A Court of Session cannot take cognizance of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 without the accused being committed to it for trial.

JUDGMENT :

B.L. Hansaria, C.J. - These petitions challenge the legality of the detention of accused Govinda Sharma. (petitioner in 0. J. C. No. 6179/91--the other writ petition, namely, O. J,C. No. 5777/91 having been filed challenging the legality of the confinement of Govinda by his uncle (Bhagawan Singh) pursuant to remand orders passed by learned Sessions Judge, Botangir and seek Issuance of writ of habeas corpus to free the accused from illegal detention. The remand orders had come to be passed by Sessions Judge on Govinda being produced before hint in connection with a case registered against him u/s 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act"). The last order, which is dated 18-1-1991, had been, however, passed after taking cognizance of the offence.

2. The validity of the orders has been assailed on the ground that the Sessions Judge had no jurisdiction to paas the remand order before taking cognizance of the offence; and the remand order after taking cognizance is also unlawful as cognizance could not have been taken without the case being committed to the Sessions Judge for trial.

3. In so far as the power of ordering detention in custody prior to the taking of cognizance by the Sessions Judge is concerned, this Court had occasion to deal with the same in Criminal Misc. Case No. 986 of 1991 (Basanta Kumar Das v. State), disposed of on 22-11: 1991, wherein it was held that a Sessions Judge has no power to remand an accused to custody who has been arrested in connection with an offence under the Act in exercise of the power contemplated by Section 167 of the Code of Criminal Procedure, which power alone is available at a pre trial stage, before cognizance of the offence is taken by the Sessions Judge. As, however, the last remand order can be said to have been passed after cognizance of the offence had been taken, it has to be seen whether the Sessions Judge had the power and competence to take cognizance of the offence without the accused having been committed to his Court for trial. Examination of this aspect is necessary because in a habeas corpus proceeding, the relevance for determining whether the detention is legal or not is the date of return or the date of hearing, as pointed out in Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, .

4. As to the lack of power of a Court of Session to take cogni-zance of an offence without the case being committed to it, Shri Misra appearing for the petitioners submits that as a Court of Session has bean conferred with the power of only trying a case, until a Special Court is constituted, as provided in Section 36D(1) of the Act, the bar of taking cognizance of any offence by a Court of Session unless the case has been committed to it by a Magistrate, of which mention has been made in Section 193 of the Code of Criminal Procedure, will apply in as much as this bar has been removed by Section 36-A(d) of the Act only in so far as a Special Court is concerned. It is urged that if the Legislature would have desired taking cognizance of a case by a Court of Session without the accused being committed to it for trial, the same would have been expressly stated in Section 36-D(t) of the Act, as has been provided in Section 36-A(d) regarding trial by the Special Court.

5. Shri Das appearing for the State, however, contends that what is mentioned in Section 36-D (2) of the Act would clearly indicate that a Court of Session can also take cognizance of an offence; and the power of the Court of Session is not confined only to trial which begins when the prosecutor opens his case by describing the charge, as mentioned in Section 226 of the Code of Criminal Procedure.

6. For appreciating the aforesaid submissions of the learned counsel, it would be opposite to note Section 36-D of the Act-

"36-D. Transitional provisions--(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendmen