JUDGMENT : B.L. Hansaria, C.J. - These petitions challenge the legality of the detention of accused Govinda Sharma. (petitioner in 0. J. C. No. 6179/91--the other writ petition, namely, O. J,C. No. 5777/91 having been filed challenging the legality of the confinement of Govinda by his uncle (Bhagawan Singh) pursuant to remand orders passed by learned Sessions Judge, Botangir and seek Issuance of writ of habeas corpus to free the accused from illegal detention. The remand orders had come to be passed by Sessions Judge on Govinda being produced before hint in connection with a case registered against him u/s 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act"). The last order, which is dated 18-1-1991, had been, however, passed after taking cognizance of the offence. 2. The validity of the orders has been assailed on the ground that the Sessions Judge had no jurisdiction to paas the remand order before taking cognizance of the offence; and the remand order after taking cognizance is also unlawful as cognizance could not have been taken without the case being committed to the Sessions Judge for trial. 3. In so far as the power of ordering detention in custody prior to the taking of cognizance by the Sessions Judge is concerned, this Court had occasion to deal with the same in Criminal Misc. Case No. 986 of 1991 (Basanta Kumar Das v. State), disposed of on 22-11: 1991, wherein it was held that a Sessions Judge has no power to remand an accused to custody who has been arrested in connection with an offence under the Act in exercise of the power contemplated by Section 167 of the Code of Criminal Procedure, which power alone is available at a pre trial stage, before cognizance of the offence is taken by the Sessions Judge. As, however, the last remand order can be said to have been passed after cognizance of the offence had been taken, it has to be seen whether the Sessions Judge had the power and competence to take cognizance of the offence without the accused having been committed to his Court for trial. Examination of this aspect is necessary because in a habeas corpus proceeding, the relevance for determining whether the detention is legal or not is the date of return or the date of hearing, as pointed out in Kanu Sanyal Vs. Examination of this aspect is necessary because in a habeas corpus proceeding, the relevance for determining whether the detention is legal or not is the date of return or the date of hearing, as pointed out in Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, . 4. As to the lack of power of a Court of Session to take cogni-zance of an offence without the case being committed to it, Shri Misra appearing for the petitioners submits that as a Court of Session has bean conferred with the power of only trying a case, until a Special Court is constituted, as provided in Section 36D(1) of the Act, the bar of taking cognizance of any offence by a Court of Session unless the case has been committed to it by a Magistrate, of which mention has been made in Section 193 of the Code of Criminal Procedure, will apply in as much as this bar has been removed by Section 36-A(d) of the Act only in so far as a Special Court is concerned. It is urged that if the Legislature would have desired taking cognizance of a case by a Court of Session without the accused being committed to it for trial, the same would have been expressly stated in Section 36-D(t) of the Act, as has been provided in Section 36-A(d) regarding trial by the Special Court. 5. Shri Das appearing for the State, however, contends that what is mentioned in Section 36-D (2) of the Act would clearly indicate that a Court of Session can also take cognizance of an offence; and the power of the Court of Session is not confined only to trial which begins when the prosecutor opens his case by describing the charge, as mentioned in Section 226 of the Code of Criminal Procedure. 6. For appreciating the aforesaid submissions of the learned counsel, it would be opposite to note Section 36-D of the Act- "36-D. Transitional provisions--(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted u/s 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session : Provided that offences punishable under Sections. 26, 27 and 32 may be tried summarily. 26, 27 and 32 may be tried summarily. (2) Nothing in Sub-section (1) shall be construed to require the transfer of 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 language of Section 193 of the Code of Criminal Procedure may also be noted- "Cognizance of offences by Courts of Session-- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." 7. If attention is confined to Sub-section (1) of Section 36-D of the Act, it would appear that a Court of Session has been conferred with the power of trial only. No doubt, it has been stated in this Sub-section that a Court of Session shall have the power to try notwithstanding any-thing contained in the Code of Criminal Procedure, this by itself has not beep deemed sufficient by us to take away the operation of Section 193 of the Code inasmuch as the non-obstante clause finding place in Sub-section (1) takes care only of the restriction placed by the Code on the jurisdiction of the Court of Session to try an offence. But for the non-obstante clause In Sub-section (1), it would have been open to argument that a Court of Session cannot try all the offences committed under the Act. The non-obstante clause does not, according to us, do away with the provision of Section 193 of the Code because that section visualises lifting of the embargo imposed by it by an express provision. In Sub-section (1), we do not find any express provision excluding the. operation of Section 193 of the Code. 8. But then, this is not the end of the matter as Shri Das has sought to rely on the provision contained in Sub-section (2) of Section 36-D to contend that what is stated therein would show that a Court of Session can take cognizance of an offence also. operation of Section 193 of the Code. 8. But then, this is not the end of the matter as Shri Das has sought to rely on the provision contained in Sub-section (2) of Section 36-D to contend that what is stated therein would show that a Court of Session can take cognizance of an offence also. According to us, the provision finding place in Sub-section (2) is not sufficient to come a Court of Session with the power of taking cognizance without the case being committed to it by a Magistrate as visualised by Section 193 of the Code. We have taken this view for two reasons. First, as per Section 193 of the Code, about the applicability of which there is no dispute before us, the exception to that provision has to be expressly provided. This express exception lies been provided in Section 36-A (d) only in so far as a Special Court is concerned. What has been mentioned in Section 36-D (2) cannot be taken to be an express provision excepting the applicability of Section 193 of the Code. Secondly, even if the power taking cognizance is concerned to a Court of Session by virtue of what has been stated in Section 36-D (2), that does not answer the question posed in the case in favour of the State, because Section 193 of the Code which also speaks about taking of cognizance by a Court of Session states that the same shall not be so done unless the case has been committed to it by a Magistrate. So, the implied power of taking cognizance by a Court of Session, which may be inferred from what has been stated in Section30-D(2), cannot be taken to be a power to take cognizance without the case being committed to it by a Magistrate. It would bear repetition to say that such a power has been expressly conferred on a Special Court only by Section 36-A (d), and nothing has been said in the Code about this power qua a Court of Session. 9. In support of his submission, Shri Misra in his written argu-ment has mentioned about the decision of the Supreme Court in Raj Kumar Karwal Vs. 9. In support of his submission, Shri Misra in his written argu-ment has mentioned about the decision of the Supreme Court in Raj Kumar Karwal Vs. Union of India and others, The learned counsel has referred in this connection to the statement made in paragraph 5 of the judgment to the effect that the appellants stood committed to the Court of Session for trial. The observation made in paragraph 21 that the investigation which commences must be concluded "by the submission of a report u/s 173 of the Code to the concerned Magistrate in the prescribed form" is then brought to our notice. As to the aforesaid statement and observation, we would like to say that the same cannot be taken to have expressed any opinion of the apex Court on the point at hand. But in view of what has been stated otherwise in the earlier paragraphs, we would hold that a Court of Session cannot take cognisance of an offence under the Act without the accused being committed to it for trial. 10. In the result, the petitions are allowed and the petitioner Govinds is directed to be released forthwith from custody if his detention is not required in connection with any other case. B.N. Dash, J. 11. I agree. Final Result : Allowed