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Judgment
A. P. Lavande, J.—Heard Mr. D''Souza, learned Counsel for the applicants and Mr. Ferreira, learned Public Prosecutor for the respondents. Both these applications are being disposed of by common order since the facts and the question of law involved are identical.
The applicant in Criminal Application (Bail) No.71/2011 was arrested by the Police Officer of Anti Narcotic Cell on 27th January, 2011 at about 4.00 p.m. for the offences punishable under Sections 20(b)(ii)(C), 21(B) and 22(C) of the N.D.P.S., Act, 1985 (''The Act'' for short) for alleged possession of 3.340 Kgs of Charas, 450 Gram of Heroine and 6.7 Grams L.S.D.
The applicant in Criminal Application (Bail) No.72/2011 who is wife of the applicant in Criminal Application (Bail) No.72/2011 was also arrested under the very same Sections of The Act. Both of them were produced before the Judicial Magistrate, First Class on 28th January, 2011 who remanded them to 7 days police custody with a direction to be produced before the N.D.P.S. Court.
On 4th February, 2011, both the applicants were produced before Judge Shri P.V. Sawaikar, who remanded them to 7 days police custody. Thereafter, both the applicants were remanded from time to time by Judge Shri Sawaikar, who was functioning as District Judge-II at Panaji. Both the applicants filed bail applications before Judge Shri Sawaikar mainly on the ground that the Magistrate had no jurisdiction u/s 36(A)(b)(i) of The Act to give further directions to produce the applicants before the N.D.P.S. Court. Judge Shri Sawaikar rejected both the applications along with the other two applications by common order dated 25th February, 2011.
The applicants filed the bail applications in this Court on 16th March, 2011 which were adjourned from time to time at the request of either learned Counsel for the applicants or the learned Public Prosecutor. Thereafter, the leaned Counsel for the applicants sought amendment of the bail applications which was allowed by order dated 5th May, 2011. Pursuant to the said order, the applicants carried out amendment.
By the said amendment, the applicants have contended that since the Principal District Judge Miss Nutan Sardessai was appointed Special Judge for N.D.P.S. Court vide order dated 28th January, 2011 with immediate effect the Judge Shri Sawaikar had no jurisdiction and authority to remand the applicants to custody and as such, the detention of the applicants is illegal and on this ground alone, the applicants are entitled to be released on bail.
As stated above, the applicants were remanded from time to time initially and during the pendency of these applications on 24th June, 2011, the applicants were produced before Miss Nutan Sardessai, Special Judge, who granted remand of 14 days judicial custody.
Indisputably, consequent to 1989 amendment to The Act, the Government of Goa by notification had created Special Court at Mapusa u/s 36 of The Act which started functioning by appointment of the Judge in the year 1992 and thereafter, the said post was filled in by different Special Judges till Smt. Bimba Thali was appointed on 10th July, 2009. On 26th October, 2010 Smt. Thali, who was functioning as District Judge-I and Additional Sessions Judge, Mapusa, was appointed as the Registrar (Judicial) of this Court. On 28th October, 2010, Judge Shri Sawaikar, who was District Judge-I and Additional Sessions Judge, Panaji was appointed to act as Special Judge with all the powers under The Act to try the cases under The Act during the absence of Smt. Bimba Thali. On 28th January, 2011, Judge Bimba Thali was posted as Sessions Judge, South Goa at Margao and simultaneously by order of the same date, Government of Goa was pleased to appoint Miss Nutan Sardessai, Principal District and Sessions Judge, Panaji as N.D.P.S. Judge.
In the backdrop of the above facts, it is the contention of Mr. D''Souza, learned Counsel for the applicants that since in terms of Section 36(2) of The Act only a single Judge can function as the Special Court, after the appointment of Miss Nutan Sardessai as Special Judge by order dated 28th January, 2011, Judge Shri P. V. Sawaikar could not have exercised the powers under The Act as Special Judge and, therefore, the remands of the applicants to police custody by order dated 4th February, 2011 are patently illegal and consequently, the detention of the applicants from 4th February, 2011 is illegal. According to the learned Counsel, the remand by Judge Shri P. V. Sawaikar on 4th February, 2011 and even subsequent remand was Coram Non Judice being granted by a Judge, who is not appointed as Special Judge. Consequently, all the remands were illegal and void-ab-initio. Therefore, the detention of the applicants from 4th February, 2011 till the filing of the bail applications being illegal, they are entitled to be released on bail.
