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1990 DIGILAW 393 (CAL)

MD. ABDUL v. STATE OF WEST BENGAL

1990-09-17

A.K.BHATTACHARYA, SHAMSUDDIN AHMED

body1990
SHAMSUDDIN AHMED, J, J. ( 1 ) THIS is an application for bail under section 439 of the Criminal Procedure Code. An application for bail by the petitioner was filed before the learned Chief Judge, City Sessions Court and was rejected by an order dated 28-5-1990. In the said impugned order the learned Judge held that the provisions of section 167 of the Criminal Procedure Code arc not attracted in a case under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and further held that provisions of section 37 of the NDPS Act have imposed limitations on the court for granting bail and accordingly considering the limitations imposed, the learned Judge was pleased to reject that application. ( 2 ) MR. Jaiswal, learned Advocate appearing for the petitioner, has submitted that since the petitioner is being detained in custody for more than ninety days and no charge-sheet has been filed, he is entitled to the benefit of section 167 of the Criminal Procedure Code. Mr. Jaiswal has relied on a decision. In the said decision the Supreme Court had occasion to consider a case if benefits of section 167 (2) of the Criminal Procedure Code can be attracted to a case under the NDPS Act? The Supreme Court held that an order of release on bail under section 167 (2) of the Criminal Procedure Code may be termed as an order of default. Indeed, it is a release on bail for the default of the prosecution in filing chargesheet within the prescribed period. The right to bail under section 167 (2) proviso (a) tereto is absolute. It is legislative command and not courts discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/ 60 days, as the case may be, the accused who is in custody, should be released on bail. At that stage merits of the case are not to be examined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days and he must pass an order of bail communicating to the accused to furnish the requisite bail bond. ( 3 ) MR. N. A. Chaudhury, learned Additional Public Prosecutor appearing for the State has opposed the contention of Mr. Jaiswal. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days and he must pass an order of bail communicating to the accused to furnish the requisite bail bond. ( 3 ) MR. N. A. Chaudhury, learned Additional Public Prosecutor appearing for the State has opposed the contention of Mr. Jaiswal. According to him, the Supreme Court in the aforesaid decision did not consider the impact of section 37 of the NDPS Act, as amended. According to him, any court granting bail has to consider the conditions laid down in section 37. Accordingly only because of expiry of that period, the learned Special Judge is not bound to release the accused petitioner on bail. In support of this contention, he relied on a decision of this Court of a Division Bench on an application for bail filed by one Biswanath Aggarwal and the order was passed by that Bench on 25/7/1990. We have perused that order. It appears to us that the learned Judge posed the question whether section 167 (2) of the Criminal Procedure Code is attracted to a case under the NDPS Act. Therefore the Division Bench dealt with the decisions cited before it by the learned Advocates for the parties and ultimately held that those decisions were not applicable. The Division Bench disposed of the application on a finding that because the conditions of section 37 NDPS Act were not satisfied, the bail to the petitioner in that case Could not be granted. Since that Division Bench has not come to a positive finding on the question whether section 167 (2) is attracted to a case under the NDPS Act. We are unable to consider this decision as a direct one of the point. ( 4 ) MR. Chaudhury drew our attention to an unreported decision of the Bombay High Court circulated by the Central Board of Excise and Customs. It is a single Bench decision (Sasibala Nair v. Intelligence Officer, Narcotic Control Bureau The learned single Judge of that Court held that because a person has to be released under section 167 of the Criminal Procedure Code on bail, the conditions of bail imposed by Section 37 has to be considered. It is a single Bench decision (Sasibala Nair v. Intelligence Officer, Narcotic Control Bureau The learned single Judge of that Court held that because a person has to be released under section 167 of the Criminal Procedure Code on bail, the conditions of bail imposed by Section 37 has to be considered. There is no case of automatic release on expiry of the period stipulated by that section and in that view alone, the Court held that section 167 of the Criminal Procedure Code has no application in a case under the NDPS Act. ( 5 ) MR. Chaudhury has also relied on a decision3. It is a single Bcnch decision of Jammu and Kashmir High Court. In the said decision the learned Judge has held that section 167 of the Criminal Procedure Code is