Mr. Felix Ohimain Evborokhai vs State of Goa and Public Prosecutor, High Court, Panaji, Goa

S.C. Dharmadhikari, J.—These criminal applications are placed before us in the light of the order dated 10th August, 2011, passed by the learned Single Judge of this Court Hon''ble Mr. Justice A.P. Lavande. Mr. Justice A.P. Lavande was of the opinion that the following question requires consideration by a Bench of Two Learned Judges of this Court :

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

The learned Judge framed the above question in the light of the divergence in the views taken by a learned Single Judge of this Court in the case of Suryakant Ramdas More vs. State of Maharashtra; CDJ 1989 BHC 207 and by another learned Single Judge of this Court in the case of Daji Govind Kamble Vs. State of Maharashtra, , so also in the case of Antonio Kaminis vs. Union of India, passed in CRMAB No.301/2009 dated 16th October, 2009; and in the case of Sandeep Parab vs. State of Goa, passed in CRMAB Nos. 67, 68 and 75 of 2010 dated 7th April, 2010. This is how this reference has been placed before us. The facts in Criminal Application (Bail) No.71/2011 are sufficient to appreciate the submissions of the learned Counsel. They may be stated now :

The applicant, along with Ms. Lalliansangi, were arrested by the respondent on the allegations of being in possession of 3.340 kgs. of charas and another contraband recovered from a lady, for which FIR No. 14/2011 dated 27.1.2011 has been registered at the ANC Police Station, Panaji Goa, alleging offences punishable under Sections 20(b)(ii)(C), 21(B) and 22(C) of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short "NDPS Act").

That the applicants were produced before the Judicial Magistrate, First Class, at Mapusa on 28th January, 2011 and the respondents prayed that they be remanded to Police Custody for 14 days. The Judicial Magistrate, First Class, by an order of the same day, was pleased to grant 7 days police custody and simultaneously, directed that the applicants be produced before the NDPS Court on 4th February, 2011 at 10.00 a.m. The applicant immediately filed an application for bail, seeking his release on bail, inter alia, on the ground that the detention was illegal, so far as it was in violation of the provisions of Section 36 of the NDPS Act. The respondents filed their objections to the grant of bail. On 4th February, 2011, the respondent produced the applicant before the Special Judge, NDPS Court, Mapusa and sought further 7 days police custody, which prayer was granted. The learned Judge directed that the applicant be produced before the Special Court on 11th February, 2011 at 12.30 p.m. The applicant filed an application on 11th February, 2011 and prior to his being produced before the Special Judge, he made an application for adding additional ground with regard to the subsequent remand to police custody and stated that it was illegal, unwarranted and unauthorised. This application was dismissed by the learned Judge on 25th February, 2011. Aggrieved by the order of the learned Special Judge, the applicant approached this Court, seeking his release on bail, on several grounds.

One of the grounds on which the bail was sought is that the order of remand dated 4th February, 2011 to Police Custody is a nullity in the eyes of law. It is stated that the learned Principal District and Sessions Judge, Panaji was the Special Judge for NDPS Court, having been appointed by an order dated 28th January, 2011. The NDPS Act envisages one Special Judge for each Special Court and for the entire State of Goa only one Special Court has been constituted u/s 36 of the NDPS Act. Under sub-section (2) of Section 36, the Special Court is to consist of a single Judge, to be appointed by the Government, with the concurrence of the Chief Justice. The Judge who has passed the order on 4th February, 2011 had been earlier appointed vide order dated 28th October, 2010 and given powers to act under the NDPS Act during the absence of the then Special Judge.

Once the Principal District & Sessions Judge, had been appointed as the Special Judge from 28th January, 2011, it is only the said Principal District & Sessions Judge, who could have remanded the applicant to custody u/s 36A of the NDPS Act. Hence, the order remanding the applicant to police custody on 4th February, 201 was totally illegal, unwarranted and ultra vires the NDPS Act. The learned Judge who passed that order has usurped the role of the Special Judge. It is only this ground which was pressed before the learned Single Judge and the same is pressed before us.

