- (1.) THESE three Habeas Corpus Petitions raise a common question of law and, therefore, they were heard together and are being disposed of by a common order.
(2.) IN Habeas Corpus Petition No. 4963 of 1990, filed by Shri Alimuddin one Mohammed Rafiq son of Shri Shaft Mohammed resident of Kasaiyon-ki-kui, Nimbahera Paschhim, District Chittorgarh was arrested by the S. H. O. Police Station, Nimbahera and the Dy. S. P. of that circle, as 14 kgs. of opium was found in his possession. Although, it is alleged that the room which is situated in the field was always kept open but the allegation of the police is that this room was locked and its lock was opened by Shri Mohammed Rafiq himself. He was arrested on 16. 10. 1990 and was produced before the learned Munsif & Judicial Magistrate, Nimbahera, who remanded him to police custody upto 25. 10. 90. He was again produced before the learned Munsif & Judicial Magistrate, Chittorgarh who remanded him to Judicial cus-tody on 26. 10. 1990 and thereafter, he was further remanded to judicial custody on 8. 11. 1990, 19. 11. 1990, 26. 11. 1990 and 12. 12. 1990. A challan was filed and cognizance was taken against him by the learned Judicial Magistrate, Chittorgarh for the offence under sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act' herein ). In Hebeas Corpus Petition No. 5007 of 1990, filed by petitioner Saleh Mohammed, it is alleged that his father Guman Khan was found in possession of 5 kilo and 980 grams of Charas near the Bus Stand, Pali on 10. 9. 1990. He and his father both were arrested and a case under sec. 21 and 22 of the Act was registered against them. On 11. 9. 1990 they were produced before the Chief Judicial Magistrate, in which it is alleged that the petitioner Saleh Mohammed gave information for the recovery of 5 bags of Charas from his house. Thereafter, the petitioner and his father were remanded to police custody on 11. 9. 1990 and 17. 9. 1990 and were further remanded to Judicial custody on 1. 10. 1990, 15. 10. 1990, 29. 10. 1990 and 12. 11. 1990. It is alleged that still they are in judicial custody. In Habeas Corpus Petition No. 5051 of 1990, filed by petitioner Sanjay Kumar, it is alleged that the petitioner was found in possession of 1 kilo and 285 grams of Heroine on 19-9-90 and therefore, he was arrested and was produced before the Chief Judicial Magistrate, Pali on 20. 9. 1990, who remanded him to police custody on 26. 10. 1990. , Thereafter he was remanded to Judicial custody on1. 10. 1990, 15. 10. 90, 20. 10. 90 and 12. 11. 90. A case under s. 8/21 and 22 of the Act was registered against him. He is still in judicial custody. Learned counsel appearing for the petitioners have submitted that S. 36-A of the Act has bean added to the by Act No. 2 of 1989 with effect from 29. 5. 1989 and accrding to this section, the Judicial Magistrate has power to remand the accused to police and judicial custody for a period not exceeding fifteen days in the whole. According to them a remand beyond that period cannot be granted by a Judicial Magistrate and, therefore, the custody of these accused-persons is illegal and they deserve to be set at liberty. It was argued that the Act is a complete Cods in itself and therefore, this being a special Act, it overrides the provisions of s. 167 Cr. P. C. and so, the Judicial Magistrate has no power to remand the accused-persons to police custody exceeding the period beyond fifteen days. The only option left to the Judicial Magistrate is to forward the accused-persons to the special Court having jurisdiction to try the case and if the investigation is not completed and the Police wants further time for investigation beyond fifteen days of his custody, that can only be ordered by the Special Judge. In the petitions filed by the petitioners Saleh Mohammad and Sanjay Kumar, one more point was raised that the accused persons have been arrested by the persons below the rank of S. H. O. and, therefore, their custody is illegal. However, that contention was abandoned by Mr. Moinudeen, the learned counsel appearing for the petitioners. He has submitted that these cases may be decided on the ground that the detention of those accused persons beyond the period of fifteen days under the orders of the learned Munsif & Judicial Magistrate, Nimbahera and the Chief Judicial Magistrate, Pali is illegal and therefore, these accused-persons should be set at liberty. In the petitions that have been filed by Saleh Mohammed and Sanjay Kumar, notices have not been issued to the State of Rajasthan but when the contention as regards the illegal arrest of the accused-persons by an unauthorised Officer was abandoned Mr. K. L. Jasmatiya, the learned Govt. Advocate has accepted the notices on behalf of the State of Rajasthan. Hence, all these three habeas corpus petitions were argued on merit on 10. 12. 1990.
(3.) MR. M. M. Singhvi and MR. Moinudeen, the learned counsel appearing for the petitioners have reiterated their contention that s. 36-A of the Act, which was introduced by Act No. 2 of 1989 with effect from 29. 5. 1989 is a complete Code by itself regarding trial of the offences under this Act and the provisions of this section override the powers given be a Judicial Magistrate for remand of accused-persons under s. 167 Cr. P. C. According to them, this being a special Act, will override the provisions of the General Act and hence, the accused persons deserve to be set at liberty. Mr. K. L. Jasmatiya, the learned Government Advocate appearing for the State has submitted that clause (b) of sub-section (1) of s. 36-A of the Act only relates to the police custody. According to him, a Magistrate has power to remand the accused to police custody for a period not exceeding fifteen days but it does not affect his power to send the accused to Judicial custody beyond the period of fifteen days. He has further submitted that this section only supplements the provisions of s. 167 Cr. P. C. It was argued by him that although s. 36-A of the Act starts with the words 'notwithstanding anything contained in the Code of Criminal Procedure, 1973, but that only means that if the provisions of this particular section are in any way contradictory to the provisions of the Code of Criminal Procedure then those provisions will carry weight and to that extent, the provisions of the Code of Criminal Procedure will not be applicable but it does not mean that where this particular section is silent, the powers will not be exercised by a Magistrate under s. 167 Cr. P. C. According to him, the accused-persons have been arrested for committing very serious offences pertaining to the Narcotic Drugs and Psychotropic Substances and, therefore, they do not deserve any liberty. We have given our most anxious considerations to the rival submissions made at the bar. ;