FELIX OHIMAIN EVBOROKHAI Vs. STATE OF GOA

JUDGEMENT

(1.) THESE criminal applications are placed before us in the light of the order dated 10th August, 2011, passed by the learned Single Judge of this Court Hon'ble Mr. Justice A.P. Lavande. Mr. Justice A.P. Lavande was of the opinion that the following question requires consideration by a Bench of Two Learned Judges of this Court :

(2.) HOWEVER , the narration of the facts would not be complete unless we state that the applicants in both these cases press their bail not on merits, but only on this ground. Further, the applicants were remanded from time to time initially and during the pendency of their bail applications before this Court on 24th June, 2011, by producing them before the Special Judge appointed by the Government vide Notification dated 28th January, 2011. Therefore, all that remains for consideration is whether the order of remand passed by the Judge on 4th February, 2011 being in the teeth of the Government notification appointing the learned Principal District & Sessions Judge, as the Special Judge under the NDPS Act, is legal, valid and authorised by law.

(3.) THE argument which was raised before the learned Single Judge (A.P. Lavande, J.) and reiterated albeit in different manner, is that in terms of Section only one Single Judge can function as a Special Court. After the appointment of Ms. Nutan Sardessai, as Special Judge by order dated 28th January, 2011, Judge Shri P. V. Sawaikar could not have exercised powers under the NDPS Act. His orders remanding the applicants to custody are, therefore, patently illegal. The detention of the applicants from 4th February, 2011 is illegal and even the subsequent remand was coram non judice being granted by a Judge who is not appointed as the Special Judge. Therefore, all the remand orders are illegal and void ab initio. In other words, once the order passed on 4th February, 2011 is patently illegal and void ab initio, the subsequent remand orders cannot cure that initial lack of jurisdiction and authority and, therefore, they cannot be relied upon by the prosecution. Resultantly, the detention is void and non est entitling the applicants to be released on bail. There is no question of this order dated 4th February, 2011 being cured by a subsequent order of remand passed by the Special Judge Ms. Nutan Sardessai dated 24th June, 2011. Thus, the orders passed from 4th February, 2011 till the filing of the present bail application on 16th March, 2011, are all illegal. The right to bail cannot be nullified by relying on the subsequent order of remand passed by even a duly appointed Special Judge Ms. Nutan Sardessai.