Teru Majhi & Anr vs State Of West Bengal & Ors on 3 April 2014

Teru Majhi & Anr vs State Of West Bengal & Ors on 3 April 2014

Facts of the Case: 

A petition was filed before the Special Court under the NDPS Act, Bankura, seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973.

The petition was related to a case registered at the Patrasayer Police Station, with case number 09/13, dated February 11, 2013. 

The case involved an offense under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

During the proceedings before the Special Court, the maintainability of the bail application was a subject of discussion. 

The learned judge presiding over the case framed a question of law for reference to the higher court (High Court of Calcutta). 

Issues:

Whether a Special Court established under Section 36 of the NDPS Act (deemed Sessions Court) have the authority to consider an application for anticipatory bail (pre-arrest bail petition) under Section 438 CRPC?

Contentions of the Appellant:

Mr. Milon Mukherjee, the advocate for the petitioner, argued before the Trial Court that a petition under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) is maintainable before the Special Court trying offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He referred to Section 5 of the CrPC, which states that the provisions of any special act would apply in addition to the provisions of the CrPC if such a special act declares it to be so.

Mr. Mukherjee contended that the Special Court under the NDPS Act is constituted under the provisions of Section 36 of the NDPS Act and is considered a Court of Session. He argued that Section 36C of the NDPS Act makes the CrPC applicable to proceedings before the Special Court, except where otherwise provided in the NDPS Act. According to him, all provisions of the CrPC, including those related to bail, apply to the proceedings before a Special Court unless specifically excluded by the NDPS Act.

To support his argument, Mr. Mukherjee referred to Section 12AC of the Essential Commodities Act, 1955, which he claimed is similar to Section 36C of the NDPS Act. He cited a previous judgment by the Division Bench of the Court (Pijush Kanti Dey v. State, 1985 Criminal Law Journal page 1664) that held the power under Section 438 of the CrPC can be exercised by the Special Court constituted under the Essential Commodities Act, 1955, in accordance with the proviso to Clause 1(d) of Section 12AA of the Essential Commodities Act, 1955.

Mr. Mukherjee argued that Section 12AA(1)(d) of the Essential Commodities Act, 1955 (amended by the Essential Commodities (Special Provisions) Act, 1981) is similar to subsection (1) of Section 37 of the NDPS Act, 1985.
The Special Court under the NDPS Act has the authority to consider a petition under Section 438 of the CrPC, and the parameters for such consideration are outlined in Section 37 of the NDPS Act. 

Section 37 should not be interpreted to take away the power of the Special Court constituted under Section 36 of the NDPS Act to decide a petition under Section 438 of the CrPC.

Contentions of the Respondent:

Mr. Manjit Singh, the Public Prosecutor representing the State, argued that a Special Court under the NDPS Act, 1985 is not authorized to consider a petition under Section 438 of the Code of Criminal Procedure, 1973 (CrPC).

Mr. Singh pointed out that under Section 36B of the NDPS Act, 1985, the power of the High Court conferred under Chapters XXIX and XXX of the CrPC is preserved. He argued that Section 36C, which states that the Special Court is deemed to be a Court of Session, indicates that the Special Court is not a Court of Session for all purposes

Mr. Singh argued that unless these provisions are expressly incorporated under the NDPS Act, 1985, the Special Court does not have the power under Section 438 of the CrPC to grant pre-arrest bail.

The State relies on the specific provisions of the CrPC applicable to the State of West Bengal, specifically Section 9(3) and its proviso, to argue that an Additional Sessions Judge exercising jurisdiction in a sub-division does not have the power to grant anticipatory bail. Therefore, the State contends that the Special Court under the NDPS Act, 1985, which is deemed to be a Court of Sessions, should also not have the power to grant anticipatory bail.

The State emphasizes that anticipatory bail is an extraordinary privilege granted only in exceptional circumstances, and the power to grant it is conferred only on a Court of Session or the High Court. The State argues that the grant of anticipatory bail is not an essential ingredient of Article 21 of the Constitution, and the non-application of anticipatory bail to certain special categories of offenses does not violate Article 21.

