Ashok Kumar alias Shoky vs State of Haryana

Dr. Sarojnei Saksena, J.

Petitioner''s learned counsel contends that in this case there is a total violation of the mandatory provisions of Sections 50 and 36A of the Narcotic Drugs & Psychotropic Substances Act (in short, the Act). For the violation of section 36A, relying on Jeet Singh v. State of Punjab, 1995(2) Recent C.R. 588 ; Rakesh Kumar v. State and others, 1994(1) C.L.R. 336; Bhupinder Singh v. State of Haryana, 1994(1) C.L.R. 590; and Babu Ram v. State of Haryana, 1994(1) C.L.R. 628, he contends that as in this case remand beyond 15 days is granted by the Judicial Magistrate, the detention of the petitioner is illegal and on this count also, he is entitled to be enlarged on bail.

Mrs. Madan submits that only on August 9, 1995 FSL report is received. Challan is ready and it will be filed within a week. She admits that all the remands were given by the Judicial Magistrate.

So far as Babu Ram''s and Jeet Singh''s cases are concerned, no doubt, in those cases bail was granted to the accused on the ground that the legal point about the violation of section 36A is referred to a larger Bench though in Bhupinder Singh''s case bail was granted on the ground that remand beyond 15 days was granted by the Judicial Magistrate, but it is evident that in all these cases it was not pointed out before the High Court that in Punjab and Haryana special Courts are not yet constituted under Section 36 of the Act. Under Section 36A of the Act, remand can be granted to an accused under the provisions of the NDPS Act only by the Judicial Magistrate for 15 days or by the Executive Magistrate for 7 days and thereafter the remand is to be granted by the special Judge appointed under the Act. Since special Judges are not appointed in the State of Haryana the only authority who has jurisdiction to grant remand of such accused is the Magistrate. Under Section 36D of the Act the Sessions Judge is empowered to hold the trial, but the power to grant remand during investigation is not given to the Sessions Judge. Hence, if the remand is granted by the Judicial Magistrate, on this count, in my considered view, the petitioner is not entitled to be enlarged on bail.

So far as Rakesh Kumar''s case is concerned, that is a judgment of Delhi High Court. In Delhi special Courts are constituted under section 36 of the Act. Therefore, that judgment is also distinguishable.

So far as the compliance of provisions of section 50 of the Act is concerned, in the case diary it is mentioned that an option was given to the petitioner whether he wants that this personal search be taken either before a Magistrate before or a Gazetted Officer. Mrs. Madan read over that part of the case diary wherein this option is recorded. His reply is also recorded. The accused submitted that he is an illiterate person and wherever the Police wants to take him, he is willing to go. Considering this aspect of the matter, at the present moment it cannot be said that the provisions of section 50 are not adhered to in the strict sense of the term.

Petitioner''s learned counsel has not alleged anything as to how the petitioner is entitled to be enlarged on bail considering the provisions of section 37 of the Act.

Hence the petition is rejected. Bail is declined.