Judgment 1. A request is made by the petitioner viz., Assistant Director, Narcotics Control Bureau, Chennai to issue a direction to the Special Judge, N.D.P.S. Act Cases, Madurai to set right the illegality and act in accordance with the legal provisions in the matter of taking cognizance and remand under Sec.309 of Crl.P.C. 2. The Narcotice Bureau filed a complaint in this case before the Special Court against the respondent Paulsamy. The Special Court did not take cognizance and did not extent the remand of the accused respondent. The Special Judge, N.D.P.S. Cases, Madurai was required to submit only the remand report along with the enclosures to this Court for the purpose of reference in Crl.O.P.No.8705 of 1998. On that ground, the records, have been called by the High Court. 3. The Special Judge appears to have refused to take cognizance of the matter. Further, he did not accept the request of the petitioner to extent the remand. This Court has held in the decision reported in Vetriselvi v. State Vetriselvi v. State [1996] 2 L.W. (Crl.) 364 that the detention on and from the date of filing of the final report is only pursuant to the sanguine provisions adumbrated under Sec.309 in the Criminal Procedure Code which in all those cases was on and from 2.1.1996. The Apex Court has held in the decision reported in Sanjay Dutt v. State Sanjay Dutt v. State 1994 S.C.C. (Crl.) 1433 popularly known as Sanjay Dutts case, that he indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or will be enforceable on the challan being filed, if already not avail of In this case, admittedly, the complaint which is the challan or final report has been filed into the court, in which case the question of remand under Sec.167 of Crl.P.C. does not arise, and thereafter, it will be only a remand under Sec.309 of Crl.P.C. 4. The lower court has over looked the distinction. The remand report with enclosures were only called for by this Court only for the purpose of reference in the bail applications and not in exercise of its jurisdiction under Sec.482 or 397 of Criminal Procedure Code. The records must be taken to be with that court as on the date of filing the complaint. The remand report with enclosures were only called for by this Court only for the purpose of reference in the bail applications and not in exercise of its jurisdiction under Sec.482 or 397 of Criminal Procedure Code. The records must be taken to be with that court as on the date of filing the complaint. Since the ground put forward for grant of bail concerned about the failure to comply with the mandatory requirements and as it was submitted on behalf of the department that along with the remand report, the documents evedencing the complaince under Secs.41 and 57 of the N.D.P.S. Act have enclosed, it was thought just and necessary to call for the records. 5. Therefore, in such circumstances, the lower court was not justified in refusing to take cognizance. The accepted proposition of law is that a mistake of the court cannot affect the rights of the party or prejudice them. The maxim ‘actus curiae neminam gravabit’ is founded upon justice and good sense and it is meant as a guide for the administration of justice. 6. Therefore, the lower court was not justified in returning the complaint for no one should suffer because of the mistake of the court. As held by the Supreme CourtA.R.Antulay v. R.S.Nayak A.R.Antulay v. R.S.Nayak 1998 S.C.C. (Crl.) 372 “that no man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Exdebito justitiae, the court must do justice. If a man has been wronged, so long as it lies within the human machinery of administration of justice, that wrong must be remedied.” 7. Hence, the lower court is directed to keep in mind the circumstances and the observations of the Supreme Court and shall set right the situation and act in accordance with the legal procedure in the matter of taking cognizance and of remand. It is also to be pointed out in this case that Sec.36A(i)(d) of N.D.P.S. Act provides that the Special Court shall take cognizance of that offence upon a complaint being made by a person authorised in that behalf. Without accused being committed to it for trial. The Special Judge, apparently has not looked into the provision. 8. It is necessary for me to answer the objection raised by the learned counsel for the espondent as to the maintainability of the application. Without accused being committed to it for trial. The Special Judge, apparently has not looked into the provision. 8. It is necessary for me to answer the objection raised by the learned counsel for the espondent as to the maintainability of the application. Learned senior counsel Mr.Subramanian submitted that the proper procedure for the petitioner is to file a separate petition in the nature of separate Crl.O.P. and not file an application of this type as though it is an interlocutory application arising in the bail application. 9. Of course, a separate application ought to have been filed under Sec.482 of Crl.P.C.,. But the learned Prosecutor submitted that this took place in the background of the pendency of the bail petition in Crl.O.P.No.8785 of 1998, and therefore, this application is filed with reference to the same and not as separate Crl.O.P. He further submitted that the nomenclature or how the application is filed is not a criterion and the court has to got by the substance of the application and the legality of the prayer and if the court is satisfied that the request made by the petitioner is genuine, such technical objection cannot stand in the way. 10. While accepting the contention of the learned counsel for the respondent that the petitioner ought to have filed a separate petition in the form of Crl.O.P. without reference to Crl.O.P.No.8785 of 1998 or as an application arising under Crl.O.P.No.8785 of 1998, I am of the opinion that merely on that ground, the request of the petitioner cannot be turned down. For it is the substance that courts. The formality of the procedure cannot tie down the hands of the court in affording adequate relief to the parties concerned, Therefore, in that view of the matter, the objection to the maintainability is overruled and the petitioner is ordered. 11. In the result, the Special Judge, N.D.P.S. Cases, Madurai, is hereby directed to act in accordance with the legal provisions in the matter of taking cognizance and remand and set right the situation and act according to Sec.309 of Crl.P.C. with regard to the request for remand. The office is directed to send the records back immediately by the lower court.