STATE OF ORISSA Vs. FAGU MALLIK

JUDGEMENT

(1.) It having come to the notice of this court that persons accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter called the Act, have been released on bail on the ground that such accused cannot be remanded to custody beyond a period of fifteen days by a Judicial Magistrate and a Sessions Judge cannot exercise the power of remand in as much as he can only try an offence till Special Court is constituted as stated in section 36-D of the Act, suo motu cognizance was taken to examine the legality of the aforesaid orders of release on bail. As the act has been enacted to take care of the growing menace of drug-trafficking and drug-adiction, a need was felt to examine whether the mandatory provisions finding place in section 37 of the Act stating as to when a person accused of offences under the Act can be released on bail can become inoperative due to aforesaid reason.

(2.) The ground finding place in these orders having, however, raised an important question, it was desired that these cases should be placed before a Bench of the Court to lay down the law in this regard authoritatively.

(3.) In so far as the power of the Magistrate is concerned of which mention has been made in clause (b) of sub-section (1) of section 36-A of the Act the same has already been decided by a Bench of this Court in Bimbadhar Behera v. State of Orissa judgment in which was rendered on 12.8.1993, according to which the Magistrate has power to remand even beyond ninety days, not to speak of fifteen days, as is the view expressed in the impugned orders. This was so stated by referring to what has been laid down by a full Bench of this Court in Banka v. State.