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IN THE HIGH COURT OF ORISSA
G.B. Pattnaik, D.M. Patnaik, JJ.
BANKA DAS, RAMBALAK DAS, BIRENDRA KUMAR BEHERA AND SOUMITRI BEHERA - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revisions 243 and 245 of 1991 and Criminal Miscellaneous Case Nos. 954 and 955 of 1991
Decided On : 10-03-1992
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - INVESTIGATION - REMAND - BAIL - JURISDICTION - SPECIAL COURT - TRANSITIONAL PROVISIONS - INTERPRETATION.
Fact of the Case:
The case involved four criminal revisions and two criminal miscellaneous cases related to the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The accused in these cases challenged the jurisdiction of the Special Court to take cognizance of the offenses, the legality of the remand orders passed by the Magistrate, and the denial of bail.
Finding of the Court:
1. An Excise Official investigating an offense under the NDPS Act is not a Police Officer empowered to file a charge sheet. Instead, they must submit a report to the Special Court, which can take cognizance of the offense without the accused being committed to it for trial. 2. Where a report is not submitted within fifteen days, the Special Court has the jurisdiction to deal with the matter, even in the absence of a Special Court constituted under Section 36 of the Act. 3. A Magistrate cannot remand an accused beyond the permissible period of fifteen days. If the Magistrate considers the detention of the accused unnecessary, they can only forward the accused to the Special Court having jurisdiction. 4. The Special Court can exercise the power of remand of a Magistrate under Section 167 of the Code of Criminal Procedure (CrPC) in relation to a person forwarded to it under Section 36-A(1)(b) of the NDPS Act. 5. The provisions of Section 37 of the NDPS Act, which impose limitations on the grant of bail, apply to the High Court when exercising its power under Section 439 of the CrPC. The High Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that they are not likely to commit any offense while on bail. 6. The Court clarified that the power of the High Court to grant bail under Section 439 CrPC is subject to the limitations specified in Section 37(1)(b) of the NDPS Act. 7. The Court held that the provisions of Section 50 of the NDPS Act, which provide conditions for conducting searches of persons, do not impose an obligation on the officer conducting the search to inform the person to be searched of their right to be taken to a Gazetted Officer or a Magistrate before the search is conducted. 8. The Court held that the arrest and detention of the accused cannot be quashed by the High Court while considering an application for bail under Section 439 CrPC. 9. The Court clarified that a Magistrate cannot release an accused on bail after the expiry of the period provided in Section 36-A(1)(b) of the NDPS Act. 10. The Court held that until a Special Court is constituted under Section 36 of the NDPS Act, the Court of Session has the powers of a Special Court and can exercise the powers under Sections 36-A(1)(d) and (c) of the Act.
Issues: 1. Whether an Excise Official investigating an offense under the NDPS Act is a Police Officer empowered to file a charge sheet or must submit a report to the Special Court. 2. Which Court has jurisdiction to deal with a case where a report is not submitted within fifteen days, in the absence of a Special Court constituted under Section 36 of the Act. 3. Whether a Magistrate can remand an accused beyond the permissible period of fifteen days and, if not, whether the accused is automatically entitled to bail. 4. Whether a person can be forwarded to the Court of Session by a Magistrate under Section 36-A(1)(c) in the absence of any specific provision showing that the Court of Session shall be the Special Court for all purposes.
Ratio Decidendi: 1. The provisions of the NDPS Act, including Section 36-A, must be interpreted to achieve the object of the legislation, which is to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. 2. The provisions of Section 36-A(1)(b) of the NDPS Act do not confer all the powers of a Magistrate under Section 167 CrPC, including the power to release the accused on bail under the proviso to Section 167 CrPC. 3. The High Court's power to grant bail under Section 439 CrPC is subject to the limitations specified in Section 37(1)(b) of the NDPS Act, which require the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that they are not likely to commit any offense while on bail. 4. The provisions of Section 50 of the NDPS Act do not impose an obligation on the officer conducting the search to inform the person to be searched of their right to be taken to a Gazetted Officer or a Magistrate before the search is conducted. 5. The arrest and detention of the accused cannot be quashed by the High Court while considering an application for bail under Section 439 CrPC. 6. A Magistrate cannot release an accused on bail after the expiry of the period provided in Section 36-A(1)(b) of the NDPS Act. 7. Until a Special Court is constituted under Section 36 of the NDPS Act, the Court of Session has the powers of a Special Court and can exercise the powers under Sections 36-A(1)(d) and (c) of the Act.
Final Decision: The Court answered the questions posed by the referring Judge and clarified the legal principles applicable to the interpretation of the NDPS Act, particularly with regard to the powers of Excise Officials, the jurisdiction of the Special Court, the grant of bail, and the transitional provisions.
JUDGMENT :
G.B. Pattnaik, J. - The two Criminal Revisions and the two Criminal Misc. Cases had been placed before our learned brother Pasayat, J. Because of the importance of the questions involved and the impact of certain decisions of this Court with which brother Pasayat, J. did not prima facie agree, he has referred these cases to a Division Bench. The learned Single Judge has formulated four questions:
(1) Whether an excise official investigating into an offence under the Act is a Police Officer empowered to file a charge sheet or he is required to file a complaint u/s 190 of the Code of Criminal Procedure, 1973 (in short 'the Code')?
(2) In a case where the prosecution report is not submitted within fifteen days, which Court has jurisdiction to deal with the matter, in the absence of establishment of a Special Court constituted u/s 36 of the Act.
(3) Whether a remind beyond the aforesaid period is permissible by the Magistrate? In case such a remand is not permissible does the accused get bail automatically? In this context, reliance is made to a decision of this Court in Sauti Jena and Another Vs. State of Orissa. A learned single Judge of this Court observed that all considerations which apply in law to the question of enlargement on bail under the proviso to Section 167(2) of the Code become applicable to a person forwarded under the Act to the Magistrate after expiry of fifteen days or seven days from the date of remand, as the case may be.
(4) In the absence of any specific provision to show that the Court of Session shall be the Special Court for alt purposes, whether a person can be forwarded to it by a Magistrate in terms of Section 36-A(1)(c).
All these questions involve interpretation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act'). Before examining the questions posed, it would be appropriate for us to notice that the Parliament enacted the legislation to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances. Being cognisant with the large scale illicit drugs traffic and drug abuse at national and international level and finding several deficiencies in the law that was in force which was not sufficiently deterrent to meet the challenge of well organised gangs of drug traffics, the Parliament has enacted the legislation. The said legislation has provided deterrent punishment for drug trafficking offences. After the enactment of the legislation in the year 1985 when the legislature found that the offenders are being released on bail on technical grounds they felt the need to amend the law to further strengthen it and accordingly it was amended by Act 2 of 1989. The main objects of the amending Act are (i) to bring certain controlled substances which are used for manufacture of narcotic drugs and psychotropic substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof, (ii) to provide that no sentence awarded under the Act shall be suspended remitted or commuted, (iii) to provide for pre-trial disposal of seized drugs, (iv) to provide death penalty and second conviction in respect of specified offences involving specified quantities of certain drugs, (v) to provide for forfeiture of property and a detailed procedure relating to the same, (vi) to provide that the offences shall be cognizable and non-bailable. It is a cardinal principle of construction that the preamble of an Act contains in it the mischief which the Act seeks to be remedied and broadly describes the scope of the Act and consequently it is permissible to have recourse to it as an aid in construing the enacting provisions. Their Lordships of Supreme Court in the case of Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, observed :
"The primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or
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