JUDGMENT
S.M. Daud, J.
1. The main question arising in these applications being common a single judgment is being delivered, though the incidental question that arises separately in three of the applicants will be attended to in the later part of the judgment.
2. The Narcotic Drugs and Psychotropic Substances Act, 1985 (No. 61 of 1985) was enacted with a view to consolidate and amend the law relating to Narcotic Drugs and to make stringent provisions for the control and regulation of operation etc. Until 28th May, 1989 the offenders were being tried by Magistrates where the punishment for the offences was less than seven years. In respect of offences which were punishable with imprisonment for 10 years and more, the Magistrates were passing committal orders for which reason the trial had to take place before the Court of Sessions. An Amendment was effected to the Act by virtue of Act 2 of 1989. Section 36 of the principal Act was substituted extensively the new sections being numbered sections 36, 36-A, 36-B, 36-C and 36-D. The amendments came into force with effect from 29th May, 1989. The substituted provisions viz. the new section 36 and the four other sections given the alphabets A to D were enacted to cover the provisions for a Special Court and transitional provisions. Section 36 empowered the Government to constitute as many Special Courts as was considered necessary for an area or areas to provide for speedy trial of the offences under the Act. The Constitution of Special Courts was to be done by notifications in the Official Gazette. A Special Court was to consist of a Single Judge to be appointed by the Government with the concurrence of the Chief Justice of the High Court. The expression “High Court” meant the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. The person to be appointed as a Judge of the Special Court had to be immediately before such appointment either a Sessions Judge or an Additional Sessions Judge. Section 36-A specified that notwithstanding the provisions contained in the Code of Criminal Procedure, 1973 in respect of areas where a Special Court had been constituted, all offences under the N.D.P.S. Act were to be triable only by the Special Court. In respect of the first remand under section 167 of the Cr.P.C., a only by the Special Court. In respect of the first remand under section 167 of the Cr.P.C., a Magistrate to whom the offender had been forwarded in the first instance was authorised to direct the detention of the offender in such custody as he considered fit for a period not exceeding 15 days in the whole-this period being seven days where the order of the first remand was made by any Executive Magistrate. Where the Magistrate before whom the offender had been brought for the purposes of remand considered the detention of the suspect to be unnecessary, he was to make an order directing the production of the suspect before the Special Court having jurisdiction. The Special Court in respect of such a forwarded person was to exercise the power conferred under section 167 of the Cr.P.C. exercisable under the Cr.P.C. by a Magistrate. The Special Court upon a perusal of the police report or upon a complaint could take cognizance of an offence even without the case being committed to it for trial. The Special Court even had the power to try the offender for any offence other than an offence under the N.D.P.S. Act, for which the accused under the Cr.P.C. could have been charged at the same trial. Nothing contained in section 36-A was to affect the special powers of the High Court regarding bail under section 439 of the Cr.P.C. and the High Court was to exercise such powers including the power under Clause (b) of sub-section (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. Under section 36-B, the High Court’s power vis-a-vis appeals and revisions against an order of the Special Court was recognised by laying it down that the orders of the Special Court were to be considered as if they were those of a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court. Section 36-C made applicable the provisions of the Cr.P.C. except as other wise provided in the Act, to proceedings before a Special court. For that reason Special Court was to deemed to be a Court of Sessions and the person conducting the proceedings before the Special Court to be deemed to be a Public Prosecutor. Having regard to the importance of section 36-D I will reproduce the same in full :
“(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 under section 36, shall notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session;
Provided that offences punishable under section 26, 17 and 32 may be tried summarily.
(2) Nothing in sub-section (1) shall be construed to require the transfer to a Special Court of any proceeding 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.”
