DAVID BERTRAND Vs. NARCOTIC CENTRAL BUREAU

JUDGEMENT

(1.) THE case has come up before this Bench on a reference made by the learned Single Judge. The question referred for decision is quoted herein-below: "Whether a person can be arrested and detained in judicial custody by way of remand or otherwise in respect of the offence punishable under chapter IV of the N.D.P.S Act, without registering a case as required under Section 154, Code of Criminal Procedure, and pending the filing of a complaint by the duly Authorised Officer, as contemplated by Section 36-A(1)(d) of the Act."

(2.) THESE are the facts, briefly stated: The petitioner had been arrested on August 10, 1998 near the post office Kullu by Narcotic Control Bureau, Chandigarh when he was alleged to have been found in possession of 2.5 gms. Cocaine. The petitioner is presently lodged in judicial custody. On the petitioner's applying for enlargement on bail under Section 439 of the Code of Criminal Procedure, 1973 ('the Code' hereinafter), the learned Sessions Judge, Kullu and Lahaul Spiti Districts, at Kullu dismissed his application on 2.9.1998. The petitioner has approached this Court again under Section 439 of the Code for grant of bail and setting aside the order passed by the learned Sessions Judge.

(3.) BEFORE we appreciate the submissions made by learned counsel on both sides, it is necessary to understand the scheme of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). The Act is divided into six Chapters containing 83 Sections. Chapter-II entitled 'Authorities and officers' empowers the Central as well as the State Government to make appointments of certain officers, etc. for the purposes of 'the Act'. Chapter-IV defines the offences punishable under the Act and prescribes the penalties therefor. Special Courts are envisaged by Section 36 and Section 36-A for the trial of offences punishable under the Act. Every offence punishable under the Act is made cognizable by virtue of Section 37, notwithstanding anything contained in the provisions of the Code. Then comes Chapter-V which outlines the procedure to be followed by the officers appointed for the implementation of the various provisions of the Act. Sub- section (1) of Section 41 empowers a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class, specially empowered, to issue a warrant for the arrest of any person suspected of having committed any offence punishable under the provisions of Chapter IV of the Act and for the search of premises, conveyance or place in which such person is suspected of having kept or concealed any narcotic drug or psychotropic substance. Sections 41(2), 42, 43 and 44 confer on officers named under the Act the powers of arrest, search and seizure without any order or warrant from the concerned Magistrate. Section 51 provides that all warrants issued and arrests, searches and seizures made shall be governed by the provisions of the Code unless such provisions are not inconsistent with the provisions of the Act.