accordingly. Detenus released on bail on terms and conditions specified.

ORDER

Arunachalam, J. - A common question of law has been urged before us in all these three Habeas Corpus Petitions and hence it would be better to dispose of all these petitions through a common order. H.C.P. No. 1676 of 1994 is capable of being disposed of on factual material, without legal ramifications, affecting its termination.

2. Facts in H.C.P. 1675 of 1994: Petitioner Thamizharasi is the wife of Arumugham, whose liberty she has coveted in this Habeas Corpus Petition, alleging that he has been kept under illegal detention in Central Prison, Madras, on and after 27.9.1994. The averments in her affidavit show that Arumugham was arrested on 27.6.1994 from his residence. Neither document nor contraband stood recovered from him. However, it is alleged by the prosecution that he is involved in the export of Certain narcotic drugs which were seized in a foreign country. Arumugham was remanded to judicial custody on 26.8.1994. Every 14 days, remand was being extended. The period of 90 days expired on 27.9.1994 and even by then the respondent had not preferred any complaint. Arumugham had earlier preferred a bail application seeking his release, but the same was dismissed on 24.7.1994. A second application for bail was moved by him, which was pending at or about the time when the 90 days period expired. According to her affidavit, it was specifically argued before the Special Judge that the detenu was ready to furnish surety and hence he may be enlarged on bail, since the respondent had defaulted in filing the complaint within a period of 90 days. However, the bail plea of the detenu was negative and remand was extended.

3. Facts in H.C.P. No. 1692 of 1994: Petitioner Vijayalakshmi is the wife of Y.V. Nagaraj, who has been similarly detained, in Central Prison, Madras, as detenu Arumugham, concerned in H.C.P. No. 1675 of 1994. It is also evident, that Arumugham and Nagaraj are concerned in the same crime. It appears that Nagaraj was preventively detained by an order of detention clamped under the provisions of P.I.T. N.D.P.S. Act. We were informed by counsel on either side that the said preventive order has since been quashed by this Court and the respondent had taken up the matter to the Supreme Court. As in H.C.P. No. 1675 of 1994, Y.V. Nagaraj was also arrested on 27.6.1994 and the period of 90 days expired on 27.9.1994. A bail application was preferred on behalf of Nagaraj before the Special Court seeking release on bail on default made. by the respondent in filing the complaint. Bail plea was negative while remand was directed to be continued. The dismissal of the latest bail application was on 12.10.1994. It appears that the learned Special Judge was not inclined to act under the proviso to Section 167 (2) of the Code of Criminal Procedure, in view of the pronouncement of a learned single Judge of this Court in Seemaraj & two others v. Asst. Collector Central Excise1 holding that proviso to sub-section (2) of Section 167, Cr. P.C. will have no application, where a person has been charged, under any of the offences falling within the scope of Narcotic Drugs and Psychotropic Substances Act

4. Facts in H.C.P. No. 1676 of 1994: Petitioner Mohammad Shabeer is the detenu himself. He was arrested on 15.5.1993 for alleged commission of an offence punishable under the N.D.P.S. Act. The case of the prosecution appears to be that the petitioner was found traveling in a lorry from which heroin was seized. Arrest memo was served on the petitioner at 11.00 p.m. on 15.5.1993 and he was produced for remand only on 18.5.1993. His remand was extended from time to time. The 90 days period expired on 17.8.1993. Thereafter, the petitioner became entitled to grant of bail under proviso to Section 167 (2) of the Code of Criminal Procedure. Petitioner is now incarcerated in Central Prison, Salem. It is not in dispute, that complaint against the petitioner stood filed on 27.9.1993 and till such date, Petitioner had not chosen to exercise his

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IMPORTANT POINTProvisions of Section 167 (2) of the Code of Criminal Procedure are applicable to persons sought to be prosecuted for having committed offences under the provisions of the N.D.P.S. Act.

Cases Referred (4)

IMPORTANT POINT
Provisions of Section 167 (2) of the Code of Criminal Procedure are applicable to persons sought to be prosecuted for having committed offences under the provisions of the N.D.P.S. Act.