However, the narration of the facts would not be complete unless we state that the applicants in both these cases press their bail not on merits, but only on this ground. Further, the applicants were remanded from time to time initially and during the pendency of their bail applications before this Court on 24th June, 2011, by producing them before the Special Judge appointed by the Government vide Notification dated 28th January, 2011. Therefore, all that remains for consideration is whether the order of remand passed by the Judge on 4th February, 2011 being in the teeth of the Government notification appointing the learned Principal District & Sessions Judge, as the Special Judge under the NDPS Act, is legal, valid and authorised by law.

Before us, it is fairly stated that the Government Goa, by Notification, created a Special Court at Mapusa u/s 36 of the NDPS Act, which started functioning by appointment of the Judge in the year 1992 and, thereafter, the post was filled in by different Special Judges. On 26th October, 2010, the learned Judge who was then functioning as District Judge-I and Additional Sessions Judge, Mapusa was appointed as the Registrar (Judicial) of this Court. Therefore, on 28th October, 2010, another learned Judge who took over as District Judge-I and Additional Sessions Judge, Panaji was appointed to act as a Special Judge, with all powers under the NDPS Act to try cases during the absence of the earlier learned Special Judge. Thus, Judge Shri P.V. Sawaikar who was appointed vide Notification dated 28th October, 2010 was to exercise all powers during the absence of Smt. Bimba Thaly who came to be appointed as the Registrar (Judicial) of this Court on 28th January, 2011. Smt. Bimba Thaly was posted as Sessions Judge, South Goa, Margao and simultaneously, by an order of the same date Government of Goa was pleased to appoint Ms. Nutan Sardessai, Principal District & Sessions Judge, North Goa, Panaji, as the NDPS Judge.

The argument which was raised before the learned Single Judge (A.P. Lavande, J.) and reiterated albeit in different manner, is that in terms of Section 36(2) only one Single Judge can function as a Special Court. After the appointment of Ms. Nutan Sardessai, as Special Judge by order dated 28th January, 2011, Judge Shri P. V. Sawaikar could not have exercised powers under the NDPS Act. His orders remanding the applicants to custody are, therefore, patently illegal. The detention of the applicants from 4th February, 2011 is illegal and even the subsequent remand was coram non judice being granted by a Judge who is not appointed as the Special Judge. Therefore, all the remand orders are illegal and void ab initio. In other words, once the order passed on 4th February, 2011 is patently illegal and void ab initio, the subsequent remand orders cannot cure that initial lack of jurisdiction and authority and, therefore, they cannot be relied upon by the prosecution. Resultantly, the detention is void and non est entitling the applicants to be released on bail. There is no question of this order dated 4th February, 2011 being cured by a subsequent order of remand passed by the Special Judge Ms. Nutan Sardessai dated 24th June, 2011. Thus, the orders passed from 4th February, 2011 till the filing of the present bail application on 16th March, 2011, are all illegal. The right to bail cannot be nullified by relying on the subsequent order of remand passed by even a duly appointed Special Judge Ms. Nutan Sardessai.

In addition to the oral submissions, Shri D''Souza, learned Counsel appearing on behalf of the applicants, submits that in this case, the facts which are undisputed have been reproduced by the learned Single Judge in the referral order. In this case, the applicants had applied for being enlarged on bail prior to the order passed on 4th February, 2011. These applications were not disposed of when the order of remand to police custody was passed on 4th February, 2011. Therefore, the applicants filed additional grounds in the bail applications on 10th February, 2011. These bail applications were rejected by Judge Shri P.V. Sawaikar by his order dated 25th February, 2011. On 16th March, 2011, the applicants filed bail applications in this Court. Therefore, this is not a case where the applicants are pressing for bail on merits. The only ground that is pressed is that the illegal/unauthorised detention cannot be said to have been cured by subsequent orders and more so, when the applicants had already filed bail applications prior to the alleged illegality being cured. Therefore, firstly, the order dated 4th February, 2011 cannot be said to be cured or remedied by the subsequent orders of the duly appointed learned Special Judge. Assuming without admitting that the Prosecution can so argue, yet, in the facts of this case, it is apparent that the applicants sought bail prior to the order dated 4th February, 2011 and, therefore, the subsequent orders of remand even by the duly appointed Special Judge cannot cure the initial illegality and lack of jurisdiction. Once such is the ambit and scope of the application for bail, then, the case squarely falls and stands covered by the view taken by the learned Single Judge in Suryakant More (supra) and the subsequent judgment of the same learned Single Judge who rendered the same view in Daji Govind Kamble (supra). Therefore, there is no question of any assumption, namely that 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. The learned Counsel submits that his submission must be understood in the manner noted by us and not on the assumption in the referral order of Hon''ble Mr. Justice A.P. Lavande.