not attracted to that case as a complaint has been filed and the investigation is not being conducted under Chapter XIV of the Criminal Procedure Code. This decion is of no assistance to us. ( 6 ) MR. Chaudhury has also relied on a deision (Hamidulla v. State of U. P. ). A single Judge Bench of the Allahabad High Court held lat in a case under the NDPS Act, it is not necessary that a charge- sheet has to be filed by the investigation officer of a Police Station as is done in matters investigated under the Criminal Procedure Code. Accordingly the learned Judge held that there is no scope of application of section 167 of the Criminal Procedure Code though this has not been the direct conclusion of he learned Judge. ( 7 ) IN this background let us now consider the provisions of NDPS Act. Section 36a as amended provides that all offences under this act are triable by the Special Court. In section 36a (1) (b), it is provided that a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2a) of section 167 of the Code of Criminal Procedure, such Magistrate may authorise the detention of such person 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 has further been provided in the said section that upon or at any time before the expiry of the period of detention, if the learned Magistrate considers it unnecessary to detain the person further, he shall order such person to be forwarded to the Special Court. ( 8 ) CLAUSE (c) of the said section takes care of the person so forwarded by the learned Magistrate. It provides that Special Court may exercise, in relation to the person forwarded to it under clause (b) the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section. ( 9 ) PROVISIONS of clause (c) referred to above clearly lay down that Special Court has power to remand a person in terms of the provisions of section 167 of the Code of Criminal Procedure. It has been argued that because this is not a case which is being investigated by an Officer-in-Charge of a Police Station the provisions of section 167 of the Code of Criminal Procedure are not attracted. But it appears to us that section 167 is attracted in the case by virtue of the fact that the said provisions have been implanted under the NDPS Act by the aforesaid clause (c ). Provisions of section 167 apply because of that provision. Therefore, we need not enquire who is conducting the investigation of the case and when a particular provision has been made applicable by the Act itself, it will apply with all its conditions. Accordingly, when a case is forwarded to the learned Special Judge by the learned Magistrate in terms of clause (b) of the said section, the learned Judge can remand him to custody in terms of the provisions of section 167 alone. Since proviso to section 167 (2) lays down that no person can be remanded to custody under authority of that Section for a period beyond. 90/60 days, if the terms of Section 167 of Criminal Procedure Code are not complied with by the prosecution, proviso (ii) to sub-section (2) of section 10 is automatically attracted and the learned special Judge has no option but to release the person on bail. ( 10 ) IT has been submitted by Mr. 90/60 days, if the terms of Section 167 of Criminal Procedure Code are not complied with by the prosecution, proviso (ii) to sub-section (2) of section 10 is automatically attracted and the learned special Judge has no option but to release the person on bail. ( 10 ) IT has been submitted by Mr. Chaudhury that since a person can only be released on bail under section 167, the conditions of bail as laid down in section 37 of the NDPS Act have to be complied with, otherwise he cannot be so released. The substance of the submissions of Mr. Chaudhury is that in any case a person, if required to be released on bail, he must fulfil the conditions laid down in section 37 of the NDPS Act. We regret, we are unable to accept the contention of Mr. Chaudhury. It will appear that the provisions of bail as laid down in sections 437 and 430 of the Criminal Procedure Code gives power to the learned Magistrate or the learned Sessions Judge or the High Court, as the case may be, to grant bail. Section 167 of the Criminal Procedure Code does not grant such a power but it only imposes obligation on Court to release a person on bail, if the Charge-sheet is not filed within 90/60 days from the date of arrest of the person concerned. Accordingly, the power exercised under Section 167 of the Criminal Procedure Code and the powers under Sections 437 and 439 cannot be equated. Only because a person has to be released on bail in terms of section 167, his release cannot be equated with the release by the order of the Court in terms of sections 437 and 439 of the Criminal Procedure Code. Accordingly we hold that in cases where clause (c) to section 36a (1) is attracted, Section 167 of the Criminal Procedure Code will apply with all force and in all cases where charge-sheet has not been submitted and cognizance of the offence has not been