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1991 DIGILAW 515 (MAD)

P. Jaseen Beevi v. Union of India

1991-07-29

K.M.NATARAJAN, SOMASUNDARAM

body1991
Judgment : SOMASUNDARAM, J.: 1. The petitioners husband, one Peer Mohamed alias Shahul Hameed, was arrested for offences under Secs.8, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter called the Act. As the case in which the said Peer Mohamed Alias Shahul Hameed was involved was under investigation, he was produced before the Additional Chief Metropolitan Magistrate (Economic Offence No.1), Egmore, Madras-8 on 4.2.1991 and the Additional Chief Metropolitan Magistrate, remanded the said Peer Mohamed to custody till 18.2.1991. Subsequently, the remand period of the accused Peer Mohamed was extended on 4.3.1991, 18.3.1991 and 1.4.1991. The bail application filed on behalf of the accused in M.P.No.256 of 1991 before the Additional Chief Metropolitan Magistrate (Economic Offence No. 1), Madras, was dismissed on 11.3.1991. A similar bail application filed before the Principal Sessions Court, Madras in M.P.No.1231 of 1991 was dismissed on 15.3.1991. Thereafter, the wife of the accused, Peer Mohamed, has filed this writ petition for issue of a writ of habeas corpus for the production of her husband Peer Mohamed before this court and for setting him at liberty. 2. Mr.S.Thiruvenkatasamy, learned counsel for the petitioner contended that the provisions of Sec.36-A(I)(b) of the Act contemplates that where a person accused of the commission of the offence under the Act is forwarded to a Magistrate under Sub-sec.(2) or (2-A) of Sec.167 of the Code of Criminal Procedure, 1973, 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. In this case the Special Court is the Sessions Court as defined under Sec.36 of the Act and the Additional Chief Metropolitan Magistrate, Egmore, Madras, has no jurisdiction to try the case and he was barred under the statute to authorise any detention beyond the period of fifteen days and the remand authorised by the Additional Chief Metropolitan Magistrate, Madras from time to time beyond 18.2.1991 is without Jurisdiction and illegal and, therefore, the petitioners husband is entitled to be set at liberty. 3. 3. On the other hand, Mr.Illias Ali, learned Additional Central Government Standing Counsel, would submit that the provisions contained in the amended Act would be operative only after the constitution of a special court under Sec.36 of the Act by notification in the Official Gazette and as no special court has been constituted in the State of Tamil Nadu the provisions of the Code of Criminal Procedure would be applicable by virtue of the transitional provision contained in Sec.36-D of the Act. 4. The admitted facts are: The period of remand of the accused was extended by the Additional chief Metropolitan Magistrate, Madras from time to time from 4.2.1991 till 2.5.1991. On 2.5.1991 a complaint was filed by the respondent against the petitioners husband before the Judicial Magistrate, Saidapet for an offence under Sec.8, 23, 28 and 29 of the Act. On 3.5.1991 the Judicial Magistrate, Saidapet took the case on file in P.R.C.No.15/91 and posted the same to 7.5.1991. The accused produced before the Judicial Magistrate, Saidapet on 3.5.1991 was remanded under Sec.309, Crl.P.C. till on 7.5.1991,5.6.1991, the Judicial Magistrate, Saidapet committed the accused in P.R.C.No. 15/91 to take his trial before the Sessions Court, Chengalpattu. The Sessions Court, Chengalpattu in its proceedings D.No.5216/ 91 dated 17.6.1991 took the case on file in S.C.No.112 of 1991 and directed that arrangement should be made for the appearance of the accused before the Sessions Court on 22.7.1991. 5. The main contention of the learned counsel for the petitioner is that the detention of the petitioners husband by the Additional Chief Metropolitan Magistrate, Madras, which was for a period exceeding fifteen days, was in contravention of Sec.36-a(I) (b) of the Act as the Additional Chief Metropolitan Magistrate had no power to authorise detention for a period exceeding 15 days; since the initial detention pursuant to the orders of the Additional Chief Metropolitan Magistrate when it exceeded 15 days was unauthorised, further detention of the petitioners husband even if authorised by the Sessions Court, Chengalpattu would not cure the unauthorised detention of the petitioners husband under the orders of the Additional Chief Metropolitan Magistrate, Madras and that the initial unauthorised detention of the petitioners husband by the Additional Chief Metropolitan Magistrate would render subsequent detention by the Sessions Court invalid and, therefore, the