3. The provisions summarised above have to be considered in the following background: A large number of cases of offences punishable under the N.D.P.S. Act, 1985 have been detected in Bombay and in due course prosecutions have been initiated against the offenders. Under 28th May, 1989, the Magistrates, where they had jurisdiction, were dealing with the cases themselves and where offences described to the offenders were punishable with imprisonment of 10 years or more, were passing orders of committal. This led to accumulation of a large number of cases in the Court of Sessions at Bombay. The Sessions Judge assigned some of these committed cases amongst the Additional Sessions Judges. One of the Additional Sessions Judge was Mr. Y.U. Pathan. Under possibly an administrative order passed by the Sessions Judge almost all the cases pending before the Additional Sessions Judges came to be transferred to the Court presided over by Mr. Pathan. With the coming into force of the Act 2 of 1989 the State Government on 4-1-1991 issued a notification constituting two Special Courts for Greater Bombay. By a notification dated 6th April, 1991 published in the Official Gazettee Mr. Y.U. Pathan was appointed a Judge of the Special Court constituted under the notification dated 4-1-1991. At this stage barring some 10 cases all the other cases under the N.D.P.S. Act were before Mr. Pathan. In October or November 1991 the number of special Courts was increased to four. Mr. Pathan retired on 12-2-1992 pursuant to attaining the age of sixty years and Mr. H.G. Ghare, was appointed as a Judge of the Special Court as with effect from 25-2-1992. Before Mr. Ghare’s appointment three other Judges of the City Civil and Sessions Court had been appointed as Judges of the Special Court.
4. In some bail applications moved before Judge Ghare a contention was raised that the Special Court had no jurisdiction to deal with cases in which cognizance of offence punishable under the NDPS Act had been taken by a Court of Sessions prior to the constitution of the Special Court. This contention was disputed by the Public Prosecutor and a full-scale debate led to the sustaining of the objection taken by the Counsel representing the claimants for bail. To be brief, Judge Ghare’s finding was that he has a Judge of the Special Court had no jurisdiction to deal with cases involving offences committed prior to 4-1-1991. This finding has given rise to Criminal Applications Nos. 1435 and 1436 and 1692 and 1693 all of the year 1992. In these applications, a somewhat broadly worded ad-interim relief was granted at the instance of the Public Prosecutor. The relief given had the effect of preventing Judge Ghare from taking up cases filed upto 5-4-1991 for bail and for any other purpose. Bail orders passed by Judge Ghare in two cases were also challenged-the two cases being covered by Criminal Applications Nos. 1692 and 1693 of 1992. Applicant in Criminal Application No. 1739 of 1992 is one of those who had obtained bail from Judge Ghare and has availed of the same. But as the interdiction order passed in Criminal Applications Nos. 1692 and 1693 of 1992 was coming in the way of Applicant in Criminal Application No. 1739 of 1992, he has come forth with that application viz. Criminal Application No. 1739 of 1992. The prayer sought in that application i.e. Criminal Application No. 1739 of 1992, is, that the ad-interim order placing an embargo upon Judge Ghare taking up certain matters be lifted. The first respondents in Criminal Applications Nos. 1435 and 1436 of 1992 are those whose bail applications are pending before Judge Ghare which applications’ consideration has been deferred by him for the present.
