RASHID KHAN ALIAS RASHID Vs. STATE

JUDGEMENT

(1.) In all these bail applications under Section 439, Cr. P.C., important questions of law of general importance have been raised, which also involve interpretation of Sections 36-A and 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (In short, 'The Act' or 'NDPS Act'). The questions may be formulated as under :-

(2.) In all the three bail application the accused persons were arrested under Section 8/18 and 8/19 NDPS Act but cognizance by the Special Judge was taken after 90 days of their arrest.

(3.) The main contentions of the learned counsel for the petitioners are that a judicial Magistrate can grant remand not exceeding 15 days in the whole, when a person accused of or suspected of the commission of an offence under NDPS Act is forwarded to him under Sub-Section (2) or Sub-Section (2-A) of Section 167 of the Code of Criminal Procedure, the Special Court constituted under the Act is only empowered to take cognizance in such cases. If a charge-sheet is not filed within 90/60 days, as the case may be, after completion of investigation, or cognizance is not taken by the Special Court within this period, then the accused are entitled to be released on bail under the proviso (a) to Sub-Section (2) of Section 167. In other words, the contention is that the provisions of bail contained in Sub-Section (2) of Section 167, Cr. P.C. are mandatory in nature, and they are not controlled or fettered from the provisions contained in Section 37(1)(b)(ii) of the NDPS Act. On the other hand, learned counsel appearing from the Narcotic Department, and the learned P. P. vehemently contended that the provisions contained in Section 37 of the NDPS Act have an over-riding effect to all the provisions contained in the Code of Criminal Procedure regarding bail, which may be either under the proviso to Sub-Section (2) of Section 167 or Section 437/439, Cr. P.C. They further urged that no bail can be granted to an accused under the NDPS Act in an offence punishable for a term of imprisonment of five years or more, if the conditions contained in Sub-Section (b)(ii) of Sub-Section (1) of Section 37 are not satisfied. According to them, the special enactment will prevail over the general provisions of the Code. Then it was contended that even in Sub-Section (2) of Section 167, Cr. P.C. bail cannot be claimed as of right by an accused after the failing of the charge-sheet, if he is involved in a non-bailable serious offence or offences. About taking cognizance the contention is that cognizance of the offence under the NDPS Act could be taken both by the Magistrate and the Special Court constituted under the Act.