ASALAMKHAN Vs. STATE OF M P

JUDGEMENT

(1.) Heard the applicant has filed this application seeking his release on bail on the ground that his detention in Judicial custody is illegal in view of the fact that the Magistrate, First Class, Ratlam had no power to remand the applicant to judicial custody in view of S. 36A (1) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) which empowers the Magistrate to authorize detention of a person accused or suspected of the commission of an offence under the NDPS Act. According to Shri Pyare Miya, learned counsel for the applicant the Magistrate has not been given any power to grant a remand of more than 15 days in all i.e. including the police remand or the judicial remand and, therefore, any order detaining the accused in custody is not authorized by law. Shri Pyare Miya has placed reliance on a Single Bench judgment of this court in Kanwarlal v. Union of India, (Misc. Cr. Case No. 664 of 90) and a Division Bench judgment of the Calcutta High Court in Kalam Khan v. State.

(2.) On the other hand the learned Panel Lawyer for the State Shri Desai has argued that since the case already been committed to the court of Sessions and charge sheet has been filed, therefore, the remand order passed by the Magistrate becomes immaterial because the provisions of remand are not attracted after the filing of the charge-sheet.

(3.) After considering the respective arguments of the parties and going through the relevant provisions of the NDPS, Act, it is manifest that under Section 36A(l) when a person who is accused or suspected of committing an offence order the Act is forwarded to a Magistrate under sub-section (2) or sub section 2 (a) of S. 167 of the Code of Criminal Procedure, 1973 the Magistrate has a power to authorize the detention of such person in such custody as he thinks fit, but in no case that authorization shall exceed 15, days in the whole if the Magistrate is a Judicial Magistrate and in the event of a Magistrate being an Executive Magistrate the authorization period cannot exceed 7 days. As such when a person arrested for being accused of commission of an offence under the NDPS Act or is suspected of having committed that offence is produced before the Magistrate, the Magistrate while exercising his powers under 5. 167 (2) of the Cr. P.C shall be empowered to authorize the detention of that person either in the custody of the prosecution force or in the judicial custody. But the power of authorization given to the Magistrate under the Act cannot exceed a period of 15 days. Now, if a Magistrate on the expiry of the period of 15 days or any time before the time of expiry of detention finds that detention of such person is necessary, he shall order such person to be forwarded to the Special Court having jurisdiction.