ANURADHA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) These appeals under Sec. 12 of the Maharashtra Control of Organised Crime Act, 1999, (the MCOCA) have been filed by the accused persons in Crime No. 186/2025, Sultanpuri, Police Station aggrieved by the order dtd. 18/12/2025 as per which the trial court dismissed their applications for default bail. The appellants/accused persons as per the aforesaid FIR are alleged to have committed the offences punishable under various Ss. of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act), Sec. 113 and 238 of Bharatiya Nyaya Sanhita, 2023; Sec. 18(c) of the Drugs and Cosmetics Act, 1940 and Ss. 3 and 4 of the MCOCA.

(2.) According to the learned counsel for the appellants/accused persons, the impugned order has been passed by the Link Judge in the absence of the Special Judge and hence invalid. Referring to Ss. 5 and 6 of the MCOCA, it was argued that it is only the Special Court constituted under the MCOCA that has the power to pass orders relating to offences under the MCOCA, and hence the impugned order cannot be sustained. It was submitted that an Additional Sessions Judge, who has not been appointed in accordance with Sec. 5(3) of the MCOCA, has no jurisdiction to deal with MCOCA cases. Reliance is placed on the dictum in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, to submit that jurisdiction is purely a matter of legislative mandate, and neither the High Court nor the Supreme Court can confer jurisdiction on a particular court without following the due procedure of law in accordance with the statute. A judge can exercise powers under MCOCA only if appointed through the procedure prescribed under the statute, and in the absence of a notification constituting a Special Court under Sec. 5 of the MCOCA, no court can assume such jurisdiction. Reliance was also placed on the dictum in Jamiruddin Ansari v. Central Bureau of Investigation &Anr. AIR 2009 SC 2781 to state that MCOCA has an overriding effect over the CrPC. It was also submitted that under Sec. 21(2)(b) of MCOCA, only the Special Court has the power to extend custody, and neither the Link Additional Sessions Judge nor any other court can exercise that power. He further submitted that any application relating to the extension of the investigation or custody must be postponed till the Special Court is constituted. Lastly, he submitted that the only remedy left in the absence of a Special Court would be to approach the High Court seeking directions to the State to appoint a Special Judge, as no judge other than a duly appointed Special Judge can assume jurisdiction under MCOCA, and continuation of custody otherwise would be wholly without authority of law. Reference was also made to Abdul Rashid Sikandersab Kulkarni & Ors. vs. The State of Maharashtra & Anr. (Criminal Writ Petition No. 1306/2006) dtd. 6/7/2006, Yogesh Mittal vs. State of NCT of Delhi 246 (2018) DLT 582 (DB), Khalid Ahmad & four others vs. The State of M.P. (M.Cr.C. No. 1395/2016) dtd. 11/9/2017.

(3.) Per contra, it was submitted by the learned Special Public Prosecutor that as per Annexure E dtd. 27/10/2025 Link Roster, the Link Judge was fully empowered to pass orders in the absence of the Special Judge, and hence, there is no infirmity in the impugned order. It was submitted that, admittedly, the Link Judge is a member of the Delhi Higher Judicial Services and hence qualified as per the requirement in Sec. 5(3) of the MCOCA. He further submitted that it is not the Presiding Officer but the Court, which is designated with the powers of the Special Court. Reference was made to notification no. F.6(33)/2009-Judl. dtd. 15/9/2010. The learned SPP also submitted that this Court had given directions in Rambeer Shokeen v. State (NCT of Delhi), 2017 SCC OnLine Del 8504, that in the event of the presiding officer of Special Court being not available either on account of leave of absence or due to other official engagements, it is necessary that arrangements for link courts, similar to the courts of the Metropolitan Magistrates, as per long-standing practice, is put in position. For the sake of argument, even if the period of 14 days extended by the Link Judge vide order dtd. 10/12/2025 is treated as unauthorised by law, it was contended that subsequent extension of the period of investigation by the Special Judge on 18/12/2025 retrospectively validated the former. Lastly, he also contended that though this issue did not arise before the Apex Court while considering the appeal arising out of Rambeer Shokeen (Supra), the doctrine of merger is applicable. In support of the arguments, reference was made to the dictums in Sukhbir Singh v. State NCT of Delhi Through SHO, 2025 DHC 6658 and Rambeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405.