According to the learned Counsel, the detention of the applicants from 4th February, 2011 till the filing of the present applications was patently illegal and the same could not have been cured by remand granted by Special Judge Miss Nutan Sardessai by order dated 24th June, 2011.
In support of his submissions Mr. D''Souza relied upon the following judgments :
(i) Suryakant Ramdas More Vs. State of Maharashtra; CDJ 1989 BHC 207.
(ii) Joauqim M. Correia Vs. State of Goa; unreported judgment dated 18.7.2008 of the learned Single Judge of this Court in CRMA No.88/98.
(iii) Nazir Ahmad Vs. King Emperor; CDJ 1936 P 042.
(iv) Lamin Bojang Vs. State of Maharashtra; CDJ 1996 BHC 207.
(v) Supreme Court Legal Aid Committee Vs. Union of India; CDJ 1994 SC 114.
(vi) Dilip Pandurang Kamath and Others Vs. State of Maharashtra; CDJ 2006 BHC 117.
(vii) M.D.Bhoruka Textiles Limited Vs. M/s. Kashmiri Rice Industries; CDJ 2009 SC 1106.
(viii) Pandurang and Ors Vs. State of Maharashtra; CDJ 1986 SC 353.
(ix) Raja Soap Factory and others Vs. S. P. Shantharaj and others; CDJ 1965 SC 007
(x) State of Tamil Nadu Vs. Paramasiva Pandian; CDJ 2001 SC 2885.
(xi) Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, .
(xii) A.R. Antulay Vs. R.S. Nayak and Another, .
Per contra, Mr. Ferreira, learned Public Prosecutor submitted that even if it is assumed that Judge Shri Sawaikar as Special Judge on 4th February, 2011 had no jurisdiction to grant remand of the applicants, yet this fact by itself is not sufficient to grant bail to the applicants in as much as during the pendency of the bail applications by order dated 24th June, 2011, Special Judge Miss N. Sardessai, who has been duly appointed vide notification dated 28th January, 2011, has remanded the applicants to judicial custody and as such, the alleged illegal detention of the applicants would not entitle the applicants to be released on bail. According to learned Public Prosecutor since as on the date the applicants have been remanded by the Special Judge having jurisdiction, the question of granting bail on the ground of alleged illegal detention prior to the order of remand dated 24th June, 2011 does not arise.
In support of his submissions, Mr. Ferreira, relied upon the following judgments :
(i) Kana Vs. State; 1980 Cr L.J. 344.
(ii) Durei Behera Vs. Suratha Behera; 1987 Cr.LJ 1462
(iii) Nand Ram Vs. State; 1988 Cr. L J 72.
(iv) Daji Govind Kamble Vs. State of Maharashtra, .
(v) Sunil Singh Vs. State of Bihar; 2001 Cr.L.J. 3681.
(vi) Antonio Kaminis Vs. UOI; order passed in CRMAB No.301/2009 dated 16th October, 2009 by the learned Single Judge of this Court.
(vii) Sandeep Parab Vs. State of Goa; Order passed in CRMAB Nos.67, 68 and 75 of 2010 dated 7th April, 2010 by the learned Single Judge of this Court.
In rejoinder, Mr. D''Souza, learned Counsel for the applicants submitted that the learned Single Judge of this Court while passing the orders in the cases of Kaminis and Sandeep Parab (supra) relied upon by Mr. Ferreira, has ignored the provisions of The Act as well as the earlier judgments and orders in the cases of Suryakant More and Joaquim Correia and as such, the said orders cannot be treated as precedents. According to the learned Counsel, the view taken by the learned Single Judge in both the cases runs counter to the view taken by the Single Judges in the cases of Suryakant More and Joaquim Correia (supra). Therefore, no reliance can be placed upon both the orders. According to learned Counsel, the view taken by the learned Single Judges of this Court in the cases of Suryakant More and Joaquim Correia (supra) is the correct view and the learned Judge has misconstrued the ratio of these two judgments while passing the orders in the cases of Kaminis and Sandeep Parab (supra). The learned Counsel further submitted that the learned Single Judge in the case of Ashish Shirodkar Vs State of Goa and another by order dated 2nd June, 2010 passed in CRMAB No.106/2010 has granted bail to the applicants after considering the nature of the evidence available against the applicants without reference to Section 37 of The Act. According to learned Counsel, in view of the said order passed in the case of Ashish Shirodkar, the orders in the cases of Kaminis and Sandeep Parab (supra) cannot be treated as precedents.