taken by the learned Special Judge, the provisions of section 167 have to be complied with. Clause (d) of the aforesaid Section has laid down that a Special Court may, upon a perusal of police report of the facts constituting offences under this Act or upon a complaint made by an officer of the Central Government or State Government authorised in this behalf, take cognizance on that behalf without the accused being committed to it for trial. It will appear that the powers to take cognizance of the offence are different from the powers given to a Court by the provisions of the Criminal Procedure Code. In terms of clause (d), the Special Court can take cognizance upon a police report or on a complaint filed before him by an officer authorised. Accordingly, it cannot be contended unless a police report is submitted in terms of section 173 of the Criminal Procedure Code, no cognizance can be taken. In the event, the learned Special Judge takes cognizance of the offence complained of, the provisions of section 167 of the Criminal Procedure Code will not be applicable even though a formal police report under section 1730f the Criminal Procedure Code has not been filed before him. It is for the prosecution to decide when and how they will ask the learned Special Judge to take cognizance of the offence complained. ( 11 ) MR. B. C. Roy, learned senior Advocate who appeared in the matter as Amicus Curiae has submitted that the Police Report referred to in clause (d) of the said section must be a report under section 173 of the Criminal Procedure Code. In making the submission, Mr. Roy referred to us to the definition of police report appearing in the Criminal Procedure Code and submitted that since the expression police reportt is also used in clause (d) and there is no other provision mentioned in the section, the said definition is attracted. We are unable to accept the contention of Mr. Roy, as according to us, the definition clause in a particular enactment is applicable to that act alone unless by a special provision it is also made applicable to interpret in other Acts. That no being the case here, the learned Special Judge is competent to take cognizance on the basis of any police report of the facts constituting the offence. He can also take cognizance upon a complaint filed by a competent Police Officer. That no being the case here, the learned Special Judge is competent to take cognizance on the basis of any police report of the facts constituting the offence. He can also take cognizance upon a complaint filed by a competent Police Officer. Since there is no provision as to when such cognizance can be taken, it is open to the learned Special Judge to take cognizance of such offence at any time on satisfaction of the conditions laid down in clause (d ). If the learned Special Judge takes cognizance under clause (d), the provisions of clause (c) will not be applicable. He will not be bound to release a person after 90/ 60 days as the case may be, on the ground that no police report in terms of section 173 of the Criminal Procedure Code has been filed. ( 12 ) NOW we come to the other question whether the provisions of section 37 of the NDPS Act, as amended, are also applicable to an application filed before this court under section 439 of the Criminal Procedure Code. Before entering into that aspect of the matter we must make it clear that on a perusal of the provisions of clause (b) of section 36a (1), it is clear that the learned Magistrate before whom an accused of an offence punishable under the NDPS Act is produced, is not competent to release him on bail. No Magistrate has any power conferred under this. Act to release any accused on bail. In the event, the learned Magistrate considers it unnecessary to detain that person, he will have to refer him to the learned Special Judge. It is only the learned Special Judge who can release that person on bail. According to the scheme of the section, it appears that powers under section 437 of the Criminal Procedure Code to grant bail has been conferred on the Special Court and the Special Court can release a person on bail in exercise of its powers under section 437 only. Though the Special Court is a Sessions Judge he is not competent to exercise power under section 439 of the Criminal Procedure Code and this will become apparent from the provisions of sub-section (3) of section 36a, as amended. Though the Special Court is a Sessions Judge he is not competent to exercise power under section 439 of the Criminal Procedure Code and this will become apparent from the provisions of sub-section (3) of section 36a, as amended. Sub-section (3) clearly provides that nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure and the High Court may exercise such powers regarding bail under section 439 of the Criminal Procedure Code. This provision clearly indicated that the powers of the Sessions Court under section 439 is not exercisable in a case under the NDPS Act. Accordingly, when the Special Court