The Magistrate has the power to grant remand till the challan is filed if the Special Court is not constituted, and the further detention of the accused is not illegal.

1. By this order, both the Criminal Miscellaneous Petitions 27097-M and 29255-M of 1997 are being decided as the subject-matter involved in both these petitions is identical in nature.

2. Petitioners learned counsel contended that on 10-8-1997, police party stopped truck No. HR-25-0769 by giving a signal; two persons jumping from the truck ran away; they could not be arrested, but they were identified by Raj Kumar as Teeta son of Meet Singh and Sibba sonof Meet. The other persons, who were found in the truck were petitioner-Harbans Singh who was driving the truck and Sarabjit Singh was sitting by his side; four other persons were sitting in the truck, whose names were Jita, Rana, Sokha and petitioner Pala. They were asked whether they would like to be searched before a Magistrate or Gazetted Officer, they declined such an offer and expressed that the police officer apprehending them by taking their search; no independent witness was joined. The prosecution has alleged that 75 bags containing 40 kgs of poppy husk each were seized from the truck and on that basis this case is registered against these accused persons. Petitioners applied for bail before the learned Sessions Judge, which was declined.

3. Petitioners learned counsel vehemently argued that from the facts mentioned in the First Information Report, it is evident that both these petitioners were not in conscious possession of the alleged contraband. It is a case of heavy recovery, but despite that no independent witness was joined by the prosecution, which only indicates that they had been falsely implicated in this case. The learned counsel also submitted that challan was not presented within a p eriod of 90 days before the proper Court; therefore, the petitioners were entitled to bail under Section 167(2)(a) of the Code of Criminal Procedure. They were arrested on 10-8-1997; challan was presented in the Court of Shri Nirmal Singh, Judicial Magistrate I Class, Hoshiarpur on 28-8-1997. That Court had no jurisdiction to entertain the challan; later on the case was committed to the Court of Sessions on 11-11-1997 after the period of 90 days. The learned lower Court while dismissing the petitioners bail application failed to consider the law laid down in Baljinder Singh V/s. State of Punjab, (Criminal Misc. No. 259-M of 1997), Nachattar Singh V/s. Punjab State (Cri. Misc. No. 14722 M of 1995) as well as the law laid down by the Apex Court in Supreme Court Legal Aid Committee V/s. Union of India, 1994 (3) Recent Criminal Reports 639 : (1994 AIR SCW 5115). He also submitted that the remand was granted by the Judicial Magistrate beyond the period mentioned under Section 36-A(1)(b) of the NDPS Act. He also pointed out that joint offer was given by the police to these accused persons, which is inadmissible in evidence. Lastly, he contended that actual culprits have been let off by the police by declaring them as Proclaimed Offenders and the petitioners have been falsely implicated in this case.

4. Learned Deputy Advocate General, Punjab, contended that till the date challan was presented, Special Courts were not constituted by the State of Punjab; therefore, challan could have been presented in the Court of Magistrate only. In view of the Full Bench of this High Court in Janta Singh V/s. State of Punjab, 1996 (1) Recent Criminal Reports 1 : (1996 Cri LJ 1185) the Magistrate was competent to commit the case to the Court of Sessions.

5. After hearing the rival contentions, in my considered view, the point raised by the learned counsel requires a deep thrashing.

6. In Janta Singhs case (supra), the Full Bench of this Court has considered the provisions of Section 36-A(1)(a) to (d) of the Act, which are added by Amending Act No. 2 of 1989 with effect from 29-5-1989. Full Bench has considered various judgments of different High Courts and also of Natabar Parida Bisnu Charan Parida Bataknushna Parida Babaji Parida V/s. State of Orissa, 1975 Supp SCR 137 : (1975 Cri LJ 1212)