5. The main question arising in these applications is whether Judge Ghare was right in the view taken by him vis-a-vis his not having jurisdiction to take up cases where offences had been committed prior to 4-1-1991. As a matter of fact, the issue should be more broadly worded to cover cases relating to offences right upto 5-4-1991. The decided cases on the issue present a divergence. On the one hand are the judgments of Division Benches of the Orissa and Kerala High Courts reported in Banka Das v. State of Orissa, 1992(II) C.C.R. 1803 and (In Ref : An Accused), 1992(II) C.C.R. 1257 and a Single Judge of this High Court reported in Surakant Ramdas More v. State of Maharashtra, 1989 Cri.L.J. 2422. On the other side is the exposition of another Division Bench reported in Govind Sharma v. State of Orissa, 1992(II) C.C.R 1237. The preponderant view is that where a Special Court has not been constituted under section 36, the Court of Sessions has virtually all the powers of a Special Court. The Contrary contention taken by Counsel appearing before Deshpande, J., in the case reported in 1989 Cri.L.J. 2422 was negatived by him in the following words :
“Giving restricted meaning to the language of section 36-D(1) could evidently lead to an absurdity and make the entire statute unworkable. If this consequence can be saved and it appears to be that it was intended to be saved by using the expression in its widest connotation, no other construction can be placed on the language of that section. Viewed in this light having regard to the Scheme of the Act and the context in which amended provision of section 36-D occurs, it seems obvious to me that the Court of Session shall have all the powers, duties and obligations with which the Special Court has been given. There can, therefore, be no doubt that the learned Additional Sessions Judge was entitled to authorise detention and in the event of a charge-sheet being filed or a complaint being lodged, he would be entitled to take cognizance of the offence and then proceed to trial by following, the procedure prescribed by the Act.”
The opposite view is phrased thus by Hanseria, C.J., in the case reported in 1992(II) C.C.R. 1237.
“According to us, the provision finding place in sub-section (2) is not sufficient to clothe 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 the 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 has 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 confined 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 section 36-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.”
The view expounded above is in conformity with section 36 to 36D. The learned Public Prosecutor submits that Deshpande, J.’s. view is in conformity with section 36A. In particular, he refers to Clause (d) of section 36-A. In support of the submission that a Special Court has powers to deal with cases pertaining to offences committed prior to 5-4-1991. It is not possible to agree with this submission. All that sub-section (d) does, is, to enable a Special Court to take cognizance of an offence punishable under the Act either upon a report of the police or a complaint made by an officer of the Central Government or a State Government authorised in this behalf, without the accused being committed to it for trial. The power conferred is that upon a Special Court, and, a Special Court is that which is constituted under section 36. Until the Court be a Court answering to the description of section 36 sub-section (d) of section 36-A will not come into operation. The transitional provisions incorporated vide section 36-D are clear enough to exclude any form of confusion. The first sub-section deals with offences committed under the Act within a specified period. The said period is that which falls between the commencement of the Act 2 of 1989 and the constitution of a Special Court under section 36. This sub-section recognises that there would be an interval between the passing of Act 2 of 1989 and the constitution of a Special Court. In respect of offences committed within the two points i.e. 25-8-1989 and 6-4-1991 there had to be some Court competent to try the offenders. Because the Special Courts did not exist, recourse had to be had to the existing machinery. Thus, instead of Magistrates having jurisdiction in respect of minor offences as before, all offences committed within the two points would be tried by a Court of Sessions. Sub-section (2) of section 36-D made it clear that nothing in sub-section (1) shall be so construed as to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Sessions. Under the said sub-section those cases of which cognizance had been taken under sub-section (1) of section 36-D were to be heard and disposed of by the Court of Sessions. Reasonably read, the position emerging from section 36-D may be stated thus : In respect of cases relating to offences committed prior to 28th May, 1989, trial of these cases was to be governed under the Code of Criminal Procedure, 1973. In respect of such cases if the Magistrates were empowered to award the sentences prescribed by the different sections, they could deal with the matters. Where the offences were punishable with imprisonment for 10 years and more, the Magistrates had to commit the offenders to stand trial in the Court of Sessions. The second category was that of persons who had committed offences under the Act between 25-5-1989 and 5-4-1991. Such offences were to be tried by a Court of Sessions under sub-section (1) of section 36-D of the N.D.P.S. Act. Judge Ghare seems to have made a distinction between offences committed in the period 4-1-1991 to 5-4-1991. This seems to rest on his making a distinction between the creation of a Court and the appointment of a Judge to man it. The distinction is without any significance for the constitution would be incomplete unless a Judge is appointed to man the created Special Court. Then third category would be of offences committed after 5-4-1991. Here, the jurisdiction would unquestionably be that of the Special Court. Judge Ghare has to be sustained when he says that he does not have jurisdiction to entertain cases relating to offences committed prior to 4-1-1991. As a matter of fact the disability extends right upto 5-4-1991. His order to the contrary is varied as passed in Criminal Applications Nos. 1435 and 1436 of 1992.
