ORDER
1. This is an application for bail by the Petitioner who was arrested on 24th June, 1989 by N. M. Joshi Marg Police Station in C.R. No. 8/89 under Section 8(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985. The Accused was produced from time to time before the Metropolitan Magistrate who authorised his detention. He was produced before the Additional Sessions Judge on July 25th, 1989. The presents application for Bail was presented on August 25, 1989.
2. The main ground on which bail is being sought is that the detention by the Metropolitan Magistrate which was for a period exceeding 15 days was in contravention of Section 36(1)(b) of the Act, as the Magistrate had no powers to authorise detention for a period exceeding 15 days, the duty of the Magistrate in the event of the detention being unnecessary, to forward him to the Special Court having jurisdiction and since the initial detention pursuant to the orders of the Magistrate when it exceeded 15 days was unauthorised, further detention of the Petitioner in continuation of that period as authorised by the Additional Sessions Judge would not cure the unauthorised detention under the Orders of the Magistrate and would not give validity for the further detention and would enable the Petitioner to claim bail as of right. It is also contended that the Special Court under the amended provisions of the N.D.P.S. Act do not confer power to grant bail on the Special Judge and, therefore, it is only by an application to this court that the petitioned could ask for bail.
3. While considering this position, it would be useful to refer to the provisions under Section 36-A of the Act which makes all offences under it triable only by the Special Court constituted and limits the power of the Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, to authorise detention in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive Magistrate. Under the proviso to sub-section (1) the Magistrate to whom such a person is forwarded or at any time before the expiry of the period of detention, the Magistrate considers that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. Since Special Court has not so far been established, under Section 36D which is a transitory provision, this jurisdiction has to be exercised, upon the view taken by this Court, by the Court of Session. It is apparent that the Petitioner was not produced before the Additional Sessions Judge until 25-7-1989, i.e. than a month after his arrest and in the meanwhile orders of detention had been obtained from the Magistrate. There can be no doubt about the position that the detention under the orders of Magistrate for a period exceeding 15 days would be unauthorised. The submission on behalf of the petitioner was that once this position is accepted, it would follow that the further detention authorised by the Additional Sessions Judge would also be unauthorised. Reliance was placed on the observations in Hussainara Khatoon v. State of Bihar, , to the effect that, when an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State costs is secured to him. The position here is that the limitation of 90 days is not yet over and the position that may arise under Section 167 of the Code of Criminal Procedure does not obtain. The only question is even assuming that the detention under the orders of the Magistrate was unauthorised, would it affect the validity of the order of detention passed by the Additional-Session Judge and in this respect, there is nothing in the aforesaid case which would justify the submission that the detention being continuous, the same would be vitiated.
4. It is evident that the Magistrate, under the provisions of Section 36-A does not have the power to release the offender on bail. The submission on behalf of the Petitioner was that even the Special Court or the Additional Sessions Judge would not have the power to grant the bail in view of sub-section (3) or Section 36-A which provides that, “Nothing contained in this section shall he deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under clause (b) of subsection (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under Section 36.” Turning the Section 439 of the Code of Criminal Procedure, it would be obvious that the High Court and the Court of Session exercise the same power of granting bail and, therefore, in order to infer that the power to grant bail which is vested in the Sessions Judge has been taken away by Section 36A, there must be something which must expressly or by necessary implication take away the powers of the Sessions Court to grant bail. There is nothing in sub-section (1) and (2) which would deprive the Special Court and the Additional Sessions Judge of the power to grant bail. In fact, Section 37 which imposes certain obligations on the Court while granting bail also does not take away the power of the Sessions Court to grant bail in proper cases. That section provides as follows :-
“37.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, –
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless –
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.”
If the object was to deprive the Special Court or the Court of Session of the power of granting bail, clearly an express provision would have been made to that effect and the exclusion of such power cannot be inferred in the absence of such provisions merely by the language of Section 36A(3) of the Act. May be, the legislature felt that there may be some ambiguity under Section 439 of the Code of Criminal Procedure to grant bail and in order to clarify that the powers of the High Court would not be affected, sub-section (3) came to be introduced. It does not, however, appear to me from the provisions to which reference has been made that the powers of the Special Court or the Court of Session under the transitional provisions to grant bail have been taken away. In view of the observations in the Hussainara Khatoon’s case (supra), it would be for the Special Court to apprise the accused person of his right should be (Sic) the period of 90 days provided by Section 167 of the Code of Criminal Procedure be exceeded.
5. Having regard to the provisions of Section 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 would also become invalid because of some previous irregularity by the Magistrate.
6. In Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida v. The State of Orissa, , it was observed that, the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law and the assumption without reference to Section 344 of the old Code that such a power existed is not correct. That state which came up for consideration in this case would arise only in the event of cognizance being taken by the Special Court under Section 36A(d) of the Act. I am, therefore, not in a position to accept the contention that the Petitioner is entitled to be released on bail merely because the period for which the Magistrate authorised the detentions was in excess of his powers, when the Additional Sessions Judge could allow further detention.
7. The next point urged it that the petitioner is 72 years old and the quantity found with him was only 4 gms. and there were certain irregularities in the investigation which would come in the way of the prosecution establishing that the Accused had committed an offence under the Act. The irregularities of which the learned Counsel for the Petitioner spoke were regarding non-issue of a receipt for the quantity seized and other such matters but these are matters which will have bearing on merits and I do not think that at this stage the petitioner should be released on bail when the offence is still under investigation.
8. In the result, the Application for Bail is dismissed.
9. Application dismissed.