1994 Supreme(SC) 1017

SUPREME COURT OF INDIA
A.M. Ahmadi and B.L. Hansaria, JJ.
Writ Petition (Crl.) No. 307 of 1993
Decided On: 07.10.1994
Supreme Court Legal Aid Committee Representing Undertrial Prisoners Appellants
Vs.
Union of India (UOI) and Ors. Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Ranjit Kumar, Adv.
For Respondents/Defendant: A. Subba Rao, A.D.N. Rao, V.K. Verma and A.S. Bhasme, Advs.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 36A to 36D inserted by Amending Act No. 2 of 1989 Constitution of Special Courts - Transitional provisions - Scope and import - After insertion of these provisions, all offences under Act have to be tried by special court constituted u/s. 36 except those in relation whereto Session Court has already taken cognizance - During Transitional period between coming into force of these provisions w.e.f. 29th May, 1989 and Constitution of Special Court, offences committed under NDPS Act would be tried by Court of Session alone.

       Held Section 36 provides for the constitution of Special Courts and section 36A(1)(a) says that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. On a conjoint reading of these two provisions it becomes clear beyond any manner of doubt that once a Special Court (or more than one) has been constituted for an area or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other Courts exercising jurisdiction prior to the constitution of the Special Courts will cease to have jurisdiction. Sub-sections 36A (1)(a) and (d) which also begin with a non-obstante clause notwithstanding anything contained in the Code provide that a Special Court may, upon a perusal of the Police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the concerned Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to section 190 of the Code. It is clear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. That brings us to section 36D which is a transitional provision. Under sub-section (1) of Section 36D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted ,under section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under section 36, the Court of Session shall try any offence committed on or after the commencement of the Amending Act and no other Court including the Magistrates Court will have jurisdiction to try an offence under the Act. Sub-section (2) of Section 36D further provides that nothing in subsection (1) shall be construed to require the transfer to a Special Court of any proceeding in relation to an offence taken cognizance of by the Court of Session under sub-section (1) and the same shall be continued, heard and decided by the latter Court. As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29th May 1989, the offences under the Act were triable by different Courts under the Code depending on the punishments provided therefor. But after the introduction of this group of sections in the Act, the legislature, with a view to speeding up the trial provided for the constitution of a Special Court and until such Court was, constituted it provided by sub-section (1) of section 36B that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrates Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone and, therefore, the Courts of the Magistrate, 1st Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. Sub-section (1) of section 36-A overrides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since only the court of Session is empowered to deal with such cases. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the non-obstante clause in section 36D(l)(a), all offences under the Act become triable only by the Court of Session till the constitution of Special Courts and thereafter by the Special Court. Ordinarily therefore cases pending before the Court of Session by virtue of section 36D(1) would be transferred to the Special Court,. but sub-section (2) of section 36D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under sub-section (1) of section 36D that Court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by sub-section (2) of section 36D. On a conjoint reading of sections 36, 36A to 36b, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under section 36. That is the thrust of clause (a) of sub-section (1) of Section 36A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29th May, 1989 and the constitution of a Special Court. This period which is a transitional period is taken care of by section 36D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto tJ1e Sessions Court has already taken cognizance. (para 9)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 36A to 36D Constitution of Special Courts - When can a special Court be said to have been constituted?

       Held: Section 36 has two stages, namely; the first stage in regard to the constitution of Special Courts is by issuance of a notification in the Official Gazette and then comes the appointment of the individual to function as a Judge of the Special Court. Therefore, as, soon as the notification is issued under sub-section (l) of section 36 of the process of constitution of a Special Court commences and it is only thereafter that the Government can seek the concurrence of the hief Justice of the High Court for the appointment of a Judge of that Court. As stated earlier, only a person who has worked as a Sessions Judge or Additional Sessions Judge immediately before such appointment is qualified to be a Judge of the Special Court. This is the plain language of Section 36.

       But the question still survives whether the constitution of the Special Court can be said to be complete and effective only after the Judge to preside over the Court is appointed? The likelihood of a time-gap between the issuance of a notification under sub-section (1) of Section 36 and the appointment of a Judge to man the court has to be countenanced. This is evident from the facts of this case which show that the notification under section 36(1) was issued on 4th January, 1991 and the notification appointing Shri Pathan to man one of the two courts was issued on 6th April, 1991. Can the Special Court be said to have been constituted on 4th January, 1991, or on 6th April, 1991? Daud, J. opines that it could be said to have been constituted with effect from 6th April, 1991. (Paras 10 and 11)

       Further held: The provision as to the constitution of the Court at the initial stage as contemplated by section 36, must, therefore, be understood to mean that all its constituent elements of time, place and officers are complete and unless the Judge expected to mail the court is appointed the constitution cannot be said to be complete because the court cannot take off till then. The initial constitution becomes complete only when the requirements of both sub-sections (1) and (2) of section 36 have been completed. For these reasons we are in agreement with the view expressed by Daud, J. in this behalf. (Para 12)

       (iii) Constitution of India - Art. 32 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 36A to 36D and 37 - Delay in disposal of cases under the Act involving foreigners - Prayer for release on bailor to quash proceedings.

       Held: We have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, by further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be tele scoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then in the remedy? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time.

       We were told by the learned counsel for the State of Maharashtra that additional Special Courts have since been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases. We, therefore, direct as under:

       (i) Where the under-trial is accused of an offence (s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an under-trial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the concerned Special Judge with two sureties for like amount.

       (ii) Where the under-trial accused is charged with an offence (s) under the Act providing for punishment exceeding five years and fine, such an under-trial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50,000/- with two sureties for like amount.

       (iii) Where the under-trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment often years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

       (iv) Where an under-trial accused is charged for the commission of an offence punishable under sections 31 and 31A of the Act, such an under-trial shall not be entitled to be released on bail by virtue of this order.

       The directives in clause (i), (ii) and (iii) above shall be subject to the following general conditions:

       (i) the under-trial accused entitled to be released on bail shall deposit his passport with the learned Judge of the concerned Special Court and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the concerned Passport Officer to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the under-trial accused:

       (ii) the under-trial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the concerned Special Judge:

       (iii) the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned special Judge, for reasons to be stated in writing likely to temper with evidence or influence the prosecution witnesses;

       (iv) in the case of under-trial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appeal before the Special Court as and when required;

       (v) the under-trial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;

       (vi) the under-trial accused may furnish bail by depositing cash equal to the bail amount;

       (vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and

       (viii) after the release of the under-trial accused pursuant to this order, the cases of those under-trials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code. (Para 13)

       Further held: We are conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But at the same time we cannot be oblivious Jo. the fact that many innocent persons may also be languishing in jails if we recall to mind the percentage of acquittals. Since harsh punishments have been provided for under the Act, the percentage of disposals on plea of guilt is bound to be small; the State Government should, therefore, have realised the need for setting up sufficient number of Special Courts immediately after the amendment of the Act by Amendment Act 2 of 1989. Even after the Division Bench of the Bombay High Court refused to grant en bloc enlargement on bail on 1st February, 1993 in Criminal Application No. 3480 of 1992 and B.D. Criminal No. 565 of 1992, no substantial improvement in the pendency is shown since new cases continue to pour in, and therefore, a onetime exercise has become imperative to place the system on an evenkeel. We also recommend to the State Government to set up review Committees headed by a Judicial Officer, preferably a retired High Court Judge, with one or two other members to review the cases ofundertria1s who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the Court for withdrawal of such cases.

       This will not only help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertria1s who continue in jail despite this order on account of their inability to furnish bail. (Para 15)