1994 Supreme(Del) 91

High Court Of Delhi
RAKESH KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
Criminal Miscellaneous 548 of 1992
Decided On : 02/09/1994

Headnote:1. Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 36A to 36D — Whether the enforcement of provisions of Section 36 of the Act without special Courts being constituted, the provisions of Section 36A to 36D will come into play — Whether in the transitory period under Section 36D the Magistrate has jurisdiction to remand an accused under Section 167 of Cr. P.C. — whether validity of the detention of the petitioner is to be determined on the day of return or even on the date of the hearing of the matter on merits ?

       2. Precedents — Decision of Supreme Court when binding on Courts discussed.

       In this writ petition referred to a Full Bench on a difference of opinion only two legal issues arose for consideration.

       Dismissing the writ petition, the court.

       Held: 1. The Parliament was very much aware that it will take some time for constituting the Special Courts in the country. It was, however, anxious that as the offences under the Act are very serious and grave and call for heavy dose of punishments, so it, in its wisdom provided that till the Special Courts are constituted, during the transit period, all the offences under the Act be tried by the Court of Sessions immediately on the enforcement of the provisions of Sections 36 and 36-A onwards. The Parliament has deliberately used the words "be tried by a Court of Session." The Parliament had not used the word that till the Special Courts are constituted, the offences "be dealt with by a Court of Session" or "the Courts of Sessions already existing and dealing with the cases under the N.D.P.S. Act be deemed to be the Special Courts for the purpose of provisions of the Act till Special Courts are constituted under Section 36 of the Act."

       2. There is a complete scheme carved out by the Parliament when it incorporated Section 36, 36-A to 36-D and Section 37. The perusal of these provisions makes it amply clear that on enforcement of these provisions, the Government for purposes of providing speedy trial of the offences under this Act, have to, by notification in the official gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. It is quite clear to us that unless and until the Special Courts are constituted under Section 36 of the Statute, there could arise no occasion for giving effect to the provisions of Section 36-A to section 36-C in as much as Section 36-D itself takes care of transitional period by laying down that till the Special Courts are constituted, the offences under the Act shall be tried by a Court of Session.

       3. Section 36-A(1)(b) itself contemplates that after the expiry of the 15 days of detention, initially given by a Magistrate, the Magistrate who has no jurisdiction either to deal with such an accused or to try such an accused has to forward such an accused to the Special Court having jurisdiction. If there is no special Court in existence, for one reason or the other, the provisions of Section 36-A(1)(b) as a whole could not be given effect to and that was not the intention of the Parliament that even in the transitional period till the Special Courts are constituted, the provisions of Section 36-A to 36-C could become operative.

       4. But that would not lead to any interpretation that despite the fact that no Special Courts have been constituted under Section 36 of the Act, the Magistrate is to exercise his powers only under Section 36-A(1)(b) of the Act. Section 36-A itself contemplates the forwarding of the suspect or the accused to a Special Court on the expiry of 15 days of detention as a whole authorised by a Magistrate. There being no Special Courts in existence, evidently this provision cannot be invoked by anyone.

       5. During the transition period till the Special Courts are constituted, Section 36-D clearly contemplates that the offences shall be tried by a Court of Session meaning thereby that a Court of Session shall try the offences in accordance with the provisions of the Code of Criminal Procedure and till the special Courts are constituted, the trial before the Court of Session can take place in accordance with the provisions of Code of Criminal Procedure which contemplate committal proceedings before the Session Court is seized of the case for trial. These amended provisions in the Statute have not made in applicable the provisions of Code of Criminal Procedure regarding committal proceedings during the transitory period. It is quite clear that the accused or the suspected persons, who are arrested for commission of any offences under the Act, have to be dealt with in accordance with the provisions of Code of Criminal Procedure till the Special Courts are constituted. If that is so, the Magistrate under the provisions of Section 167 of the Code of Criminal Procedure has ample powers to order detention of the accused or the suspected person for 15 days at a time in judicial custody and for 15 days as a whole in police custody.

       6. It is not possible to agree with the contention of the learned counsel for the respondent that the words appearing as a whole in Section 36-A(1)(b) would mean 15 days detention at a time.

       7. The intention of the Parliament was very clear that till the Special Courts are constituted, all the offences under the Act are to be tried by a Court of Session. The applicability of the provisions of the Code of Criminal Procedure, particularly the provisions of Section 167 were not made unenforceable during the transit period. There could not have been any difficulty in Parliament making its intention clear by using clear words that accused would be dealt with by a Court of Session till the Special Courts are constituted and Court of Session shall have power of Special Courts during the transitional period. The deliberate omission to use these words makes the mind of the Parliament clear that during the transitional period, only the offences under the Act are to be tried by the Court of Session and till Special Courts are constituted, obviously the accused or the persons suspected of commission of such offences are to be dealt with by the provisions of Code of Criminal Procedure and as soon as Special Courts are constituted, the accused and the persons suspected of having committed the offences under the Act are to be dealt with under the provisions of Section 36-A(1)(b) and (c) of the Act.

       8. This interpretation would lead to a harmonious construction of the provisions without doing any violence to the language used by the Parliament in various provisions referred above. Hence, till the Special Courts are constituted, the accused or the suspected persons arrested for commission of the offences under the Act are to be dealt with under the provisions of the Code of Criminal Procedure but they are to be tried by a Court Session. Under the provisions of Code of Criminal Procedure, the Metropolitan Magistrate has the jurisdiction and power under Section 167 to order detention of such accused to judicial custody for 15 days at a time till the challan is filed and the accused are committed to the Court of Session. In this view of the matter, the orders of detention of the petitioner passed by the Metropolitan Magistrate for detaining him for 15 days at a time in judicial custody are not vitiated with any illegality. However, as soon as the Special Courts are constituted, the Magistrate under Section 36-A(1)(b) would have only authority to order detention for 15 days as a whole and thereafter only Special Court shall have power to order detention of such accused or persons in custody by taking resort to provisions of Section 167 as contemplated by Section 36-A(1)(c).

       9. It is the settled principle of legal interpretation that the ratio laid down by the Supreme Court must be examined in the context in which it has been laid down. The ratio of law cannot be stretched to a particular situation which was never considered by the Supreme Court and which never came up for consideration before the Supreme Court.

       There is no dispute about the proposition of law that in case a particular ratio of law has been laid down, the same is binding on all the Courts and authorities in India and such a ratio of law cannot be whittled down on the plea that a particular point or argument was not raised before the Supreme Court.

       10. If up to the date of the hearing of the writ petition, it is shown that the detention of a particular person is valid presently, mere fact that his detention had been invalid earlier would not entitle such a petitioner to have any redress in habeas corpus petition.