The learned Counsel then proceeded to give background in which the NDPS Act came to be enacted. Inviting our attention to the preamble to the Act and the object thereof, it is submitted by him that in 1989 the Act was amended to make, according to him, difficult to obtain bail and also to make provision of setting up Special Courts manned by Special Judges, with sole purpose and intention of speeding up trials. The need for speedy trials can be appreciated when one notices the jails being filled to capacity with narcotic under-trial prisoners. It is then contended that after 1989, all Courts held that the provisions of Section 37 of the NDPS Act cannot be said to be overriding Section 167 of the Code of Criminal Procedure and the principle of ''default bail'' would come into picture even in detention for the offences punishable under the NDPS Act. This is clear from the amendment to the NDPS Act made in 2001, as well. The provisions of Section 167 Cr.P.C. were made applicable, save and except, extending the requirement to file the report/charge sheet within 180 days. Relying upon the Judgments of the Hon''ble Supreme Court on the principle of grant of bail u/s 167(2) Cr.P.C., the learned Counsel submits that the instant case is not to be confused and understood as ''default bail''. In this case, what the learned Counsel would submit is that if the orders passed by Judge Shri P.V. Sawaikar were coram non judice then, the detention of the applicants by such illegal orders would result in their being enlarged on bail. Thus, the bail on such ground is sought on the touchstone of Article 21 of the Constitution of India. This is how Justice M.S. Deshpande, as His Lordship then was, understood the legal provisions.

Arguing that the view taken by Hon''ble Mr. Justice M. S. Deshpande in the case of Suryakant More (supra), is the only view which can be taken of the cases noted by His Lordship, Mr. D''Souza submits that the decisions of Hon''ble Mr. Justice N.A. Britto, as he then was, in two subsequent orders rendered by him cannot be accepted.

The learned Counsel criticised the view taken by Hon''ble Mr. Justice N. A. Britto by urging that several observations in the said judgments and order are in the nature of obiter dictum. He submits that paragraph 13 of the order passed in the case of Antonio Kaminis (supra) deals with the arguments on technical grounds urged in the application of the said Antonios. That ground was noted by the learned Single Judge thus. The applicant Antonio urged that his remand on 6.7.2009 is illegal and without jurisdiction and, therefore, he is entitled to bail. The learned Single Judge held that he was rightly remanded on that date as the order was passed by the learned Judge who was the Special Judge of the NDPS Court. By virtue of the Government Notification dated 10th July, 2009, the powers of the Special Judge were taken away from him and the same were conferred on some other Judge. However, his order of remand cannot be said to be illegal and without jurisdiction.

Now the submission of Shri D''Souza is that having rendered such a finding, the learned Judge was not called upon to make any further observations. All other observations cannot be said to be the ratio decidendi. He relies upon works of Salmond and that of Shri V.D. Mahajan in ''Jurisprudence and Legal Theory'' 5th Edn. Page 244 and submits that the order passed in Antonios Kaminis''s is that the remand was valid. This finding was rendered because on the date of the remand, the order came to be passed by the Special Judge appointed by the State Government. The subsequent observations of the learned Single Judge Shri Justice N. A. Britto, cannot be accepted as precedent. He submits that these were made after the hearing was concluded and the order was reserved. The learned Judge Shri Justice N.A. Britto had no occasion to hear any submissions of the learned Counsel of the applicants on other aspects and which opinion is rendered in his order. Therefore, the observations from paragraph 15 onwards could be said to be contrary to the settled principles of audi alteram partem.

