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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE JANARTHANAM
P.R.Muthu
Versus
State represented by the Inspector of Police
Crl.O.P.No.1908 of 1992
Decided On : 27-02-1992
Held: Section 36-D of the Act relating to transitional provision makes a provision of trial of such offenders by a Court of Session. The said provision, as extracted earlier, would point out in no uncertain terms that the trial of such offenders State by the Court of Session is to proceed, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974). This non-obstante clause had been suffixed to the said section. The reason is obvious. As already indicated, a trial before a Court of Session under the Code cannot proceed without there being a commitment. In order to indicate that such a procedure is not contemplated for trial of offenders under this Act, in the Court of Session, the non-obstante clause had been specifically incorporated at the lag and of the said section.
The pregnant meaning of the non-obstante clause can be very well understood in the light of the other provisions contained in the Code as well as in the Act. As far as the offences against the other laws, as had been indicated earlier, unless such an offence is punishable with a minimum sentence of imprisonment of seven years, the trial cannot be held by a Court of Session. Admittedly under the Act, there are very many offences, which are punishable with imprisonment far below the level of seven years; but none-the-less, such of the offences under the Act are to be tried by the Special Court and in the absence of the constitution of a Special Court, by a Court of Session. As such, there is enough indication in the said section to override the specific provisions contained in the Code as to the trial of offences under this Act by a Court of Session. The said provision must be construed as a specific provision contained in a special law, as had been stated in Section 193 of the Code. (Paras 43 & 44)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985 as amended by Act 2 of 1989 - Sections 20(b), 36(A), 36-C & 36- D - Prosecution for offences under the Act - Initial remand of persons accused of offences under the Act cannot at all be made for a period exceeding fifteen days in the whole where such a Magistrate is a Judicial Magistrate and seven days in the whole, where such a Magistrate is an executive Magistrate - The Special Court or the Court of Session alone, as a Court of original jurisdiction have the power to extend the remand, after the expiry of the initial period of remand made by the Judicial or Executive Magistrate - If the initial remand made goes beyond the period prescribed, such a remand is without jurisdiction - Custody of the accused from that date becomes illegal and unlawful such a custody can be set aside by resorting to the revisional or inherent jurisdiction of this Court. (Paras 48 and 61)
Result: Petition disposed of accordingly. Copies of the order to be dispatched to the intended officers to seek compliance of the administrative instructions issued by the principal Sessions Judge.
On 2. 1992, the Inspector of Police, Rule 1 Police Station, Mambalam, Madras, along with other police personnel, was available near the bus stand at Mambalam doing bandol bust duty, in connection with some labour unrest, prevailing in that area. At about 17-20 hours, the petitioner herein, namely, P.R.Muthu, was stated to be found loitering near the bus stand under suspicious circumstances. The said Inspector of Police, suspecting some foul-play, was stated to have interrogated him and also searched his person. Such a search, it is said, revealed his having been found in possession of 750 grams of ganja. Immediately, it is said, he was taken into custody and a case in Cr.No.411 of 1982 of R-1 Police Station, Mambalam had been registered for the alleged offence under Sec.20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’). Lately, on the same day, it is said, he was remanded to judicial custody by the XVIII Metropolitan Magistrate, Saidapet, Madras for a total period of fifteen days that is to say, from 4th to 18th of February, 1992.
2. On 5th February, 1992, it is said, he moved an application in Crl.M.P.No.463 of 1992 for his release on bail before the Court of Session, Madras and the same had been dismissed on the next day, namely, 6th February, 1992.
.3. On the evening of the date itself, it is said, an application in Crl.O.P.No.1442 of 1992 had been filed before this Court for his release on bail and the same came up before this Court for enquiry on 7th February, 1992, on which date, after hearing the arguments of learned Government Advocate as well as learned counsel for the petitioner, the court passed an order, the operative portion of which is to the following effect:
."The petitioner is therefore ordered to be released on bail for a period of five days, on his executing a bound for a sum of Rs.5,000 (Rupees five thousand only) with two sureties, each for a like sum to the satisfaction of the XVIII Metropolitan Magistrate, Saidapet, Madras or any other Magistrate, who is put in charge of the said court. It is however made clear that the petitioner must have to surrender before the said court, on his own accord at 4 p.m. on 12. 1992 (Thursday) without fail."
4. It is further said in that order thus: "If the prosecuting agency is impelled to file an application before the said Magistrate for the police custody of the petitioner and in fact if such an application is filed, it is for learned Magistrate before whom such an application is to be filed, to decide about the desirability of police custody of the petitioner."
.5. The petitioner actually went on bail, by due execution of a bound on 2. 1992 and pursuant to the direction made in the order of this Court on the application for bail, he surrendered before the XVIII Metropolitan Magistrate, Saidapet, Madras on 12. 1992. On his surrender, the said learned Magistrate remanded him to judicial custody upto 18th February, 1992, in accord with the earlier order of remand made on 2. 1992.
.6. The investigation agency, it is said, filed an application on 12. 1992 before the said Magistrate, seeking police custody of the petitioner accused and the said application was said to have been posted for enquiry on If .2.1992. On that day, learned Assistant Public Prosecutor representing the prosecution made an endorsement in the application seeking for polks custody thus:
."Records perused. First 15 days Of remand period is over as on today. Hence I am not pressing this petition." Sd/-APPII i/c of Prohibition Cases 12. 1992".
7. Pursuant to the endorsement so made, learned Magistrate passed the order thus:
Sd/-12. 1992." thereby meaning that the petition is dismissed, as the same is not pressed.
8. On the same day, the investigating agency, it is said, filed a petition before the said Magistrate seeking extension of remand for a further period of fifteen days, inasmuch as the investigation in this case was to completed. It is better
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