petitioners husband is entitled to be set at liberty. Sec.36-A(1)(a) provides that 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 whether 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. Sec.36-A(1)(b) reads as follows: “Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-sec. (2) or Sub-sec. (2-A) of Sec.167 of the Code of Criminal Procedure, 1973 (2 of 1974), 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.” Sec.36-D contains transitional provisions and it reads as follows: “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 under Sec.36, shall notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Sessions: Provided that offences punishable under Secs.26, 27 and 32 may be tried summarily.” 6. In this case, it is not necessary to decide the question whether the initial detention of the petitioners husband pursuant to the orders of the Additional Chief Metropolitan Magistrate, Madras for a period exceeding 15 days is unauthorised or not and that it is left open by us because we are inclined to hold that even assuming that the initial detention of the petitioners husband pursuant to the order of the Additional Chief Metropolitan Magistrate, Madras for a period exceeding 15 days in the whole, is unauthorised detention, such unauthorised detention by the Additional Chief Metropolitan Magistrate, Madras will not affect the subsequent order of detention validly passed by the Sessions Court, Chengalpattu, since admittedly no special Court is constituted as contemplated in Sec.36(A)(1)(a) of the Act. It is not in dispute that once when the accused is committed to take his trial before the Sessions Court and when the Sessions Court has taken the case on file in S.C.No.112 of 1991, the Sessions Court has got power to order detention of the accused. It is not in dispute that once when the accused is committed to take his trial before the Sessions Court and when the Sessions Court has taken the case on file in S.C.No.112 of 1991, the Sessions Court has got power to order detention of the accused. On a careful reading of Sec.167 Crl.P.C, and Sec.36-A(1)(b) of the Act, we are inclined to hold that even assuming that the initial detention of the petitioners husband pursuant to the orders of the Additional Chief Metropolitan Magistrate, Madras, for a period exceeding 15 days is unauthorised, such unauthorised detention by the Additional Chief Metropolitan Magistrate, Madras would not by itself vitiate the order of detention passed by the Sessions Court, Chengalpattu. Admittedly the complaint was filed on 2.5.1991 within 90 days from the date of custody in compliance with Sec. 167(2), Crl.P.C. Thereafter the remand was extended under Sec.309, Crl.P.C. in P.R.C.No.15/91 and he was committed to Sessions on 5.6.1991 under Sec.209, Crl.P.C The Sessions Court, Chengalpattu took cognizance of the case on 17.6.1991 and took the case on file as S.C.No.112 of 1991 and issued necessary directions regarding the production of the accused before him on 22.7.1991. When, at the time of issuing directions that arrangement should be made for the appearance of the accused before the Sessions Court, Chengalpattu on 22.7.1991, the Sessions Court, is vested with such power, such authorised direction by the Sessions Court will not become unauthorised or invalid even assuming there is some irregularity committed earlier by the Additional Chief Metropolitan Magistrate, Egmore, Madras. Dealing with a similar question the Bombay High Court in Daji Govind Kamble v. State of Maharashtra Daji Govind Kamble v. State of Maharashtra 1990 Crl.L.J. 2191 held as follows: “Having regard to the provisions of Sec. 167 as well as amended provisions of the Narcotic Drugs & Psychotropic Substances Act, it does not appear to me that because the Magistrate exceeded his authority in permitting detention beyond a period of 15 days, the detention authorised by the Special Court or the Court of Session would be vitiated when it is apparent that at the time of authorising the detention, the Special Court was invested with that power. The earlier unauthorised detention cannot be invoked for the purposes of urging that what was authorised should also become invalid because of some previous irregularity by the Magistrate.” We are in entire agreement with the above view expressed by the learned single Judge. 7. In view of the above position, it cannot be said that the detention of the petitioners husband is unauthorised detention and, therefore, the petitioner is not entitled to any relief in this writ petition. In these circumstances, the writ petition is liable to be dismissed. Accordingly, it is dismissed. However, there will be no order as to costs.