- (1.) Since a common question of fact and law is involved in all the six Criminal Miscellaneous Petitions (Nos. 13842-M of 1994), 13386-M of 1994, 1350-M of 1994, 13516-M of 1994, 13551-M of 1994 and 13776-M of 1994). I propose to dispose of the said petitions by this judgment.
(2.) In a nutshell, in all these petitions, the contention of the learned counsel for the petitioners is that Section 36-A (1)(b) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) has been contravened as the learned Judicial Magistrate did not forward the custody of the petitioners on expiry of 15th day to the Special Court and consequent further detention of the petitioners in judicial custody was rendered illegal and unauthorised (like a case of illegal and unauthorised detention of the accused under Section 167(2)(a) of the Code of Criminal Procedure, 1973 (No. 2 of 1974) (hereinafter called the Code) on the ground of non-submitting a charge-sheet within the prescribed limit of 90 days. It was then submitted that Section 36-A (1)(b) of the NDPS Act not only expressly prohibits the detention of the accused in any manner whatsoever either in police custody or in judicial custody beyond a span of 15 days in the whole, but the same further specifically directs the learned Magistrate to forward the custody of the accused to the Special Court. Thus, placing reliance on Section 36-A (1)(b) of the NDPS Act, the learned counsel submits that by virtue of an express mandatory provision the accused cannot be kept even in judicial custody exceeding the prescribed statutory limit of 15 days, as after the expiry of the said period the petitioners accused were required to be forwarded to the Special Court and in the absence of it, to the Sessions Court as the case may be. Thus, any default in complying with the said provisions of Section 36-A(1)(b) of the NDPS Act being patently illegal, the petitioners were entitled to be released on bail forthwith. In order to substantiate the contentious, the learned counsel placed reliance on Criminal Miscellaneous No. 9322-M of 1993 in which a request has been made by a learned Judge of this Court (vide order, dated 17/08/1993) to the Hon'ble the Chief Justice, for the referring the matter to a larger Bench. The learned counsel asserted with one voice that the petitioners in all the aforementioned petitions are entitled to be set at liberty forthwith, in view of the Full Bench decision of the Kerala High Court in Berlin Joseph v. State, 1992 (II) Crimes, 353 (Ker) and a Division Bench decision of the Delhi High Court in Rakesh Kumar v. State, 1994 (1) CLR 336.
(3.) It may be stated here that the question for determination before the Full Bench of the Kerala High Court in Berlin Joseph's case (supra), was, as to whether the conditions in Section 37 of NDPS Act for granting bail have overriding effect on the proviso to Section 167 of the Code and the interpretation of Section 36-A (1)(b) of the NDPS Act was not an issue directly involved therein. While answering the above question, the learned Judge of the Kerala High Court had held that Section 37 of the NDPS Act does not override Section 167(2) of the Code and, thus, Section 167(2) of the Code would operate even for offences under NDPS Act.;