Mr. Ferreira, learned Public Prosecutor further submitted that the orders passed in the cases of Suryakant More and Joaquim Correia (supra) do not advance the case of the applicants. Mr. Ferreira further submitted that the learned Single Judge while passing orders in Antonio Kaminis and Sandeep Parab (supra) has referred to the orders passed in the cases of Suryakant More and Joaquim Correia (supra). Therefore, by no stretch of imagination, it can be said that the orders passed in the cases of Antonio Kaminis and Sandeep Parab (supra) are per incuriam. Mr. Ferreira placed reliance upon the following judgments to substantiate
(i) Subhash Chandra and Another Vs. Delhi Subordinate Services Selection Board and Others, .
(ii) V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Another, .
(iii) Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, .
Mr. D''Souza, learned Counsel appearing for the applicants submitted that there can be no dispute with the proposition laid down by the Apex Court in the judgments referred to by Mr. Ferreira. However, even applying the tests laid down in the said judgments, it is evident that the orders passed by the learned Single Judges in the cases of Suryakant More and Joaquim Correia (supra) have been rendered by ignoring the important provisions of The Act, the earlier judgment and order and, therefore, the contentions of the applicants that both these orders are per incuriam deserves to be accepted.
I have carefully considered the rival submissions, perused the record and the judgments relied upon.
The moot question which arises for consideration is whether in view of the remand of the applicants by Judge Shri Sawaikar by orders dated 4th February, 2011 the further detention of the applicants is illegal and whether the applicants are entitled to be released on bail on this ground notwithstanding the orders of remand passed by the Special Judge Miss N. Sardessai on 24th June, 2011 during pendency of these bail applications.
In order to appreciate the rival contentions, it would be appropriate to refer to the facts in the cases of Suryakant More and Joaquim Correia (supra) relied upon by Mr. D''Souza, learned Counsel for the applicants and the order passed by the learned Single Judges of this Court in the cases of Daji Govind Kamble, Kaminis and Sandeep Parab (supra) since in all these matters, the bail applications were filed by the persons accused of the offences under The Act.
In the case of Suryakant More (supra), the learned Single Judge of this Court granted bail to an accused arrested under the provisions of The Act holding that the Metropolitan Magistrate could not have authorised detention as to when the judgment can be said to be per incuriam : for a period exceeding 15 days and ought to have considered his application for bail filed on 12th July, 1989. The Learned Judge held that as on the date of filing of the bail application, the detention of the applicants was unauthorised and as such, unauthorised detention of the applicants entitled them to be released on bail. Learned Judge ordered the applicants to be released on bail.
In the case of Joaquim Correia (supra), the learned Single Judge of this Court granted bail to the applicant who was arrested for the offences punishable under Sections 20(b)(ii) and 22 of The Act. The applicant was produced before the Judge Shri Kenkare, who was not appointed as Special Judge and as such, could not take cognizance of the offences alleged against him. After placing reliance upon the judgment of this Court in the case of Suryakant More and the provisions of Section 36 of The Act, the learned Judge held that under the Act when the Special Court is constituted, it is only the Special Judge who can exercise the powers of remand u/s 167 of Cr.P.C. and alone can take cognizance of the offences under the provisions of The Act. Learned Judge held that the detention of the applicant from 12th June, 1998 onwards was unauthorised on two grounds namely that no cognizance was taken on the basis of the chargesheet filed on 12th June, 1998 and secondly on the ground that Shri Kenkare, who was not appointed as Special Judge at the relevant time, had no authority to remand the accused. Learned Judge granted bail to the applicant on certain terms and conditions.
