1. In this bail application by the three applicants, who came to be arrested under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, a few points of some importance arise for consideration and it would be expedient to set out a few facts.
2. The applicants were arrested on June 24, 1989 and were produced before the Metropolitan Magistrate, 12th Court, Bandra, Bombay, on the next day. A remand was granted. The first remand was for 12 days and thereafter for 10 days. On July 12, 1989, the applicants filed an application for being released on bail and pending consideration of that application, they came to be produced before the Additional Sessions Judge, Greater Bombay, on July 17, 1989, and since then they came to be remanded from time to time. An application for bail, presented by them, raising several contentions came to be considered by the learned Additional Sessions Judge and was decided on August 7, 1989, holding that he was invested with the powers of the Special Court to be established under section 36 of the Act, by virtue of the provisions of section 36d as amended and that he was, therefore, competent to grant remand and hold the trial. The chargesheet has not as yet been filed against the applicants, but the application for bail which was presented before the learned Additional Sessions Judge was rejected in the view of the law taken by the learned Judge as well as on the merits. The first point urged by Shri Ponda, the learned counsel for the applicants is that in view of the clear provisions of section 36a(1)(d) of the Act, the Magistrate should not have passed an order authorising detention of the applicants for a period exceeding 15 days and since he authorised detention for a period exceeding 15 days, the detention was wholly unauthorised. Secondly, it is urged that the powers conferred on the Court of Session under section 36D(1) of the Act were restricted to holding the trial by the Court of Session until a Special Court is constituted under section 36 and section 36d cannot be construed to confer on the Court of Session the powers which have been conferred on the Special Court under section 36A(1)(c) of the Act.
3. The Narcotic Drugs and Psychotropic Substances Act, 1985 (No. 61 of 1985) has enacted elaborate provisions for consolidating and amending the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. Chapter II prescribes the authorities and officers for the enforcement of the Act, Chapter III deals with prohibition, control and regulation, Chapter IV prescribes offences and penalties and Chapter V lays down the procedure for the various duties that have to be performed for enforcing the provisions of the Act. The provisions of the Code of Criminal Procedure, 1973 by virtue of section 51 apply to warrants, arrests, searches and seizures, but the Act otherwise prescribes an elaborate code for giving effect to the policy underlying the legislation. The Act was amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 which received the assent of the President on 6th January, 1989 and was published in the Gazette of India, dated January 9, 1989. Since the Scheme of the Act must receive consideration while construing the provisions which were under attack, it would be useful to refer to a few recitals in the Statement of Objects and Reasons for the amendment, viz., that the country has been facing a problem of transit traffic in illicit drugs; the spill-over from such traffic has caused problems of abuse and addition and though the Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences and the major offences are non-bailable, by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail and the need to amend the law to further strengthen it was felt. It is not necessary to set out all the details given in the Statement of Objects and Reasons, except pointing out that one of them was to bring the offenders to speedy trial.
4. Under section 36(1) the Government was authorised to constitute as many special Courts as may be necessary and the Special Court is to consist of a single Judge to be appointed by the Government with the concurrence of the Chief Justice of the High Court. Under section 36a(1)(a) all offences under this 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. A procedure different from the one in the matter of authorising detention in the Code of Criminal Procedure has been provided by clause (b) and the Magistrate can authorise detention of a person suspected of the commission of an offence, in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate. It is noteworthy that a Judicial Magistrate cannot grant remand for a period exceeding 15 days which he can do otherwise under section 167 of the Code of Criminal Procedure and is obliged even if he considers the detention of the person to be unnecessary, to order such person to be forwarded to the Special Court having jurisdiction. If further detention is necessary, that power has to be exercised under clause (c) by the Special Court, in relation to the person forwarded to it under clause (b) and he shall have the same power which a magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, in relation to an accused person in such case who has been forwarded to him under that section. Under clause (d) a Special Court may, upon a perusal of police support of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. It is thus apparent that by virtue of sections 36 and 36A read together, a Magistrate will not have jurisdiction to take cognizance of the offences where a Special Court is constituted. Even otherwise the provisions of section 36a clearly oust the jurisdiction of the Magistrate to authorise the detention beyond the period of 15 days and to take cognizance. The matter, therefore, has invariably to go in respect of the offences committed on or after the Amendment Act came into force to the Special Court. Under sub-section (2) of section 36a, the Special Court is authorised to take cognizance of the offences other than those committed under this Act, if such offences are brought to its notice in respect of the accused who has been forwarded to it.