Therefore, according to the learned Counsel, the decisions rendered by Shri Justice N.A. Britto, in both the cases, do not deal with the core issue noted by us. The reliance by Justice N.A. Britto on the decisions of the Hon''ble Supreme Court in the cases of V.L. Rohlua Vs. Deputy Commissioner, Aijal, District Mizo, , Pranab Chatterjee v. State of Bihar, (1970) 3 SCC 926 and Ramesh Kumar Singh Vs. State of Bihar and Others, was misplaced. All the three decisions arise when the petitioners before the Supreme Court prayed for their release from the custody because of their illegal detention. They claimed a writ of habeas corpus. Therefore, the Supreme Court rendered a view that for considering an illegal detention the relevant date must be the day when the decision is made and not necessarily the date on which the claim for writ is filed at which time the detention may be illegal, unwarranted and unauthorised. However, in the submission of Mr. D''Souza, that principle would apply to cases where a writ of habeas corpus is claimed. The reliance placed on the cases noted in paragraph 17 of Justice N. A. Britto''s order in Antonios Kaminis is also misplaced, because there bail was pressed prior to 1989 Amendment in the NDPS Act.

Even, otherwise, in Kana Vs. The State, , the High Court was dealing with an application for bail, which was filed after the case was committed for trial, complaining about some illegal detention prior to such commitment. Thus, the provisions of Section 309 (2) had come into the picture, and in these circumstances the bail application was rejected holding also that the earlier detention, if any, could not now be agitated. Hence, not applicable to the issue in the present case, or for that matter even to that of Antonio Kaminis''s case.

The decision in the case of Nand Ram is under the NDPS Act, was prior to the 1989 amendment. Hence, at the relevant time there was no Special Court and/or Special Judge. The matter was dealt with on the basis of the provisions of the Cr. P.C. simpliciter. Even so, the finding was not based on the provisions of the NDPS Act after its amendment which created a Special Court with powers of remand specially given to the Special Judge. Further, the decision was in the facts and circumstances that there were two cases against the applicant therein, and the remand had been given in one case, while he had not been produced in the other case, where on the very next day on an application made by the prosecution, the concerned Magistrate had directed the production of the accused before him on the next date when charge-sheet was filed.

In Durei Behera''s case which was under the Cr. P. C. for offences under the IPC, charge-sheet had been filed on 8.1.1986. On 25.04.1986 bail application was filed contending that the detention of the applicant for an earlier period from 15.10.1985 to 18.11.1985 was unauthorised, and that the subsequent orders of remand could not cure the invalidity of the earlier orders. It was in these circumstances that the High Court rejected the contention holding that if the detention of the accused is legal when the application for bail is preferred, his previous illegal detention should not be considered. It is submitted that the applicant in the present case under consideration does not have any grievance with this proposition of law.

Thus, in conclusion, it will be seen that the decision of Justice N. A. Britto in Antonios Kaminis''s case is good only to the extent of its ratio decidendi the order detaining the accused was valid having been given by a judge still holding the powers conferred under the NDPS Act. To this extent it is a precedent. The rest is obiter, and, as seen, not even good law.

Coming to Sandeep Parab''s case, Shri D''Souza submits that we have a decision which is even more startling on all grounds of traversing beyond the requirements of the ratio into the field of obiter. But, doubly, it also violates the sacred principle of Audi Alteram Partem as will be seen shortly. Para 3 of the order sets out the background. Therein three constables had been arrested in Crime No. 16 of 2010 involving offences punishable under three different enactments, viz., under Sections 380, 409 and 120(b) IPC, then under sections 7, 11 and 12 of the Prevention of Corruption Act, 1988; and under Sections 28, 29, 30, 31 and 59(2)(b) of the N.D.P.S. Act. It may be noted that none of the offences attracted the rigors of Section 37 NDPS Act. The applications for bail had been filed in this Court, after the Special Court at Mapusa, constituted under the NDPS Act, by an order came to the conclusion that the Court had no jurisdiction to decide the applications for bail. On behalf of the applicants/accused it was contended that the remand by the Special Judge under the Prevention of Corruption Act was illegal. Among the several issues raised, the key was which court had jurisdiction to try the case, and, on this point the order finally held that it lay with the Special Court, Mapusa, constituted under the NDPS Act. After recording arguments tendered by both sides, the order at para 13 suddenly, and without warning to any party, falls back on the decision of Antonios Kaminis with the following opening :

The said judgments were cited and considered by me in the case of Antonio Kaminis ( by judgment dated 16.10.2009 ) in Criminal application ( Bail ) No. 301 of 2009.............

