BANKA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The two Criminal Revisions and the two Criminal Misc. Cases had been placed before our learned brother Pasayat, J. Because of the importance of the questions involved and the impact of certain decisions of this Court with which brother Pasayat, J. did not prima facie agree, he has referred these cases to a Division Bench. The learned Single Judge has formulated four questions: (1) Whether an excise official investigating into an offence under the Act is a Police Officer empowered to file a charge sheet or he is required to file a complaint under Section 190 of the Code of Criminal Procedure, 1973 (in short 'the Code')? (2) In a case where the prosecution report is not submitted within fifteen days, which Court has jurisdiction to deal with the matter, in the absence of establishment of a Special Court constituted under Section 36 of the Act. (3) Whether a remind beyond the aforesaid period is permissible by the Magistrate? In case such a remand is not permissible does the accused get bail automatically? In this context, reliance is made to a decision of this Court in 1991 (1) OLR 549; Sauti Jena and Anr. v. State. A learned single Judge of this Court observed that all considerations which apply in law to the question of enlargement on bail under the proviso to Section 167(2) of the Code become applicable to a person forwarded under the Act to the Magistrate after expiry of fifteen days or seven days from the date of remand, as the case may be. (4) In the absence of any specific provision to show that the Court of Session shall be the Special Court for alt purposes, whether a person can be forwarded to it by a Magistrate in terms of Section 36 -A(1)(c). All these questions involve interpretation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act'). Before examining the questions posed, it would be appropriate for us to notice that the Parliament enacted the legislation to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances. Being cognisant with the large scale illicit drugs traffic and drug abuse at national and international level and finding several deficiencies in the law that was in force which was not sufficiently deterrent to meet the challenge of well organised gangs of drug traffics, the Parliament has enacted the legislation. The said legislation has provided deterrent punishment for drug trafficking offences. After the enactment of the legislation in the year 1985 when the legislature found that the offenders are being released on bail on technical grounds they felt the need to amend the law to further strengthen it and accordingly it was amended by Act 2 of 1989. The main objects of the amending Act are (i) to bring certain controlled substances which are used for manufacture of narcotic drugs and psychotropic substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof, (ii) to provide that no sentence awarded under the Act shall be suspended remitted or commuted, (iii) to provide for pre -trial disposal of seized drugs, (iv) to provide death penalty and second conviction in respect of specified offences involving specified quantities of certain drugs, (v) to provide for forfeiture of property and a detailed procedure relating to the same, (vi) to provide that the offences shall be cognizable and non -bailable. It is a cardinal principle of construction that the preamble of an Act contains in it the mischief which the Act seeks to be remedied and broadly describes the scope of the Act and consequently it is permissible to have recourse to it as an aid in construing the enacting provisions. Their Lordships of Supreme Court in the case of Giridhari Lal and Sons v. Balbir Nath Mathur and Ors. (AIR 1986 SC 1499) observed : 'The primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to se interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so -called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word, if necessary.' With the aforesaid background, we would now examine the points posed for our consideration by our learned brother Pasayat, J. But before that, it would be appropriate to notice the facts of each of the four cases.

(2.) CRIMINAL Revision No. 432/91 has been filed by the accused invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer that the Criminal Proceedings be quashed on the ground that the commitment made by the S. D. J. M., Jharsuguda without complying with the provisions of Section 202(2), proviso being null and void, the Sessions Judge has no jurisdiction to proceed with the trial.

(3.) CRIMINAL Revision No. 245/91 has also been filed by an accused invoking the jurisdiction under Section 482, Cr. P. C., for the selfsame relief, namely, to quash the criminal proceedings on the ground that the commitment made by the Magistrate being null and void for non -compliance of proviso to Sub -section (2) of Section 202 Cr. P. C., the Sessions Judge does not retain any jurisdiction for trial.