Edgar Joseph Jr J:

In this revision, the sole question for decision was whether the learned Magistrate, Butterworth, was right in making an order, purportedly under s. 41A(1) of the Dangerous Drugs Act 1952 ("the Act"), whereby he transmitted to the High Court, for trial, the case of six accused persons - all Nigerian Nationals - whom he had previously remanded in custody on charges of trafficking in dangerous drugs, to wit, heroin, in contravention of s. 39B, notwithstanding that no prior consent or requisition of the Public Prosecutor for such transfer had been obtained.

In making that order the learned Magistrate had acceded to a submission by Counsel for the accused persons who, incidentally, was supported on this point by the prosecuting officer from the customs department.

The starting point of my enquiry must, of course, be s. 41A(1) which reads as follows:

(1) Where any case in respect of an offence under this act is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court, the accused person shall be produced before the appropriate subordinate Court which shall, after the charge has been explained to him, transmit the case to the High Court without holding a preliminary inquiry under Chapter XVII of the Criminal Procedure Code, and cause the accused person to appear or be brought before such Court as soon as may be practicable.

Clearly, if s. 41A(1) of the act is read in isolation, there are two events; namely, when the charge relates to an offence triable exclusively in the High Court or when the Public Prosecutor requires the accused to be tried in the High Court, either of which empowers the appropriate subordinate Court to transmit the case for trial in the High Court, without holding a preliminary enquiry under Chapter XVII of the Criminal Procedure Code . In making the order for transmission the learned Magistrate was no doubt swayed by the consideration that the offences charged being punishable on conviction by the mandatory sentence of death were triable exclusively in the High Court, and so there was no requirement for a prior consent or requisition.

It is well to remember the salutary advice of Gwyer CJ in re the Central Provinces and Berar Act No. XIV of 1938, 1939 FCR 18, 42:

A grant of power in general terms standing by itself would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by considerations arising out of what appears to be the general scheme of the Act.

To the same effect, were the words of Lord Wright in James v. Commonwealth of Australia [1936] AC 578, 613, when he said:

The question, then, is one of construction, and in the ultimate resort must be determined upon the actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another.

Having thus reminded myself as to the correct approach to be adopted in considering the question aforesaid, I would direct attention to s. 39B(3) and (4) of the Act which reads:

(3) A prosecution under this section shall not be instituted except by or with the consent of the Public Prosecutor:

Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody notwithstanding that the consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained.

(Emphasis supplied).

(4) When a person is brought before a Court under this section before the Public Prosecutor has consented to the prosecution the charge shall be explained to him but he shall not be called upon to plead, and the provisions of the law for the time being in force relating to criminal procedure shall be modified accordingly.

A preliminary question which arises is: when is