S. N. Sahay, J. - (1.) THIS is a petition under Article 226 of the Constitution for issuing a writ of habeas corpus to secure the release of the petitioner, who is under detention in Case Crime No. 217 of 1992, under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 of P. S, Jaidpur, district Bara Banki.
(2.) THE case of the petitioner is that he was, arrested on 8-7-1992 by the police of P. S. Jaidpur, district Bara Banki in connection with the abovenoted case and since then he is in jail. After completion of investigation, the police filed a charge-sheet on 7-10-1992 before the learned Sessions Judge, Bara Banki who took cognizance of the offence on the same day. On 22-1-1993 the learned Sessions Judge transferred the case to the Court of 111 Additional Sessions Judge, Bara Banki and at present the trial is pending before that Court. It is alleged that after receiving the case by transfer the learned Additional Sessions Judge did not pass any remand order under Section 309 Cr PC, which undisputedly governs the remand of an accused during trial. According to the petitioner the proviso to Section 309 (2) requires that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time. THE petitioner has submitted that in view of the above provision a remand cannot be granted for the entire period of trial but has to be given on each day of hearing on adjournment of the case. THEre is no order or direc tion from 25-1-1993 remanding the petitioner to jail custody and hence the detention of the petitioner with effect from 25-1-1993 is absolutely illegal. THE petitioner has also alleged that his detention is illegal in view of the fact that the warrant of remand has not been issued in accordance with rules in the prescribed form. THE petitioner has accordingly urged that he is in illegal detention and is entitled to be released unconditionally. It may be mentioned that in the writ petition, it was also alleged that at the time of arrest the petitioner was not informed about the full parti culars of the offence as required under Section 50 Cr PC and Article 22 of the Constitution and that the provisions of Sections 50, 51, 52 and 57 of the abovementioned Act were not complied with and so his detention is illegal. But these grounds were not pressed at the time of hearing of the writ petition. It is stated in the counter-affidavit filed on behalf of respondent No. 2 that on the basis of the FIR lodged in the aforesaid case the petitioner was brought to District Jail, Bara Banki on 8-7-1992. After completion of investigation charge-sheet was filed against him before the Court of Session at Bara Banki. It is further stated that on 25-1-1993 the learned Sessions Judge while granting remand to the petitioner from 25-1-1993 to 3-2-1993 transferred that case to the Court of III Additionals Sessions Judge, Bara Banki. There is no Special Court in Bara Banki for conducting trial of cases under the NDPS Act and, hence, the learned Sessions Judge has full power to try the case him self or transfer it to any other competent Court. The court was received by transfer on 30-1-1993 in the Court of III Additional Sessions Judge, Bara banki and was directed to be put up on the date fixed, that is 3-2-1993. The remand under Section 309, Cr PC had already been granted by the learned Sessions Judge on 30-1-1993 and hence, further remand was not at all neces sary. On 3-2-1993 the learned III Additional Sessions Judge remanded the petitioner under Section 309, Cr PC till 18-2-1993. It is further stated in Para 9 that the trial Court had not granted remand for the entire period of trial but is granting remand and fixing dates for examination of the witnesses on each date of hearing and there is no illegality in it. It is asserted in Para 10 that the learned III Additional Sessions Judge remanded the petitioner on each and every date on which he was produced in the Court. On the basis of these averments, it has been contended on behalf of the respondents that the detention of the petitioner is not illegal and he is not entitled for a writ of habeas corpus.
(3.) WE have heard the learned Counsel for the parties at length, it may be observed at the outset that there is no force in the contention of the petitioner that the Sessions Judge has no jurisdiction to grant remand to an accused person under Section 309 (2) Crpc for a period exceeding 15 days at a time by reason of the first Proviso to that Section. The offences under the NDPS Act are normally, triable by the Special Courts constituted under Section 36 of the Act. But by virtue of the transitional provisions contained in Section 36-D of the said Act any offence committed under the Act or after the commence ment of the NDPS (Amendment) Act, 1988, until a Special Court is constitu ted under Section 36 shall notwithstanding anything contained in the Code of Criminal Procedure, be tried by a Court of Session. Thus, it is clear that a Sessions Judge while trying an offence under the said Act functions as a Court of Session and not as a Magistrate. Where it is intended that the power of the Magistrate shall be exercised by the Special Court under the Act, a clear provision has been made to that effect. The provisions of the first Proviso to Section 309 (2) are not attracted and, therefore, the Sessions Judge has juris diction to postpone or adjourn the trial at such terms as he thinks fit for such time as he considers reasonable and by a warrant to remand the accused if in custody as provided in the substantive provision therein. There is no dispute about the fact that Special Court has not been constituted in Bara Banki and so in the matter of remand under Section 309 (2; Crpc it is not correct to say that the learned Sessions Judge cannot remand an accused person to custody under this section for a term exceeding IS days at a time. The other contentions of the petitioner may now be dealt with. We find from a perusal of copy of the order-sheet, Annexure-1 and also from the record of S. T. No. 159 of 1992 that on 7-10-1992 charge- sheet was received. It was directed that the case be registered and copies of documents may be got prepared and made available to the accused and the accused Sharafat Ullah be summoned for 25-11- 1992 and till then he may be kept in judicial custody (Abhiyukt Sharafatullah dinank 25-11-1992 ko talab karke pesh kiya jaye. Tab tak nyayik abhiraksha main rahe.) On 25-11-1992 the accused was produced and the copies of documents were furnished to the accused. He did not file vakalatnama and prayed for time. It was ordered that the case may be put up on 18-12-1992 for framing of charge and till then the accused may be kept in judicial custody and he may also file vakalatnama on that date. On 18-12-1992 the accused was brought in custody but as the Presiding Officer was on leave, it was directed that the case be put up on 25-1-1993 for framing of charge and till then the accused be kept in judicial custody. On 25-1-1993 the accused was brought in custody and the case was transferred to the Court of III A. D. J. for disposal and the accused was directed to appear there on 3-2-1993. The case was received by transfer in the Court of III Additional District and Sessions Judge on 30-1-1993- The order was "register and put up on date fixed". The case was taken up on 3-2-1993. The accused was brought in custody. The Advocates were abstaining from work. The Presi ding Officer was on leave. Hence 18-2-1993 was fixed for framing of charge and the accused was directed to be summoned for the date fixed. After that the case was taken up on various dates between 18-2-1993 and 22 8-1994. The last entry in the order-sheet is dated 22-8-1994, which reads as follows : "abhiyukt zer hiraaat upasthit hai. Adhivaktagan hartal par hai. Aadesh dinak 19-4-1994 ko sakchhya avam 8-64 ke nistaran hetu pesh ho," In none of the orders recorded on the order-sheet between 18-2-1993 and 22-8-1994 there is any direction with regard to the remand of the accused although it is stated in some of the orders that the accused shall to produced on the date fixed.;