NAZMA KHATUN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) An interesting question is raised in the instant application seeking a writ of habeas corpus for immediate release of an under trial who is facing a prosecution under Sec. 21(c) of the N.D.P.S. Act.Shorn of details the challenge is to the legality of the order of remand dtd. 19/2/2019, committing the accused to judicial custody till 25/3/2019 on the premise such remand is for a period exceeding 15 days is violation of the first proviso to sec. 309(2) Cr.P.C. and, therefore, illegal.

(2.) Relying on the first proviso to sec. 309(2) of the Code of Criminal Procedure, Mr. Bhattacharyya, learned Counsel appearing for the petitioner submits that the impugned order remanding the accused to custody for a period exceeding 15 days is illegal and without jurisdiction. In his usual fairness, he admits that the said issue was considered by a Co-ordinate Bench of this Court in Aparna Makhal Vs. State of West Bengal, 2014 (3) RCR (Criminal) 18, wherein it was held that the limitation engrafted in the first proviso to Sec. 309(2) does not apply to a Special Court under NDPS Act. He submits that the aforesaid authority requires reconsideration as the Bench had not considered the definition of the word 'Magistrate' under Sec. 3 (32) of the General Clauses Act, 1897. He relies on various authorities in support of his contention.

(3.) On the other Mr. Bapuli, learned Additional Public Prosecutor along with Mr. Ahmed, appearing for the State submits that the writ is not maintainable as the petitioner had been remanded to custody in terms of a judicial order passed by a competent court. He submits the said issue is no longer res integra in view of the ratio in Aparna Makhal (Supra).