SHARAFAT ULLAH Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for issuing a writ of habeas corpus to secure the release of the petitioner, who is under detention in Case Crime No. 217 of 1992, under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 of P. S, Jaidpur, district Bara Banki.

(2.) THE case of the petitioner is that he was, arrested on 8-7-1992 by the police of P. S. Jaidpur, district Bara Banki in connection with the abovenoted case and since then he is in jail. After completion of investigation, the police filed a charge-sheet on 7-10-1992 before the learned Sessions Judge, Bara Banki who took cognizance of the offence on the same day. On 22-1-1993 the learned Sessions Judge transferred the case to the Court of 111 Additional Sessions Judge, Bara Banki and at present the trial is pending before that Court. It is alleged that after receiving the case by transfer the learned Additional Sessions Judge did not pass any remand order under Section 309 Cr PC, which undisputedly governs the remand of an accused during trial. According to the petitioner the proviso to Section 309 (2) requires that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time. THE petitioner has submitted that in view of the above provision a remand cannot be granted for the entire period of trial but has to be given on each day of hearing on adjournment of the case. THEre is no order or direc tion from 25-1-1993 remanding the petitioner to jail custody and hence the detention of the petitioner with effect from 25-1-1993 is absolutely illegal. THE petitioner has also alleged that his detention is illegal in view of the fact that the warrant of remand has not been issued in accordance with rules in the prescribed form. THE petitioner has accordingly urged that he is in illegal detention and is entitled to be released unconditionally.

(3.) WE have heard the learned Counsel for the parties at length, it may be observed at the outset that there is no force in the contention of the petitioner that the Sessions Judge has no jurisdiction to grant remand to an accused person under Section 309 (2) Crpc for a period exceeding 15 days at a time by reason of the first Proviso to that Section. The offences under the NDPS Act are normally, triable by the Special Courts constituted under Section 36 of the Act. But by virtue of the transitional provisions contained in Section 36-D of the said Act any offence committed under the Act or after the commence ment of the NDPS (Amendment) Act, 1988, until a Special Court is constitu ted under Section 36 shall notwithstanding anything contained in the Code of Criminal Procedure, be tried by a Court of Session. Thus, it is clear that a Sessions Judge while trying an offence under the said Act functions as a Court of Session and not as a Magistrate. Where it is intended that the power of the Magistrate shall be exercised by the Special Court under the Act, a clear provision has been made to that effect. The provisions of the first Proviso to Section 309 (2) are not attracted and, therefore, the Sessions Judge has juris diction to postpone or adjourn the trial at such terms as he thinks fit for such time as he considers reasonable and by a warrant to remand the accused if in custody as provided in the substantive provision therein. There is no dispute about the fact that Special Court has not been constituted in Bara Banki and so in the matter of remand under Section 309 (2; Crpc it is not correct to say that the learned Sessions Judge cannot remand an accused person to custody under this section for a term exceeding IS days at a time.