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1993 Supreme(Raj) 245
High Court Of Rajasthan
Judgename : R.P.SAXENA
GURUBACHAN SINGH - Appellant
Versus
STATE OF RAJASTHAN - Respondent
S. B. CRI. M. P. 1028 Of 1993
Decided On : 08/03/1993
Arun Tyagi, S.K.Vyas
A Judicial Magistrate cannot remand an accused person for more than 15 days or take cognizance of an offense under the Narcotic Drugs and Psychotropic Substances Act, 1985. However, the accused is not entitled to bail under Section 167(2) of the CrPC if the challan is filed within 90 days of his arrest and the Special Court has already taken cognizance of the offense and framed charges against him.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 36A - JUDICIAL MAGISTRATE - JURISDICTION - DETENTION OF ACCUSED - COGNIZANCE OF OFFENCE - SPECIAL COURT - SEIZIN - SECTION 37 - BAIL - ENTITLEMENT.
Fact of the Case:
The petitioner was arrested for alleged possession of opium and a case was registered under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was remanded to judicial custody for more than 15 days by the Additional Chief Judicial Magistrate (ACJM). The ACJM also took cognizance of the offense and committed the case to the Additional Sessions Judge, who framed charges against the petitioner.
Finding of the Court:
The court held that the ACJM was not competent to remand the petitioner for more than 15 days or to take cognizance of the offense. However, the court also held that the petitioner was not entitled to bail under Section 167(2) of the Code of Criminal Procedure (CrPC) because the challan was filed within 90 days of his arrest and the Additional Sessions Judge had already taken cognizance of the offense and framed charges against him.
Issues: 1. Whether the ACJM had the jurisdiction to remand the petitioner for more than 15 days? 2. Whether the ACJM had the jurisdiction to take cognizance of the offense? 3. Whether the petitioner was entitled to bail under Section 167(2) of the CrPC?
Ratio Decidendi: 1. Under Section 36A(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, a Judicial Magistrate can authorize the detention of an accused person for a period not exceeding 15 days. 2. Under Section 36A(1)(c) of the Act, a Special Court has the same powers as a Magistrate in relation to an accused person forwarded to it under Section 36A(1)(b). 3. Under Section 36A(1)(d) of the Act, a Special Court can take cognizance of an offense without the accused being committed to it for trial. 4. Under Section 37 of the Act, a person accused of an offense under the Act is not entitled to bail if there are reasonable grounds for believing that he is guilty of the offense.
Final Decision: The court dismissed the petitioner's bail petition.
R. P. SAXENA, J.
( 1 )
( 2 ) PERUSED the relevant record.
( 3 ) THE petitioner was arrested on 4-1-l993 by the S. H. O. , Police Station, Sangaria for the alleged recovery of 4 kg. 800 gms. opium from his possession and a case under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) was registered against him. On 5-1-l993, he was produced before the Additional Chief Judicial Magistrate, Sangaria, who remanded him to judicial custody. After investigation a challan was filed on 25-1-1993 against the petitioner and two others namely Ram Niwas and Kamal Singh in the court of Additional Chief Judicial Magistrate, Sangaria, who remanded the accused persons to judicial custody from time to time. On 6-3-l993 he took cognizance of the offence under Sections 8/18 of the Act against the petitioner. On the same day he committed the case to the learned Additional Sessions Judge No. 1, Hanumangarh Camp Sangaria and remanded the petitioner to judicial custody with the direction he be produced in the said court on 18-3-1993. The learned Additional Sessions Judge No. 1, Hanumangarh took cognizance and also framed charge against the petitioner. That case is now fixed for recording the prosecution evidence.
( 4 ) THE petitioner filed a bail application in the court of learned Additional Sessions Judge No. 1, Hanumangarh, which was rejected by the impugned order dated 6-5-1993.
( 5 ) THE main thrust of the argument of Shri Arun Tyagi, the learned counsel for the petitioner, is that the learned Additional Chief Judicial Magistrate was neither authorised to remand the petitioner to judicial custody for a period of more than 15 days nor competent to take cognizance against the petitioner. According to him, the detention of the petitioner was illegal and as such he is entitled for bail under Section 167 (2) Cr. P. C.
( 6 ) MR. S. K. Vyas, the learned Public Prosecutor has contended that in this case the challan was filed within 90 days from the date of arrest of the petitioner and that the cognizance of the offence has already been taken by the learned Additional Sessions Judge No. 1, Hanumangarh, and that charge for the offence under Section 8/ 18 of the Act has also been framed against the petitioner. Therefore, in such circumstances even if the learned Additional Chief Judicial Magistrate was not competent to take cognizance of the said offence and to give remand for a period of more than 15 days, still then, the petitioner is not entitled for bail, keeping in view the provisions of Section 37 of the Act.
( 7 ) I have given my most anxious and thoughtful consideration to the rival contentions. It is true that under Section 36a (1) (b) of the Act, where a person accused of or suspected of the commission of an offence under the Act is forwarded to a Magistrate under sub-section (2) or sub-section (2a) of Section 167 of the Cr. P. C. such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is Judicial Magistrate and 7 days in the whole, where such Magistrate is an Executive Magistrate. If such Magistrate considers that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. Section 36a (1) (c) proclaims that notwithstanding anything contained in the Cr. P. 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 execise under Section 167 of the Cr. P. C. in relation to an accused person in such case, who has been forwarded to him. The Special Court is also authorised under Section 36a (1) (d) of the Act to take cognizance of such offence without the accused being committed to it for trial.
( 8 ) SHRI Tyagi has placed reliance on the following cases. In Mool Chand v. State of Rajasthan, 1992 Cr LR (Raj) 354, the