In the case of Daji Kamble (supra) relied upon by the learned Public Prosecutor, the petitioner was arrested on 24th June, 1989 u/s 8(C) of The Act. He was produced from time to time before the Metropolitan Magistrate, who authorised his detention. He was produced before the Additional Sessions Judge on 25th July, 1989. The petitioner filed the bail application on 25th August, 1989. The main ground on which the bail was sought was that the Metropolitan Magistrate was not entitled to pass order of detention of the petitioner exceeding 15 days in contravention of Section 36A(i)(b) of The Act and as such, his detention beyond 15 days by the Metropolitan Magistrate was unauthorised and illegal and the order of remand passed by the Additional Sessions Judge on 25th July, 1989 could not cure the unauthorised detention under the orders of the Magistrate and would not give validity for further detention and as such, the petitioner was entitled to claim bail as of right. Learned Judge after considering the provisions of The Act and Section 167 of Cr.P.C., held that although the Magistrate had exceeded his authority in permitting the detention beyond the period of 15 days, the detention authorised by the Special Court or the Court of Sessions could not be vitiated when it is apparent that at the time of authorising the detention the Special Court was invested with the powers. The earlier unauthorised detention could not be invoked for the purpose of urging that what was authorised would also become invalid because of some previous irregularities of the Magistrate. With this finding, the learned Judge dismissed the application for bail.
In the case of Antonio Kaminis (supra), the applicant claimed bail on the ground that his remand on 6th July, 2009 by Judge Shri Deshpande was illegal and without jurisdiction. The learned Judge placed reliance upon the notification dated 10th July, 2009 by which Smt. Bimba K. Thali, District Judge-I and Additional Sessions Judge was appointed as Special Judge and in her absence Shri B. P. Deshpande, District Judge-I and Additional Sessions Judge was to act as Special Judge with all powers under The Act. Learned Judge after considering the various authorities relied upon on behalf of the applicants including the cases of Suryakant More and Joaquim Correia (supra) held that if on the date of filing of the application or even on the date of decision, the petitioner''s detention was in order, the previous infirmities or improper remand would not matter and on account of those infirmities, the accused are not entitled for bail. Learned Judge further held that the applicants in the case could not get bail beyond the provisions of The Act. In other words, the accused would not be entitled to bail unless the accused are brought under the provisions of 36A or Section 37 of The Act. Learned Judge further held that the rigors of Section 37 of The Act were not brought to the notice of this Court while deciding the case of the Suryakant More as well as Joaquim Correia (supra). The learned Judge placed reliance upon the Full Bench decision of the Rajasthan High Court in the case of Mahesh Chand Vs. State of Rajasthan; 1985 Cri. L. J. 301 and held that the accused is not entitled to claim that his detention was illegal and as such, is entitled to be released on bail on the ground that any act of omission or commission was committed by the Magistrate under the provisions of Criminal Procedure Code. The Rajasthan High Court held that the bail is not remedy for illegal detention. The reference was also made to the judgment of Delhi High Court in the case of Nand Ram Vs. State (supra).
In the case of Sandeep Parab and others (supra) relied upon by the learned Public Prosecutor, the applicants were arrested under the provisions of N.D.P.S. Act as well as prevention of Corruption Act and Indian Penal Code. The applicants were initially produced for remand before the Special Judge under prevention of Corruption Act, but thereafter on 31st March, 2010 and 1st April, 2010, the applicants were remanded to custody by N.D.P.S. Court. Learned Judge after placing reliance upon the judgment in the case of Kana Vs. State; 1980 Cri. L.J. 344 and also the order in the case of Antonio Kaminis(supra), held that since the applicants were remanded by N.D.P.S. Court, the Court having jurisdiction on 31st March, 2010 and 1st April, 2010, they were not entitled to bail on the ground that the earlier remand granted by the Special Judge under Prevention of Corruption Act was illegal. Learned Judge held that since the applicants were remanded by a Court of competent jurisdiction and remand being valid and legal, the applicants were not entitled to bail and the accused under The Act can be granted bail if the case is covered under subsection (4) of Section 36A or Section 37 of The Act.
In the case of Durei Behera (supra) the Division Bench of Orissa High Court held that the earlier illegal detention is no ground for grant of bail. It was held that the earlier unauthorised or illegal detention of the accused does not invalidate his subsequent valid detention. It was further held that if there was infringement of the provisions contained in Section 167(2), 209 and 309 of Cr.P.C., the accused may make an application for habeas corpus or pursue remedies as are available to him under the law. But he could not seek bail on the mere ground that on earlier some point of time, his detention was unauthorised. Bail implies release from valid custody of the Court and to entrust him to the custody of sureties.