6. This brings me to consideration of the question of bail. It will be better to take these cases separately. Judge Ghare has granted bail to applicant in Criminal Application No. 1739 of 1992 on what he describes an ” a peripheral matter”. Having come to the conclusion that he had no jurisdiction in respect of offences committed prior to 4-1-1991, the learned Judge should have returned the bail application to the person claiming bail for presentation to the proper Court. It appears that there was a virtual tug-off war between Judge Ghare and the Sessions Judge the former holding that he did not have jurisdiction and the latter contending the contrary. The better was to resolve this difference was to bring the matter to the notice of the High Court for exercise of its power under Article 227(1) of the Constitution. This article confers upon the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Special Courts, not to speak of the Sessions Court, are under the jurisdiction of the High Court and the High Court was competent to issue directions to put an end to the unseemly tossing of cases from Judge to Judge. Be that as it may. I do not propose to set aside the order of bail granted to the applicant in Criminal Application No. 1739 of 1992 completely. This is because the said applicant has been granted interim bail to attend to his ailing mother. However I propose to limit the period of bail to the 17th of this month. In the event of applicant not obtaining an extension from the competent Court he will have to surrender on the day next after 17-8-1992.
7. In Criminal Application No. 1692 of 1992 the first respondent has been granted bail on two grounds : medical and on merits. Again, if Judge Ghare had no jurisdiction-and that is the view taken by him-he should have directed and first respondent to approach a Court having jurisdiction rather than proceed to consider the application moved by the first respondent on merits. I do not desire to say anything on the merits and that is with a view to prevent prejudice to either party in the hearing which will take place before a competent Court. The learned Public Prosecutor wants me to cancel the bail granted to the first respondent arguing that section 37 of the NDRS Act excludes the grant of bail to a person like the first respondent. In support of this contention, the learned Public Prosecutor relies upon Narcotics Control Bureau v. Kishan Lal and others, reported in 1991 Cri.L.J. 654. So far as the statue goes the decision relied upon by the learned Public Prosecutor fully supports his view. But there is extra-ordinary power conferred upon this Court vide Article 226 of the Constitution. Sub-article (1) empowers every High Court to issue to any person or authority within its territories directions, orders or writs for the enforcement of rights conferred by Part III and for any other purpose. In the present case, I am deferring the making of a direction consequent to the setting aside of the order of bail passed in favour of the first respondent by Judge Ghare. The direction is a quashing of the said order but coupled with the direction that the cancellation shall take effect after the 17th of August, 1992 unless renewed by an order of a competent Court. The ad-interim order restraining him from availing of the bail order shall come into effect on 18th August, 1992 unless his liberty is continued by an order of a competent Court. The same facility cannot be extended to the first respondent in Criminal Application No. 1693 of 1992, and this, because he is a foreigner. The order in his favour is vacated though he will have the liberty to move a competent Court for grant of bail. I make it clear that in respect of the first respondent of Criminal Application No. 1693 of 1992 nothing said here will come in the way of the said respondent, whenever a fresh bail application is moved by the said respondent. In respect of this person, the learned Sessions Judge is directed to make a special assignment so that the case against him can begin within next 30 days and be disposed of by the end of this year. Applications disposed of as above.
8. Mr. Gupte applies for stay of the operation of availment of bail by respondent No. 1 in Criminal Application No. 1692 of 1992. This prayer is opposed by respondent No. 1’s Counsel. The application is rejected having regard to the very short period given to respondent No. 1 to renew his bail application to a competent Court. The jail authorities to act on the ordinary copy of the operative part of the order to be certified by the Sheristedar in Criminal Application No. 1692 of 1992.