Section 167(2) of the Code of Criminal Procedure, limiting detention without a charge sheet to 60 days, does not apply to complaint cases tried by a Special Court under the Narcotic Drugs and Psychotropic Substances Act.

B.P. Singh & R.M. Prasad, JJ.

The petitioner has filed the instant writ petition for a direction that the petitioner be released forthwith in view of the provision of section 167(2) of the Code of Criminal Procedure. His grievance is that petition under the aforesaid provision was filed on 2-12-1998, but the learned Sessions Judge did not pass any order either accepting or rejecting the application.

2. The crucial question that arises for consideration in this writ petition is whether the provision of section 167 (2) of the Code of Criminal Procedure at all applies to the case of the petitioner.

3. It is not disputed that the petitioner is an accused in Special Case No. C.I-2/98 arising out of Katihar Unit Case No. 24 of 1998 dated 12.9.98 for having allegeldy committed an offence punishable under section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985. The case of the prosecution is that the petitioner was arrested on 11.9.1998 on National Highway No. 31 when found in possession of 240 Kgs of Ganja. The Ganja recovered from the possession of the petitioner was seized, and a complaint was lodged by the Inspector of Customs before the Sessions Judge, Katihar, on 12.9.1998 against the petitioner for violation of section 8 of the aforesaid Act read with section 20(b) of the Act. It is not disputed that the court of Sessions Judge, Katihar is constituted as Special Court' under section 36 of the Act for the trial of offences under the Act.

4. From the order sheet of the court of Sessions Judge it appears that the petitioner was produced before the Special Judge on 12.9.1998, when he was remanded to custody till 26th September 1998. The court had asked for the relevant documents, and it appears that those documents were received by the court on 21.9.1998. After perusing the original documents, such as seizure list etc. the documents were directed to be kept in the file and the file was directed to be put up on 26th September, 1998, which was the date fixed in the case. It appears that earlier on 16.9.1998 the petitioner had filed an application for his release on bail, but that was rejected by the Sessions Judge by order dated 5.10.1998. It also appears from the order sheet of the court of Sessions Judge that the application preferred by the petitioner before the High Court for grant of bail was also rejected subsequently. The matter is now pending before the court of Sessions Judge. The prosecution has been directed to produce its witnesses for examination before the court. It is the case of the petitioner that so far no charge sheet has been submitted by the police and, therefore, the detention of the petitioner beyond the period of sixty days from the date of his arrest is hit by section 167 (2) of the Code of Criminal Procedure. Since the offence alleged against the petitioner is punishable with imprisonment for maximum period of five years, the police should have submitted its report/charge sheet before the court within sixty days of the date of his arrest which has not been done.

5. Counsel for the respondents or the other hand, contends that section 167(2) of the Code has no application to the case of the petitioner, because the petitioner is being tried in a complaint case by the Special Court and there is no question of police investigating the case or submitting a police report under section 173 of the Code of Criminal Procedure.

6. On a mere perusal of section 167 of the Code of Criminal Procedure it would be apparent that the section deals with investigation of a case by the police and pending investigation of the case the power of remand vested in the Magistrate. Sub-section (2) of section 167 of the Code places limitation on the power of the Magistrate to pass an order of remand authorising detention of an accused in custody, if the police report upon completion of the investigation is not submitted within a period of ninety days if the investigation relates to an offence punishable with death, impr