Justice N. A. Britto then went on to quote extensively from the above mentioned decision to come to the conclusion stated at para 24:

To sum up, as on today, the applications have been remanded by a court of competent jurisdiction, and their remand is valid and legal, and, therefore the applicants are not entitled to bail. Bail can be granted to the applicants, as held by this court in the case of Antonio Kaminis vs. Union of India (Supra) only in terms of the proviso to sub-section (2) of section 167 of Chapter XXXIII of the Code of Criminal Procedure, 1973, and in cases under the NDPS Act if the case is covered by sub-section (4) of section 36A, or section 37 of the Act.

There is no reference whatsoever to section 37 of the NDPS Act, or any Supreme Court judgment stating that this section was the sine qua non for granting bail, or for that matter, even to sub-section (4) of section 36A wherein the police have up to 180 days to investigate many of which were still left. Bail was granted on merits within three months (i.e. 90 days) of the arrest, and rightly so, as the rigors of section 37 of the NDPS Act were not attracted.

In these circumstances the decision in case of Sandeep Parab (supra) cannot be held to be precedent for the proposition to reject bail in the present case. Being based on Antonio Kaminis (supra), it falls with that decision. Also, it once again suffers from the vice of being against the first principle in any judicial proceedings Audi Alteram Partem. The applicants therein were not invited to meet grounds found in the decision of Antonio Kaminis which had not been raised during the arguments.

Mr. D''Souza submits that none of the above two decisions of Justice N.A. Britto i.e. Antonio Kaminis & Sandeep Parab can be held as precedents in support of any proposition to deny bail to the applicants. Besides, the judgments referred to in the two decisions are also of no help to the prosecution as the factual matrix in each case is different from what is being considered in the present case.

Thus, he submits that the decision in the case of Suryakant More (supra) lays down the correct law, as the decision came immediately after the 1989 amendment which brought in changes both to section 36A and 37 NDPS Act. By section 36A, inter alia the Magistrate could not remand for more than 15 days in the whole after which the accused was necessarily to be forwarded to the Special Court, if constituted, and in its absence to the Court of Sessions during the interim period. Section 37, as seen earlier, made the grant of bail subject to the provision that there were reasonable grounds for believing that the accused was not guilty of the offence charges.

In Suryakant Ramdas More''s case the Magistrate had gone beyond the maximum period of 15 days and immediately the accused sought their release on bail by filing an application on July 12th 1989, on grounds of illegal and unauthorised detention. Pending

consideration of the bail application they came to be produced before the Additional Sessions Judge and then remanded from time to time. The Additional Sessions Judge rejected the bail on grounds that he was empowered to deal with the case under the amended provisions of the NDPS Act and therefore competent to grant remand. After dealing with the various arguments raised, the Order at para 9 lays down the reason for grant of bail:

However, in the present case, it is apparent that the learned Metropolitan Magistrate went beyond his powers in authorising detention for a period exceeding 15 days and not considering the application for bail which was filed on 12th July, 1989. On the date on which the application for bail was made, the applicants detention was unauthorised and though it may be possible for the learned Additional Sessions Judge after taking cognizance of the offences to authorise the detention, if the circumstances justified such a course until the cognizance is taken then that detention which was unauthorised could not be cured on the date on which bail application was filed and the applicants who were under unauthorised detention were entitled to be released on bail....

As such bail was granted.

Mr. D''Souza submits that the present case under consideration is squarely covered by the above decision of Justice Deshpande in Suryakant Ramdas More''s case. Here, too, it is a case based on the same provision of law under the amended NDPS Act. Further, application for bail was filed during the time when the detention was illegal and unauthorised, having been remanded by Judge Mr. P.V. Sawaikar who was not duly appointed, and which unauthorised detention continued even while this Court was seized of the issue. It was only at the very end of the proceedings pending in this court that the applicants were produced before the duly constituted Special Judge and remanded to further custody. Thus, relying on the ratio of Suryakant Ramdas More''s case, the applicants would be entitled to be released on bail.