What emerges from the authorities cited above is that in the case of Suryakant More (supra) the learned Single Judge of this Court granted bail to the accused arrested under the provision of The Act on the ground that their detention pursuant to orders passed by the Magistrate was illegal. However, in the case of Daji Kamble (supra), the learned Single Judge of this Court held that although the Magistrate had exceeded his jurisdiction in permitting the detention of the accused arrested under The Act, his further detention authorised by the Special Court or the Sessions Court, could not be vitiated when it is apparent that at the time of authorising the detention, the Special Court was invested with the powers under The Act and the earlier unauthorised detention could not be invoked for the purpose of urging that what was authorised would also become invalid because of previous irregularities of the Magistrate.
In the case of Sandeep Parab and others (supra) relied upon by the learned Public Prosecutor, initially, the accused were remanded by the Special Judge appointed under the Prevention of Corruption Act, but thereafter they were remanded to custody by the Special Court under The Act. Learned Judge, after placing reliance upon the judgment in the case of Kana Vs. State (supra) and the earlier order passed in the case of Antonio Kaminis, held that the applicants were not entitled to bail on the ground that the earlier remand granted by the Judge appointed under The Prevention of Corruption Act was illegal. Learned Judge held that since the applicants were remanded by a Court of competent jurisdiction and the remand being valid and legal, the applicants were not entitled to bail and the accused under The Act can be granted bail if the case is covered under subsection (4) of Section 36A or Section 37 of The Act.
In the case of Antonio Kaminis (supra), the learned Single Judge, after holding that the accused was remanded by the Special Judge appointed under The Act, held that even if the earlier remand is granted by a Judge having no jurisdiction, the same would not entitle an accused under The Act to get bail if the accused is thereafter remanded by the Judge having jurisdiction under The Act.
I am unable to accept the submission made by Mr. D''Souza, learned Counsel for the applicants that the orders passed by the learned Single Judge in the cases of Antonio Kaminis and Sandeep Parab (supra) are per incuriam since the learned Judge has referred to the judgment in the case of Suryakant More as well as the order in the case of Joaquim Correia (supra) and after considering the same, has held that the earlier order of remand passed by the Judge having no jurisdiction under The Act would not entitle the accused to get bail in case his detention on the date of passing of the order is legal.
It is, therefore, clear that there is apparent conflict between the view taken by the learned Single Judge in the case of Suryakant More and Daji Kamble and Sandeep Parab (supra). All these orders were rendered by the learned Single Judges of this Court. Moreover, in the case of Kana Vs. State (supra), the learned Single Judge of Rajasthan High Court and the Division Bench of Orissa High Court in the case of Durei Behera (supra) have held that the accused is not entitled to be released on bail on the ground that at some interior date the detention of the accused was illegal in case the detention is illegal at the time of bail application is filed or it comes up for consideration. It has been further held that if the detention of the accused is illegal and the bail application is preferred, his previous illegal detention should not be considered.
In the present cases, Shri P. V. Sawaikar, not being the Special Judge, had no jurisdiction to grant any remand to the applicants from 4th February, 2011 till 24th June, 2011. However, by order dated 24th June, 2011, Miss Nutan Sardessai, who has been appointed as Special Judge had granted remand to the applicants.
In the present cases, the applications were filed on 16th March, 2011 and the matters were adjourned from time to time at the request of the learned Counsel for the applicants and the learned Public Prosecutor. The applicants sought amendment of the application which was allowed by order dated 5th May, 2011 and it is only during the pendency of the applications that the Special Judge granted remand to the accused on 24th June, 2011 for the first time and thereafter, from time to time.
In view of the above factual matrix and in view of the divergent views taken by the learned Single Judges of this Court to which reference is made hereinabove, I am of the considered opinion that the following question arises in the present matters which can be advantageously heard by a Bench of two Judges.
Whether an accused under The Narcotic Drugs and Psychotropic Substances Act, 1985 who is remanded by a Judge who is not appointed as Special Judge and who has been subsequently remanded to custody by a Special Judge, is entitled to be released on bail on the ground that his earlier detention was illegal
Registry to place the matters before the learned Chief Justice for passing appropriate orders.