JASRAJ CHOPRA, J. - (1.) THIS habeas corpus petition has been filed by petitioners Chunnilal and Dalchand through one Madhs, who happens to be the brother -in -law looser of detenu Chunnilal and Dalchand, who were lodged in District Jail Chittorgarh in a case under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act').
(2.) IT is alleged that the petitioners were arrested on 18.4.1990 and their arrest has been shown to have occured on 20.4.1990. The FIR No. 116/90 was registered against them in Police Station, Kapasan. They were produced before the Magistrate on 21.4.1990 and thereafter, they have been remanded to custody on different dated i.e. 30.4.1990, 2.5.1990, 16.5.1990, 30.5.1990, 12.6.1990, 26.6.1990, 10.7.1990 and 24.7.1990. On 10.7.1990 a challan was filed against them in the Court of the learned Chief Judicial Magistrate, Chittorgarh and thereafter, the case was committed to the court of learned Addl. Sessions Judge, Chittorgarh, who remanded them to custody. It was, however, felt that the learned Addl. Sessions Judge does not have the powers of Sessions Judge and, therefore, the learned Addl. Sessions Judge, Chittorgarh sent the case back to the court of learned Chief Judicial Magistrate, Chittorgarh for commitment to the authorised court and thereafter, the case was committed to the court of learned Sessions Judge, Pratapgarh.
(3.) IT has been alleged that the Chief Judicial Magistrate has no power to remand the case for more than a period of 15 days. Even remand by the learned Addl. Sessions Judge, who does not happen to be the Sessions Judge, is also illegal. It was claimed that the provisions of Section 36A of the Act are mandatory in character and they do not envisage a commitment by the Court. The Special Judge who tries the case has powers to take direct cognizance and, therefore, on the basis of the principle of generalia specellous non derogant provisions of Section 36A of the Act will override the provisions of the Code of Criminal Procedure, 1973. Section 36A of the Act starts will non -obstante clause and, therefore, the detention of the petitioners is totally illegal and they deserve to be set at liberty. The provisions of Section 167(2) Cr.P.C. are subject to the provisions of Section 36A of the Act. It was, therefore, claimed that the case pending before the learned Addl. Sessions Judge Chittorgash arising out of FIR Case No. 116/90 of PS Kapasan may be quashed and the petitioners may be set at liberty. A return has been filed on behalf of the State and it has been claimed that detention of the petitioners is not at all illegal. They were arrested on 20.4.1990 for an offence under Section 8/18 of the Act and thereafter, they were remanded to the judicial custody by the learned Chief Judicial Magistrate, who has all powers to remand them beyond the period of 15 days. The provisions of Section 36A of the Act are not conteadictory to the provisions of Section 167(2) Cr.P.C. The learned Addl. Sessions Judge has all powers to hear the case but still, he thought it fit to remand the case back to the Chief Judicial Magistrate and, therefore, the case has been committed to the learned Sessions Judge, who has already framed charges against the petitioners and the case has been fixed for recording evidence and thus, their custody cannot be treated as illegal.;