On the other hand, Mr. C. A. Ferreira, learned Public Prosecutor appearing on behalf of the respondent submits that the applications for bail are pressed in this case on the footing that the applicants are seeking ''default bail''. He submits that Section 167 Cr.P.C. would, therefore, have to be seen in the light of the demand for bail in this case. He submits that recognising the need to ensure that an accused is not in custody for an indefinite period of time, and also taking into account the fact that it is often difficult to complete investigations within a period of 15 days, the 41st Law Commission Report of September, 1969 following the recommendations of the 14th Law Commission recommended an outer limit of 60 days in the whole for such detention. Mr. Fereira submits that with the enactment Code of Criminal Procedure, 1973 Section 167 of the Code had been re enacted, though not strictly as suggested by the Law Commission, but by incorporating proviso(a) to sub-section 2, which reads as under :

Provided that

(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding sixty days and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Mr. Ferreira submits that by the 1978 Amendment Act, Proviso(a) to sub-Section 2 was further amended to incorporate the 90 days period and the 60 days. Sub-Section (2-A) was also added to Section 167 to make provision for producing an accused person before an Executive Magistrate, when a Judicial Magistrate is not available. Subsequently, according to Mr. Ferreira, by amendment of 2009, production of accused person via video conference has been permitted as a valid production under proviso(b) to sub-section(2) of Section 167 of the Code.

Mr. Ferreira urges that the scheme of Section 167 is with the intent to complete investigation quickly, so that the accused in custody does not remain in custody indefinitely, pending investigations. This can be seen from the law Commission recommendations as well as the re-enacted Section 167 of the Code and the amendments made thereto. The Legislature has disfavoured prolonged judicial custody during investigation and in support of his submission, he relies upon a decision in the case of Dinesh Dalmia Vs. C.B.I., .

Mr. Ferreira then submits that a perusal of Section 167 of the Code will reveal that the authorisation of the detention of the accused for 90/60 days is pending investigation and section 309 of the Code would operate when a Magistrate is conducting an inquiry (when committing a case for trial) or a trial and in support of his argument, he places reliance upon a decision in the case of State of Uttar Pradesh Vs. Lakshmi Brahman and Another, . He submits that the power of the Court to direct a remand of an accused in terms of Section 167(2) or Section 309(2) of the Code, would depend on the stages of the trial. While Section 167(2) is pre-cognizance, Section 309(2) is post-cognizance.

On the scope of Section 167 Cr. P.C. and consequence of default in filing charge sheet within the time prescribed, he urges that Section 167 of the Code provides for the maximum period an investigating authority can detain a person, upon due authorization from a Magistrate. It entitles an accused person detained beyond period of 90/60 days, to right to bail, in the event such right is exercised when charge-sheet has not been filed within the statutory period and it does not survive or remain enforceable on the challan being filed. In support thereof Mr. Ferreira has placed reliance upon the decision in the case of Union of India (UOI) Vs. Thamisharasi and Others, and the Constitution Bench Judgment in Sanjay Dutt Vs. State through C.B.I., Bombay, , also in the case of Dr. Bipin Shantilal Panchal Vs. State of Gujarat, . Therefore, once a charge-sheet is filed, no further authorization for custody of the accused is needed and stage of remand would arise only when accused person is produced before competent Magistrate for inquiry or trial u/s 309 of the Code.

Mr. Ferreira then urges that Section 167(2) therefore deals with the right of investigating Authority to detain an accused person to such custody with due authorization of the Magistrate and conversely the right to such accused being entitled to bail, if he applies for bail upon expiry of the statutory period and before filing of chargesheet. But such a right is a defeasible right. In support thereof, he relies on a recent Judgment of the Hon. Supreme Court in the case of Pragyna Singh Thakur Vs. State of Maharashtra, reported in 2011 (10) SCC 445.

It is the submission of Mr. Ferreira, that Section 167 of the code does not refer to any authorisation to detain a person in custody being done by a "Competent Magistrate having jurisdiction". Article 22(2) of the Constitution provides not only for production of accused who is arrested and detained in custody before a Magistrate within 24 hours from time of arrest, but also provides that no such person shall be detained in custody beyond the said period without the authority of a magistrate. Therefore, it is not only a statutory right, but also a constitutional right to be produced before a Magistrate. The constitution also does not qualify the words "Magistrate" with the words "competent Magistrate". He submits that a perusal of section 167 of the Code makes it clear that an accused in custody, during course of investigation and before filing of chargesheet, could be produced in the first instance before any magistrate whether such Magistrate has jurisdiction or not. Sub-section(2) of Section 167 of the Code makes this position clear whereby the Magistrate may authorise detention of the accused from time to time, in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. However, the sub-section does not end with these words. It also mandates that if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

