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TMI Blog1995 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary implication. As shown by us, there is no such provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant.Appeal dismissed. - CRL.A. 611 OF 1995 - - - Dated:- 1-5-1995 - VERMA, JAGDISH SARAN AND MANOHAR SUJATA V., JJ. JUDGEMENT J. S. VERMA, J. Leave granted in special leave petitions. The common question of law for decision is: whether the proviso to sub- section (2) of section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act .) to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of the respondents who were arrested for the commission of offences under the N.D.P.S. Act in default of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof, the application of the proviso to sub-section (2) of Section 167 Cr. P.C. is excluded in the case of a person accused of any offence punishable under the N.D.P.S. Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the N.D.P.S. Act supports the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. instead of indicating its exclusion in such cases. The relevant provisions in the Code of Criminal Procedure, 1973 are as under: 4. Trial of offence under the Indian Penal Code and other laws. - (1) AH offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise deal with ac-cording to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner trying or otherwise dealing with such offences. 167. Procedure when investigation cannot be completed in twenty-four hours. - (1) Whenever any person is arrested and detained in custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Offences triable by Special Courts. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate .is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate : Provided that where such Magistrate considers - (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... searches and seizures made under this Act. Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the N.D.P.S. Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 Cr. P.C.; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forward to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr. P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr. P.C., particularly sub-section (2) thereof, is an indication that no part of sub- section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S. Act. This conclusion is reinforced by some other provisions of the N.D.P.S. Act, Section 36-C says that save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court. This also indicates that the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 CR. P.C. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible. Sub-section (3) of Section 36-A provides that the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the accused who has to show that there are reasonable grounds for believing that he is not guilty. The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. Act is in the nature of a condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P.C., it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the N.D.P.S. Act more stringent. Accordingly, provision in Section 37 to the extent it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t statute to meet an extraordinary situation as in the N.D.P.S. Act. It is also significant that notwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is nothing in Section 37 of the N.D.P.S. Act similar to sub-section (4) of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections (8) and (9) of Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. in cases of arrest made for commission of offences under the N.D.P.S. Act, is quite evident. It is settled that 'the court will have no power of remand of an accused to any custody unless the power is conferred by law . (See Natabar Panda Bisnu Charon Panda Batakwshna Panda Babaji Panda v. State of Orissa, [1975] Supp. SCR 137). The power must, therefore, be traced to some provision of the statute. There is clear mention of Section 167 Cr. P.C. in the N.D.P.S. Act for the exercise of this power. Ordinarily, there must also be an outer limit prescribed by specification of the total p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed to be, because of the courts. It would be so under the command of the Legislature. (at pages 142-143) (emphasis supplied) The learned Additional Solicitor General placed strong reliance on the decision of this Court in Narcotics Control Bureau v. Kishan Lal and Others, [1991] 1 S.C.C. 705. The only thing decided in that case is that the power of the High Court to grant bail under Section 439 of the Code of Criminal Procedure is subject to the limitations contained in the amended Section 37 of the N.D.P.S. Act since those additional limitations are applicable to the High Court also in the matter of granting bail. That is a different question. That decision does not, therefore, answer the question which arises for consideration in the present case. No other decision of this Court has been relied on by either side at the hearing before us to support a different view. For the aforesaid reasons, these appeals are dismissed resulting in the interim orders made herein being vacated. However, it is made clear that this decision will not affect any other order made in accordance with law which may be in force permitting the continuance in detention of the respondents. App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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