exercise power to grant bail he is bound by section 37 of the NDPS Act He has to take into account the conditions laid down in clauses (i) and (ii) of clause (b) of section 37 (1) and if he is satisfied that those conditions have been fulfilled, he can release a person on bail under section 437 of the Criminal Procedure Code. The other conditions laid down in section 437 will also apply to him when he intends to grant bail in such a case. ( 13 ) MR. Roy submitted that because of the provisions of sub-section (2) of section 37 the conditions laid down in sub-section (1) of section 37 of the NDPS Act do not bind the High Court. He submits that sub-section (2) of section 37 of the NDPS Act lays down that the limitations specified in clause (b) of sat-section (1) of section 37 of the NDPS Act are in addition to the limitations under the Criminal Procedure Code. Accordingly, he submits that only section 437 of the Criminal Procedure Code has provided for limitations. Limitations under section 37 can only be added to that section and not to the power conferred on the High Court under section 439 of the Criminal Procedure Code. He has referred to sub-section (3) of section 36a of the NDPS Act and has submitted that all the powers of the High Court in that section have been written and thus, his conclusion is that the powers of the High Court contemplated by section 439 cannot be circumscribed by the provisions of section 37 of the NDPS Act. With great respect, we have considered the submissions made by Mr. Roy. With great respect, we have considered the submissions made by Mr. Roy. It will appear that section 37 of the NDPS Act has started with a non-obstinate clause. That the provisions made therein will apply inspite of the provisions of Criminal Procedure Code. In similar terms it cannot be said that the conditions laid down in section 37 are altogether new conditions not provided under the Criminal Procedure Code. In our view, this will apply to all cases where the Court exercises powers to grant bail. In this connection, we may also note that in section 439 of the Criminal Procedure Code though no specific conditions have been laid down for the High Court to exercise its discretion judicially, the power granted by section 439 of the Criminal Procedure Code is not an arbitrary power. If the law specifically provides that in cases of granting bail some other conditions have to be satisfied, the High Court is bound to respect them. ( 14 ) IN our considered view, since no exception has been made in application of the restriction imposed by section 37 of the NDPS Act, this will also bind the High Court and in cases of granting bail the High Court will have to satisfy itself when the learned Public Prosecutor opposes the application for bail that there are reasons for believing that the petitioner is not guilty of the offence and that he is not likely to commit any offence while on bail. The two questions that have cropped up for consideration are thus disposed of. ( 15 ) MR. Roy made submissions with regard to the procedure to be followed after the Special Court as taken cognizance of the offence. According to Mr. Roy, since some of the offences punishable under this Act can be sentences to imprisonment for a term of 10 years or more, the trial to be held will be a Sessions trial and if it is a sessions trial and the learned Judge after taking cognizance intends to proceed in the matter, he is required to do so only under the provisions of section 202 of the Criminal Procedure Code. That being the position of the learned Judge has to examine himself all the witnesses and then proceed with the trial of the case. If that be the position, there is no question of submission of a police report. That being the position of the learned Judge has to examine himself all the witnesses and then proceed with the trial of the case. If that be the position, there is no question of submission of a police report. Accordingly, he submits that cognizance ultimately can only be taken only on the basis or a police report submitted under section 173, Cr. P. C. In exceptional cases where a complaint is made by a competent officer, cognizance can be taken and in such a case the learned Judge has to proceed undert the procedure laid down under section 202, Cr. P. C. Since this question is not required to be considered by us in disposing of this bail application, we keep this question open as to what would be the procedure to be followed by the learned Special Judge, if he takes cognizance under clause (c) of section 36a (1) of the NDPS Act. ( 16 ) WE express our appreciation for the assistance rendered by Mr. B. C. Roy. ( 17 ) IT appears that the petitioner is being kept in detention on the strength of repeated remand order since 12/2/1990. As. we have stated above section 167, Cr. P. C. will operate in such cases. Accordingly, we direct that the petitioner be released on bail subject to the satisfaction of the Chief Judge, City Sessions Court, Calcutta. Order accordingly.