ASHWNI @ KAMLESH SAHU Vs. STATE OF M.P.

JUDGEMENT

(1.) CHALLENGE in this petition under Article 227 of the Constitution is made to an order dated 3rd July, 2007 passed by the District and Sessions Judge, Guna on a reference made by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) in respect of exercising the powers to hear the bail applications under Section 438 and 439 Cr.P.C. The facts essential on the basis of which the District Judge and Sessions Judge, Guna (hereinafter referred to as the District Judge) has arrived at a conclusion in respect of the matters of NDPS Act, are that the word used in the NDPS Act, the "Court" not only necessarily means the Special Court constituted under the NDPS Act. It has been held by the District Judge that other Courts, i.e., Sessions Court apart from the Special Court is empowered to hear the applications filed under Section 438 and 439 Cr.P.C., when an offence is registered under Section 8/20 of the NDPS Act.

(2.) THE learned senior counsel for the Petitioner at the very outset has submitted that once the provisions of the NDPS Act are applicable and the Special Courts are notified and constituted, there appears to be no justification for holding that the other Sessions Judge are empowered to hear the bail applications under Section 438 Code of Criminal Procedure The learned senior counsel in support of his contention has referred to various provisions of the NDPS Act. The Petitioner has also relied upon the following judgments on the question of maintainability of the writ petition:

(3.) THE first question which has to be decided in this petition is whether a writ petition under Article 227 of the constitution is maintainable in respect of the criminal matters ? The Apex Court in the case of State of Haryana and Ors. v. Bhajan Lal and others, 1992 Supp (1) SCC 335, while dealing with a question of quashing. First Information Report has decided the issue regarding maintainability of the writ petition by the High Court while exercising the power under Article 226 of the Constitution. The Apex Court has held that under Article 226 or under the inherent powers under Section 482 of the Code, the High Court can exercise powers either to prevent abuse of the process of any court or to secure the ends of justice. The matter relating to scope and power of the High Court to quash the criminal proceedings in exercise of the powers under Article 226 and 227 of the Constitution or 482 of the Code of Criminal Procedure was again subjected to judicial scrutiny by the Apex Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and others, : AIR 1998 SC 128 and in paragraphs 22 and 26 of the judgment.