5. Under section 36C, the provisions of the Code of Criminal Procedure save as otherwise provided shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. It is in the light of the foregoing provisions that the ambit of the provision of section 36d has to be understood because until a Special Court is constituted under section 36, notwithstanding anything contained in the Code of Criminal Procedure, any offence committed under this Act on or after the commencement of the Amendment Act has to be tried by the Court of Session. The contention on behalf of the applicants was that the Act does not do away with the requirement of the case being committed to the Court of Session if a Special Court is not constituted and the non-obstante clause has reference only to the category of offences and not to the procedure for taking cognizance for holding the trial and this is made clear by the proviso to sub-section (1) which enables the Court of Session to try the offences punishable under sections 26, 27 and-32 summarily. It is difficult to agree with the submission of Shri Ponda that the non-obstante clause has reference only to the offences enumerated in the First Schedule to the Code of Criminal Procedure which has reference to the categories of cases which are made cognizable by the Magistrate and the Court of Session respectively, and not to the procedure prescribed for taking cognizance of the offences. The proviso cannot restrict the scope of the main provisions and if there is nothing in the text of the sub-section (1) of Section 36-D to justify a narrow construction, the expression “notwithstanding anything contained in the Code of Criminal Procedure” cannot be restricted only to the category of the cases of which cognizance can be taken by the Court of Session. It will take in even the procedural part of it. Sub-section (2) lends support to this interpretation because it says that nothing in sub-section (1) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session under the said sub-section (1) and the same shall be heard and disposed of by the Court of Session. The object of constituting Special Courts was to eliminate the delays and the other hurdles which might come in the way, if a regular procedure as prescribed under the Code of Criminal Procedure were to be followed. The very fact that in the event of Special Court taking cognizance, an order committing the case to it is found unnecessary and the Special Court gets seized of the matter immediately upon the receipt of the Police Report or a complaint and has all the powers to authorise detention beyond the period of 15 days, are pointers, to this. It is, therefore, not possible to accept the submission that in the event of a Special Court not being established, the Court of Session can take cognizance only after the case is committed to it. This is further apparent from the provision that cognizance by a Magistrate of the offence under the Act has been entirely excluded. If this were the position in respect of the Special Court established under the Act, the question is whether the Court of Session would have the same powers and obligations as of the Special Court by virtue of the transitional provision of Section 36-D of the Act.
6. According to Shri Ponda, Section 36-D would enable the Court of Session only to try the offender and the other powers which the Special Court has are not available to the Court of Session. He urged that the expression “be tried by the Court of Sessions” has to be given its literal meaning and read accordingly it would only mean that after the case comes before the Court of Session, it can only hold the trial. I am afraid the scheme of the Act to which I have made somewhat detailed reference does not support this contention. The word ‘trial’ has not been defined in the present Act and I may refer to the observation of the Supreme Court in State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389 where while considering the language of section 494, Criminal Procedure Code and in relation to the distinction between inquiry and trial, it was pointed out that there is hardly anything in the definition of ‘inquiry’ under section 4(k) of the Code of Criminal Procedure which throws light on the question whether the word ‘trial’ is used in the relevant section in a limited sense as excluding an inquiry and it was observed:
“The word ‘trial’ is not defined in the Code. ‘Trial’ according to Stroud's Judicial Dictionary means “the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal”, and according to Wharton's Law Lexicon means “the hearing of a cause, civil or criminal, before a Judge who has jurisdiction over it, according to the laws of the land”. The words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.”