The State argues that the Special Court under the NDPS Act, 1985 is not a Criminal Court as defined in the CrPC. The State relies on a Supreme Court case to support this argument and contends that the powers conferred by Section 438 of the CrPC were not incorporated into Section 36C of the NDPS Act. Therefore, the Special Court does not have the power to grant anticipatory bail under Section 438.

The State contends that the legislator’s intention should be respected, and the mention of provisions related to bails and bonds in Section 36C of the NDPS Act does not automatically confer the power of anticipatory bail on the Special Court. The State argues that the provisions of Section 36C should not be interpreted in a way that renders any portion of it meaningless or redundant.

The State distinguishes the case of Pijush Kanti Dey (Supra) and argues that it is not applicable to the present reference because there is no provision analogous to Section 12AA(1)(d) of the Essential Commodities Act, 1955 in the NDPS Act, 1985. The State also asserts that the NDPS Act cannot be considered a self-contained code like the Essential Commodities Act. Additionally, the State argues that the invocation of Section 5 of the CrPC in Pijush Kanti Dey (Supra) was misplaced and relies on another Supreme Court case to support the contention that specific provisions of a statute prevail during trial, but the rest of the provisions of the CrPC can still apply to proceedings before a Special Court under the NDPS Act.

Finally, the State argues that the Court should answer the reference while considering the limitations provided under Section 37(1)(b) of the NDPS Act, 1985.

Contentions of the Amicus Curiae:

the Amicus Curiae firmly believed that both a Court of Session and a Special Court established under the NDPS Act, 1985, as well as a Court of Original Jurisdiction, retained the jurisdiction and authority to consider applications for anticipatory bail. They argued that the right to seek relief against apprehended arrest is a fundamental right derived from Article 21 of the Constitution of India, and any interpretation of the law should be made in the context of preserving personal liberty. 

The Amicus Curiae contended that unless there is a specific restriction or bar imposed by a special law, an interpretation of the law that infringes upon a person’s civil rights or individual freedom should be avoided. They asserted that there is no such restriction in the NDPS Act, 1985. 

Therefore, they argued that a Special Court constituted under the NDPS Act, 1985 should have the authority to receive and consider applications under Section 438 of the Code of Criminal Procedure, 1973. They suggested that the disposal of such petitions would be governed by Section 37 of the NDPS Act, 1985.

They cited the State of Rajasthan v. Noor Mohammad case to explain the meaning of “save as otherwise provided in the Act” when used in a statute. They also referred to the State of Tamil Nadu v. V. Krishnaswamy Naidu & Anr. case, which upheld the applicability of the Code of Criminal Procedure, 1973 to proceedings under the NDPS Act, 1985. To strengthen their argument, the Amicus Curiae pointed out the powers of a Special Court established under the Special Courts (Trial of Offences relating to Transactions in Securities) Act, 1992. They referred to the Harshad S Mehta & Ors. v. State of Maharashtra case, which held that a Special Court under that Act retained the power to grant pardon. They used this example to support the contention that a Special Court constituted under the NDPS Act, 1985 should also have the power to grant anticipatory bail. Lastly, they relied on the Bhinka & Ors. v. Charan Singh case to illustrate how a heading prefixed to a section should be read. This reference aimed to emphasize the importance of considering the heading in the interpretation of statutory provisions.

The Amicus Curiae referred to several decisions of different High Courts that interpreted Section 12AA, Section 12AC of the Essential Commodities Act, 1981, and Section 438 of the Code of Criminal Procedure, 1973. 

These decisions included: 

S. Murugeshappa & Ors. v. State of Karnataka (1984) 

Karamchand & Anr. v. The State of Madhya Pradesh (1985) 

Pijush Kanti Dey v. State (1985) 

Suresh Chand & Ors. v. State of Rajasthan (1985) 

B. Kuppa Naidu v. The State of Andhra Pradesh (1986) 

They also relied on decisions from different High Courts that considered similar provisions of different statutes in relation to Section 438 of the Code of Criminal Procedure, 1973. 

