RAKESH KUMAR Vs. STATE

JUDGEMENT

(1.) On difference of opinion arising between the two Hon'ble Judges of this Court on questions of law, who heard the petition on merits, the matter has been referred to the Full Bench.

(2.) The legal questions which arise for decision are as to whether in view of the provisions of Section 36-A to 36-D of the Narcotic Drugs & Psychotropic Substances Act 1985 (hereinafter to be called N.D.P.S. Act), was the Metropolitan Magistrate entitled to remand the petitioner in judicial custody during the investigation of the case registered against the petitioner vide F.I.R. No.532 of 1992 dated October 30, 1992 from time to time for 15 days at a time till the challan is filed and secondly, in case it were to be held that the Metropolitan Magistrate had no power to remand the petitioner injudicial custody for a period more than 15 days in all, whether the illegal detention of the petitioner under the remand orders made by the Metropolitan Magistrate from time to time entitles the petitioner to be released forthwith even though during the pendency of this writ petition, after the filing of the return, the petitioner is being remanded to judicial custody validly during the trial of the case by the Additional Sessions Judge. In other words, the question to be decided is whether the validity of the detention of the petitioner is to be determined on the day of the return or even on the date of the hearing of the matter on merits.

(3.) On the first question, Mahinder Narain,J. has opined that Metropolitan Magistrate had no power to remand the petitioner for a period beyond 15 days. On the second question, he gave the view that validity of detention is to bejudged on the date of the return and not on the date of hearing. On the other hand, Jaspal Singh, J. did not express any opinion on the first question and on the second question he held that the validity of the detention is required to be seen on the date of hearing.