7. While dealing with the scheme of Criminal Law (Amendment) Act, 1952 in State of Tamil Nadu v. V. Krishnaswami Naidu, (1979) 4 SCC 5 : AIR 1979 SC 1255. It was observed that:
“The Special Judge in the Criminal Law (Amendment) Act is for some purposes deemed to be a Sessions Judge and for some other purposes deemed to be a Magistrate and some powers exercised by the Magistrate are conferred on him. The Special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under section 8(3) except as regards the provisions in sub-sections (1) and (2) the provisions of Code of Criminal Procedure are made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act.”
8. There were some difficulties in that case regarding the powers which could be exercised under section 167 of the Code of Criminal Procedure, but in the present case, there is no such difficulty in view of the clear provision authorising the Special Court to exercise the power under section 36A(1)(c) of the Act. Shri Ponda urged that the provisions of the Statute have to be taken as they are, without any attempt of adding or substracting to it and the power of authorising detention or taking cognizance as may obtain to a Special Court cannot be inferred in the Court of Session under section 36D aforesaid. This contention entirely overlooks the language employed in Section 36-D(1), the context in which that provision occurs and the place it has in the entire scheme of the Act. As already indicated, in the absence of a clear definition defining the connotation of the words ‘be tried’, a restricted meaning cannot be given to the expression and since the power is to be exercised by the Court of Session when a Special Court is not constituted, evidently the intention of the Legislation could not have been to leave a void but to invest the Court of Session with the same powers which the Special Court will have under the provisions of the Act. It is true that the Court would not supply casus omissus. In Income-tax Commissioner, Calcutta v. National Taj Traders, (1980) 1 SCC 370 : AIR 1980 SC 485, it was pointed out as follows:—
“A casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”
9. There the Court was considering a fiscal statute and it was said “that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 33-B of the Income-tax Act, 1922 be regarded as a charging provision”. The same test would apply here because though the Narcotic Drugs and Psychotropic Substances Act, 1985, is a penal statute, the provisions which call for interpretation in the present case are regarding the procedure or the machinery provision as pointed out by the Supreme Court. Giving restricted meaning to the language of section 36-B(1) could evidently lead to an absurdity and make the entire statute unworkable. If this consequence can be saved and it appears to be that it was intended to be saved by using the expression in its widest connotation, no other construction can be placed on the language of that section. Viewed in this light having regard to the scheme of the Act and the context in which amended provision of Section 36-D occurs, it seems obvious to me that the Court of Session shall have all the powers, duties and obligations with which the Special Court has been given. There can, therefore, be no doubt that the learned Additional Sessions Judge was entitled to authorise detention and in the event of a chargesheet being filed or a complaint being lodged, he would be entitled to take cognizance of the offence and then proceed to trial by following the procedure prescribed by the Act.
10. However, in the present case, it is apparent that the learned Metropolitan Magistrate went beyond his powers in authorising detention for a period exceeding 15 days and not considering the application for bail which was filed on 12th July, 1989. On the date on which the application for bail was made, the applicants' detention was unauthorised and though it may be possible for the learned Additional Sessions Judge after taking cognizance of the offences to authorise the detention, if the circumstances justified such a course until the cognizance is taken that detention which was unauthorised could not be cured on the date on which bail application was filed and the applicants who were under unauthorised detention were entitled to be released on bail. A similar position arose when a chargesheet had not been presented within a period of 90 days and an application for bail was made before the presentation of the chargesheet and it was held by the Punjab and Haryana High Court in Gurmit Kaur v. State of Punjab, 1989 Cri. L.J 1609 that the accused was entitled to be released on bail because the right of the accused to get released under the provisions of section 167(2) of the Code of Criminal Procedure cannot be defeated so easily and in such cases the Court while deciding the right of the accused has to consider as to whether his remand order for a period which exceeded the said period is illegal.
11. The learned counsel for the applicants referred to what he urged were certain illegalities in the matter of search and seizure of the property, while the learned Public Prosecutor resisted the application for bail on merits saying that the search and seizure were not at all vitiated. It is not necessary to go into these submissions because I find that the detention which was unauthorised and by virtue of which the applicants were entitled to bail could not be cured by a later order passed by the learned Additional Sessions Judge. In the result, I direct that the applicants be released on bail on their furnishing bail of Rs. 5,000/- each with one surety in the like amount. The bail bond may be furnished before the Court of Session.
Order accordingly.
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