These decisions included: 

State of Punjab v. Piara Singh (1985) 

Sri Ravi Nandan Sahay, Sessions Judge Patna (1993) 

Fakhruddin Sharafali Ampanwala v. State (1998) 

C. Abdul Hameed v. State of Karnataka (1999) 

State of Bihar v. Braj Nandan Raut (2001) 

Additionally, the Amicus Curiae cited three authorities from different High Courts that interpreted various sections of the NDPS Act, 1985. These authorities were Ved Prakash Goel v. Commissioner, Central Bureau of Narcotics (2001), Rakesh Kukar alias Kukka v. State of Himachal Pradesh (2003), and Baljit Singh v. State of Assam (2004). These decisions were presented to support the Amicus Curiae’s arguments on the interpretation of the relevant provisions and their applicability in the context of the NDPS Act, 1985.

In light of these arguments, the Amicus Curiae urged the court to answer the reference by affirming that a Special Court constituted under the NDPS Act, 1985 has the jurisdiction to entertain and decide petitions for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973.

Judgement:

The judgment states that a Special Court constituted under Section 36 of the NDPS Act, 1985 is competent to entertain a pre-arrest bail petition under Section 438 of the Code of Criminal Procedure, 1973. This means that individuals accused or suspected of committing offences under the NDPS Act can approach a Special Court for anticipatory bail, providing them with a remedy to secure their personal liberty before arrest.

Key points from the view of the judges which constituted the judgment are as follows: 

The NDPS Act, 1985 was enacted to address deficiencies in existing laws regarding narcotic drugs and psychotropic substances. The Act established Special Courts to ensure speedy trial of offences under the Act. 

A Special Court under the NDPS Act is not necessarily a Court of first production, as specified in Section 36A. 

Section 36A of the NDPS Act identifies offences triable by Special Courts and provides for the forwarding of accused persons. The provisions of Section 36A of the NDPS Act prevail over the provisions of the Code of Criminal Procedure, 1973 in case of conflict. 

Section 36A allows the Special Court to exercise powers similar to those of a Magistrate under Section 167 of the Code of Criminal Procedure. 

The Special Court can take cognizance of an offence without the accused being committed to it for trial. 

The High Court retains its special powers regarding bail under Section 438 of the Code of Criminal Procedure in relation to the NDPS Act. 

Section 36B of the NDPS Act allows the High Court to exercise powers conferred by the Code of Criminal Procedure in relation to the Special Court. 

Section 36C of the NDPS Act provides for the application of the Code of Criminal Procedure to proceedings before a Special Court, subject to exceptions provided in the Act. The interpretation of the opening words of Section 36C, “save as otherwise provided in this Act,” is a crucial point of contention.

Conclusion:

The case discusses the interpretation of Section 36C of the NDPS Act, 1985 and its relation to the provisions of the Code of Criminal Procedure, 1973. The petitioners argued that the provisions of Section 36C of the NDPS Act, 1985 should not be interpreted as an implied bar on the application of the Code of Criminal Procedure, 1973, and that the personal liberty guaranteed under Article 21 of the Constitution of India should be considered in the interpretation of the provisions. The state argues that the Special Court under the NDPS Act does not have the power to grant anticipatory bail, while the Amicus Curiae argues that the Special Court does have such jurisdiction. The Amicus Curiae relies on various provisions, case laws, and the objectives of the NDPS Act to support their argument. In the final judgment, the Court agrees with the Amicus Curiae and concludes that a Special Court under the NDPS Act can entertain pre-arrest bail petitions under Section 438 of the Code of Criminal Procedure.

Shobhita Shrivastava, a student of KES Shri Jayantilal H. Patel Law College, 4^th semester, an intern under Legal Vidhiya. 

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