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2000 Supreme(Cal) 85
HIGH COURT OF CALCUTTA
Debiprasad Sengupta, J.
Md. Mzal alias Md. Siddique alias Mollah
vs.
Narcotics Control Bureau
C.R.R. No. 37 of 2000
Decided on : February 18, 2000
Advocate Appeared:
Sekhar Basu, Daya Sankar Mishra, Phiroze Edulji (or the petitioners;
Ashim Kr. Roy for Narcotics Control Bureau.
A detention without a valid order of remand is illegal and the court must make a written order remanding the accused to custody when adjourning a case.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 309 - REMAND - IRREGULARITIES - EFFECT ON DETENTION - PREVENTIVE DETENTION UNDER PITNDPS ACT, 1988 - EFFECT ON RELEASE - SCOPE OF INTERFERENCE BY HIGH COURT UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioners were arrested on 1st May, 1999 in connection with a case under the Narcotic Drugs and Psychotropic Substances Act, 1985. They were produced before the trial court on 14th December, 1999, and the court fixed dates for taking evidence from 11th January, 2000 to 21st January, 2000. The court also fixed 28th December, 1999 and 11th January, 2000 for production of the petitioners. On 28th December, 1999, the court did not sit and the petitioners were not produced. The petitioners challenged the orders of the trial court on the ground that they were not in compliance with the mandatory provisions of law and that the period of remand had exceeded the permissible limit of 15 days.
Finding of the Court:
The High Court held that the orders of the trial court suffered from serious illegality as there was no specific order of remand and the period of remand had exceeded 15 days. However, the court noted that the petitioners were at present under preventive detention under the PITNDPS Act, 1988 and therefore the question of their release did not arise at that stage.
Issues: 1. Whether the orders of the trial court remanding the petitioners to judicial custody were illegal? 2. Whether the petitioners were entitled to be released on the ground that the period of remand had exceeded 15 days? 3. Whether the High Court could interfere with the orders of the trial court under Article 227 of the Constitution of India?
Ratio Decidendi: 1. The High Court held that the orders of the trial court were illegal as they did not comply with the mandatory provisions of section 309 of the Code of Criminal Procedure, 1973, which requires the court to make a written order remanding the accused to custody when adjourning a case. 2. The High Court held that the petitioners were not entitled to be released on the ground that the period of remand had exceeded 15 days, as they were currently under preventive detention under the PITNDPS Act, 1988. 3. The High Court held that it had the power to interfere with the orders of the trial court under Article 227 of the Constitution of India, as the orders suffered from serious illegality.
Final Decision: The High Court disposed of the petition, but directed the trial court to be more careful in complying with the mandatory provisions of section 309 of the Code of Criminal Procedure, 1973.
Debiprasad Sengupta, J.:
1. This application under Article 227 of the Constitution of India is directed against two orders dated 16.11.99 and 14.12.99 passed by the 3rd Additional District and Sessions Judge, Howrah fixing production of the petitioners in court on 28th December, 1999 and 1st January, 2000 in total non-compliance of the provisions of law.
2. The present petitioners along with two others were made accused in a case being T.R. No.9 of 1999 (Crime No. 8/NCB/CAU99) which is now pending for commencement of trial in the court of 3rd Additional District and Sessions Judge, Howrah. Charges have already been framed by the learned Judge for commission of offences under sections 21, 29, 31, 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act"). Cognizance of the offence was taken on the basis of the petition of complaint lodged by one Ranjit Kumar Dutta, Intelligence Officer, Narcotic Control Bureau, Eastern Zonal Unit.
3. Both the petitioners were arrested in connection with the instant case on 1st May, 1999 and since then they are in custody.
4. Mr. Sekhar Basu learned Advocate appearing for the petitioners submits that in conducting the proceeding the learned Judge has failed to comply with the mandatory provisions of law and on more than one occasions the learned Judge has deviated from the compliance wit!. the procedure which are essential. Mr. Basu draws the attention of the court to the order dated 14th December, 1999. On the said date the petitioners and other two accused persons were produced before the learned Judge. On the said date a prayer was made on behalf of the accused petitioners for fixing the date of trial. The learned Judge after hearing the parties fixed dates for taking evidence starting from 11th January, 2000 and ending with 21st January, 2000. The learned Judge thereafter fixed 28th December, 1999 and 11th January, 2000 for production of the petitioners and other accused persons in court. Mr. Basu further submits that in both the orders there is no specific orde,r of remand. Even assuming that there is an order of remand, such order was passed for a period beyond 15 days, which is not permissible under the law. Mr. Basu further points out that on 28th December, 1999 the concernce court did not sit and the petitioners and other accused persons were not produced in court. Presently the detention of the petitioners in jail is without any warrant of remand and apart from that the period of remand had already exceeded the permissible limit of 15 days. Mr. Basu also draws the attention of the court to the earlier order dated 16th November, 1999 which commits the same mischief and violation of the same procedure of law, as it was done in the order dated 14th December, 1999 as stated above.
5. Mr. Basu submits that the form prescribed for warranting detention of an under trial prisoner in jail pursuant to the order of the court is a part of the procedure established by law and if such procedure is not strictly complied with by any court the order of detention of the person would be against the concept of liberty and its procedural safeguard guaranteed under Article 21 of the Constitution of India.
6. In support of his contention Mr. Basu relied on a judgment of the Apex Court reported in AIR 1953 SC 277, wherein it was held that detention of a person in custody after the expiry of the remand order, without any fresh order of remand committing him to further custody while adjourning the case under section 344 Cr.P. Code (section 309 of the New Code) is illegal.
7. Mr. Basu next relies on a judgment of the Apex Court reported in AIR 1969 SC 1014. He draws my attention to paragraphs 12 and 14 of the said judgment which runs as follows :-
"As stated in Ram Narayan Singh vs. State of Delhi, AIR 1953 SC 277 this court has often reiterated that those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their
