DAJI GOVIND KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application for bail by the petitioner who was arrested on 24th June, 1989 by N. M. Joshi Marg Police Station in C. R. No. 8/89 under section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused was produced from time to time before the Metropolitan Magistrate who authorised his detention. He was produced before the Additional Sessions Judge on July 25th, 1989. The present application for Bail was presented on August 25, 1989.

(2.) THE main ground on which bail is being sought is that the detention by the Metropolitan Magistrate which was for a period exceeding 15 days was in contravention of section 36 (A) (i) (b) of the Act, as the Magistrate had no powers to authorise detention for a period exceeding 15 days, the duty of the Magistrate in the event of the detention being unnecessary to forward him to the Special Court having jurisdiction and since the initial detention pursuant to the orders of the Magistrate when it exceeded 15 days was unauthorised, further detention of the petitioner in continuation of that period as authorised by the Additional Sessions Judge would not cure the unauthorised detention, under the orders of the Magistrate and would not give validity for the further detention, and would enable the petitioner to claim bail as of right. It is also contended that the Special Court under the amended provisions of the N. D. P. S. Act do not confer power to grant bail on the Special Judge and, therefore, it is only by an application to this Court that the petitioner could ask for bail.

(3.) WHILE considering this position, it would be useful to refer to the provisions under section 36-A of the Act which makes all offences under it triable only by the Special Court constituted and limits the power of the Magistrate under sub-section (2) or sub-section (2-A) of section 167 of the Code of Criminal Procedure, 1973, to authorise detention in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive Magistrate. Under the proviso to sub-section (1) the Magistrate to whom such a person is forwarded or at any time before the expiry of the period of detention, the Magistrate considers that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. Since Special Court has not so far been established, under section 36-D which is a transitory provision, this jurisdiction has to be exercised, upon the view taken by this Court, by the Court of Sessions. It is apparent that the petitioner was not produced before the Additional Sessions Judge until 25-7-1989 i. e. more than a month after his arrest and in the meanwhile orders of detention had been obtained from the Magistrate. There can be no doubt about the position that the detention under the orders of Magistrate for a period exceeding 15 days would be unauthorised. The submission on behalf of the petitioner was that once this position is accepted, it would follow that the further detention authorised by the Additional Sessions Judge would also be unauthorised. Reliance was placed on the observations in (Hussainara Khatoon v. State of Bihar) A. I. R. 1979 Supreme Court 1377, to the effect that, when an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide t its own costs a lawyer to the under-trial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of section 167 and the Magistrate must take care to see that the right of the under trial prisoner to the assistance of a lawyer provided at State cost is secured to him". The position here is that the limitation of 90 days is not yet over and the position that may arise under section 167 of the Code of Criminal Procedure does not obtain. The only question is even assuming that the detention under the orders of the Magistrate was unauthorised, would it affect the validity of the order of detention passed by the Additional Sessions Judge and in this respect, there is nothing in the aforesaid case which would justify the submission that the detention being continuous, the same would be vitiated.