Section 37 of the NDPS Act overrides the provisions of section 167(2) of the Code, and no bail can be granted under section 167(2) unless the conditions under section 37 are satisfied.

ORDER

H.S. Brar, J. - Since a common question of fact and law is involved in all the six Criminal Miscellaneous Petitions (Nos. 13842-M of 1994, 13386-M of 1994, 13501-M of 1994. 13516-M of 1994, 13551-M of 1994 and 13776-M of 1994). 1 propose to dispose of the said petitions by this judgment.

2. In a nutshell, in all these petitions, the contention of the learned counsel for the petitioners is that section 36-A(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) has been contravened as the learned Judicial Magistrate did not forward the custody of the petitioners on expiry of 15th day to the Special Court and consequent further detention of the petitioners in judicial custody was rendered illegal and unauthorised (like a case of illegal and unauthorised detention of the accused under Section 167(2)(a) of the Code of Criminal Procedure, 1973 (No. 2 of 1974) (hereinafter called the Code) on the ground of non-submitting a charge-sheet within the prescribed limit of 90 days. It was then submitted that section 36-A(1)(b) of the NDPS Act not only expressly prohibits the detention of the accused in any manner whatsoever either in police custody of the judicial custody beyond the span of 15 days in the whole but the same further specifically directs the learned Magistrate to forward the custody of the accused to the Special Court. Thus, placing reliance on section 36-A(1)(b) of the NDPS Act, the learned counsel submits that by virtue of an express mandatory provision the accused cannot be kept even in judicial custody exceeding the prescribed statutory limit of 15 days, as after the expiry of the said period the petitioners accused were required to be forwarded to the Special Court and in the absence of it, to the Sessions Court as the case may be. Thus, any default in complying with the said provisions of section 36A(1)(b) of the NDPS Act being patently illegal, the petitioners were entitled to be released on bail forthwith. In order to substantiate the contentions, the learned counsel placed reliance on Criminal Miscellaneous No. 9322-M of 1993 in which a request has been made by a Learned Judge of this Court (vide order, dated August 17, 1993) to the Honble, the Chief Justice, for referring the matter to a larger Bench. The learned counsel asserted with one voice that the petitioners in all the aforementioned petitions are entitled to be set at liberty forthwith, in view of the Full Bench decision of the Kerala High Court in Berlin Joseph v. State, 1992 (ii) Crimes 353 and a Division Bench decision of the Delhi High Court in Rakesh Kumar v. State and others, 1994(1) C.L.R. 336.

3. It may be stated here that the question for determination before the Ful Bench of the Kerala High Court in Berlin Josephs case (supra) was, as to whether the conditions in section 37 of the NDPS Act for granting bail have overriding effect on the Proviso to section 167 of the Code and the interpretation of section 36-A (1) (b) of the NDPS Act was not an issue directly involved therein. While answering the above question, the learned Judges of the Kerala High Court had held that section 37 of the NDPC Act does not override section 167(2) of the coded and, thus, section 167(2) of the Code would operate even for offences under the NDPS, Act.

4. In Rakesh Kumars case (supra), it was held that the Judicial Magistrate had no power to authorise detention of a person accused or suspected of commission of an offence under the NDPS Act exceeding 15 days in the whole. The detention in excess of that period by the Judicial Magistrate by ordering repeated remand, was held to be illegal.

5. I cannot persuade myself to grant the concession of bail to the petitioners on the basis of arguments advanced as well as the authorities cited at the bar particularly till section 37 of the NDPS Act as interpreted by the Honble Supreme Court in Narcotics Control Bureau v. Kishan Lal and others, 1991(1) Recent C.R. 338 (SC) holding tha