1993 (4) TMI 313 - HC - Customs

Summary

Issues Involved:
1. Entitlement to default bail under Section 167(2)(a) of the Criminal Procedure Code, 1973, in light of Section 37 (amended) of the NDPS Act.
2. Refusal to accept the charge-sheet on specific grounds.
3. Legal right to default bail due to lapse in forwarding the accused to the Special/Session Court under Section 36-A(1)(b) of the NDPS Act.
4. Compliance with Section 36-A(1)(b) in the absence of Special Courts and the role of Session Courts under Section 36-D of the NDPS Act.

Detailed Analysis:

Issue 1: Entitlement to Default Bail under Section 167(2)(a)
The primary question was whether the accused are entitled to default bail due to the Investigating Agency's failure to submit the charge-sheet within 90 days, considering the limitations imposed by Section 37 (amended) of the NDPS Act. The Court held that in light of the Supreme Court's decision in *Narcotics Control Bureau v. Kishan Lal*, the NDPS Act, being a special statute with stringent provisions, overrides the general provisions of the Criminal Procedure Code. Section 37 (amended) explicitly restricts the Court's power to grant bail, emphasizing that no person accused of certain offenses under the NDPS Act shall be released on bail unless specific conditions are met. Therefore, despite the delay in filing the charge-sheet, the accused were not entitled to default bail.

Issue 2: Refusal to Accept the Charge-Sheet
The Court addressed whether a charge-sheet can be refused on the grounds that it was not presented on specific days earmarked for a particular Police Station or because the FSL report/muddamal was not forwarded along with it. The Court found such practices to be patently illegal. It emphasized that the alleged practice of accepting charge-sheets only on specific days could lead to serious consequences, such as the release of accused persons on technical grounds. Additionally, it cited the decision in *Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi*, which held that the absence of the Chemical Analyser's report does not render a charge-sheet interim or incomplete.

Issue 3: Legal Right to Default Bail under Section 36-A(1)(b)
The Court examined whether the failure to forward the accused to the Special/Session Court within 15 days as mandated by Section 36-A(1)(b) of the NDPS Act confers a right to default bail. It concluded that while Section 36-A(1)(b) aims to ensure speedy trials by requiring the Magistrate to forward the accused to the Special Court, this procedural lapse does not automatically entitle the accused to bail. The Court reasoned that the NDPS Act, through Section 37 (amended), places stringent conditions on granting bail, and these conditions take precedence over procedural lapses. The Court also noted that releasing the accused on bail due to procedural delays would undermine the Act's objective of stringent control over narcotic drugs and psychotropic substances.

Issue 4: Compliance with Section 36-A(1)(b) in Absence of Special Courts
The Court discussed the applicability of Section 36-A(1)(b) in areas where Special Courts have not been constituted and the transitional jurisdiction of Session Courts under Section 36-D. It clarified that until Special Courts are established, Session Courts are deemed to be Special Courts for the purposes of the NDPS Act. Consequently, there is no requirement for committal proceedings, and the accused should be forwarded directly to the Session Court. The Court found that the Sessions Judges had erred in interpreting these provisions and emphasized that the NDPS Act's scheme aims to expedite trials by bypassing committal proceedings.

Conclusion:
1. Default bail under Section 167(2)(a) of the Criminal Procedure Code is not applicable in NDPS cases due to the overriding effect of Section 37 (amended) of the NDPS Act.
2. Practices of refusing charge-sheets on specific days or due to the absence of the FSL report are illegal and must be discontinued.
3. Procedural lapses in forwarding the accused to the Special/Session Court do not confer a right to default bail, given the stringent conditions of Section 37 (amended).
4. In the absence of Special Courts, Session Courts are deemed Special Courts under Section 36-D, and there is no need for committal proceedings.

The Court dismissed all three Misc. Criminal Applications, directing the issuance of necessary circulars to ensure compliance with the NDPS Act's provisions.