TILL SPECIAL COURTS ARE CONSTITUTED, THE MAGISTRATE HAS POWER TO GRANT REMAND OF A PERSON ACCUSED OF OR SUSPECTED OF THE COMMISSION OF AN OFFENCE UNDER THIS ACT UNDER SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE AS HE IS EMPOWERED TO EXERCISE THIS POWER UNDER SECTION 36-A OF THE ACT.

Dr. Sarojnei Saksena, J. - Petitioner is claiming bail under Section 439 Criminal Procedure Code He is arrested on 16.9.1997 for an offence under Section 15 of the N.D.P.S. Act (for short the Act) on the allegation that he was having in his possession 20 kgs. 250 gms of Poppy Husk. Learned counsel for the petitioner contended that petitioner is 16 years of age but still he has not been released on bail despite Apex Courts judgment. He also submits that the contraband was sent to Chemical Examiner but as per Section 2(c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985, Chemical Examiner means the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or, as the case may be, Ghazipur. He also contended that the rules are made by the Central Government vide notification No. GSR 877(E) dated 14.11.1985. As per these rules, the appointment of a Chemical Examiner, for the purposes of analysis of N.D.P.S. contraband can only be made by the Central Government but in the present case the appointment of Chemical Examiner at Bhatinda has been made by the Punjab State. There is no mention in the Act that powers can also be delegated to the State. On that premise, learned counsel contends that report of the Chemical Examiner cannot be taken on record. Without that report, the petitioners custody is illegal and he is entitled to bail on this ground. He has relied on State of Himachal Pradesh v. Tek Ram, 1998(1) RCC 598.

2. Learned Counsel also contended that petitioner was continuously produced before the Illaqa Magistrate beyond a period of 15 days. Under the amended provisions of the Act, the Magistrate is entitled to grant remand only upto 15 days and thereafter Special Judge is authorised to grant remand. On that ground also, petitioners custody becomes illegal. To support this contention, he has relied on Nishan Singh v. State of Punjab, 1988(1) RCR 767.

3. After hearing the learned counsel, in my considered view, there is hardly any ground to grant bail to the petitioner. The petitioner has not placed on record copy of the report of the Chemical Examiner. Whether Chemical Examiner who has examined Opium can be said to be duly appointed Chemical Examiner can be only seen when evidence will be adduced by the prosecution. Further Rule 2(c) of the Rules defines Chemical Examiner but that is for the purpose of Chapter III of the said Rules for analysis of samples of lawfully cultivated and produced Opium. There is no provision in these Rules or in the Act debarring Chemical Analysis of unlawfully possessed Opium seized in connection with the offence elsewhere at any laboratory in the country. To hold this view, I am relying on Ram Dayal v. Central Narcotic Bureau, Gwalior, 1993(1) RCR 264.

4. Petitioner is facing trial under Section 15 of the Act. Contraband Poppy Husk was sent to the Chemical Examiner for analysis. Petitioner must have received the report also which is not produced. Hence, on this ground, the petitioner cannot be granted bail. Petitioner has not placed on record any document to show that he is a juvenile offender.

5. So far as the other ground is concerned, in Janta Singhs case (supra), 1996(1) R.C.R.(Crl.) 1 (FB), the Full Bench of this Court has held that till special Courts are constituted, the Magistrate is entitled to grant remand beyond 15 days under Section 36-A(i)(b) of the Act. Special Courts were not constituted when challan in this case was filed. Special Courts in Punjab are constituted vide notification of the Punjab Government No. 1/46//96-3 Judl (1)/607 dated March 24, 1998.

6. So far as reliance on Nishan Singhs case (supra) is concerned, it does not help the petitioner. Full Bench in Janta Singhs case (supra) 1996(1) RCR(Crl.) 1 (FB) still holds the field. There is no other larger Bench judgment contrary to it.

7. Further, the judgment given in Janta Singhs case (supra) was doubted by Single Benches in Baljinder Singh v. State of Punjab, Cr. M 259/M/1997 and Nachattar Singh