Hence it is evident that it is only when (I) the magistrate has no jurisdiction to try the case or commit it for trial and (ii) such Magistrate considers further detention unnecessary, he may order the accused to be forwarded to such Magistrate having such jurisdiction. This means that he may or may not forward to such Magistrate having jurisdiction and in such case, if such accused is not forwarded to such Magistrate having jurisdiction such accused person in custody is entitled to be released on bail. Proviso (a) to sub-section (2) of Section 167 of the Code also does not specify that he should be ''the Magistrate having jurisdiction'' but merely uses the words "the Magistrate'' which is referable to the Magistrate as in sub-section (2) of Section 167 of the Code-whether he has jurisdiction or not. Furthermore, this contention is further reinforced by the use of the words ''no magistrate shall authorise the detention...'' ( for 90/60 days), which is evident that the legislative intent in Section 167 of the Code has never been as to the authority of the Magistrate to authorise detention but time frame of 90/60 days as detailed above.

According to Mr. Fereira, the only decision on which he could lay hands on wherein there is an observation that "Magistrate" in the provision of Section 167 would mean the Magistrate having jurisdiction to try the case is found in the case of Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, . However, it is respectfully submitted by Mr. Ferreira that this judgment cannot be construed as a precedent, binding this Court. It is rendered per incuriam and obiter dicta not binding, since the Hon''ble Supreme Court was considering the question of applicability of Section 167 of the new Code of 1973 in case of a person who had been remanded and taken in custody prior to enforcement of the new Code of 1973. It also came to a conclusion that it was the old Code that is applicable and consequently it had not the occasion to deal with any issue arsing u/s 167 of the new Code or interpretation of any part thereof. Only the essence of the decision and its ratio is binding and no other observation found therein. Every decision has to be read as applicable to the particular facts found therein. It would not be profitable to extract a sentence here and there from the Judgment to build upon it because the essence of the decision is its ratio and not every observation found therein and in this connection he relies on a decision in the case of Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, .

By urging that de facto doctrine protects decisions of Judge P. V. Sawaikar, Mr. Ferreira, submits that by order dated 11th January, 2011, the Principal District & Sessions Judge, North Goa, pursuant to instructions received from the High Court, directed Judge Shri Sawaikar "to hold sittings in the N.D.P.S. Court, Mapusa..... till appropriate directions are received from this Court and as a temporary arrangement." He submits that the performance of the duties by Shri Sawaikar, would therefore not be of an usurper, but by an Order, the validity of which cannot be called in question in collateral proceedings and his acts would stand valid by invocation of the de facto doctrine. A Judge, de facto, is one who is not a mere intruder or usurper, but one who holds office, under the colour of lawful authority even though his appointment is defective and may later be found to be so. Whatever be the defect of his title to the office, judgment pronounced by him and the acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.

Mr. Fereira next submitted that there is yet another rule based on public policy. The defective appointment of a de facto judge may not be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Hence, the rule against collateral attack on the validity of judicial appointments. To question a judge''s appointment in an appeal against his judgment is such a collateral attack. In support of his argument he places reliance upon a decision in the case of Gokaraju Rangaraju Vs. State of Andhra Pradesh, , followed in the case of Pushpadevi M. Jatia Vs. M.L. Wadhavan, Addl. Secretary, Government of India and Others, and in the case of Beopar Sahayak (P) Ltd. and Others Vs. Vishwa Nath and Others, .

Mr. Ferreira submits that last remand by a competent Magistrate cures any previous illegality in detention of an accused. He submits, without prejudice, assuming that the de facto doctrine does not apply in the present case, yet when accused in custody is remanded by a Magistrate having jurisdiction, such last remand cures all previous irregularities/illegalities in prior remand. Section 167 of the Code as seen above contemplates a time frame within which the prosecution is statutorily required to file a charge sheet in the event an accused person is in custody and conversely entitling such accused person to bail if charge sheet is not filed within the time frame and such accused has applied for bail and is ready to furnish securities/sureties for his release. Also it has been detailed herein above that the right is defeasible and the same can be taken away by filing of the chargesheet even beyond the statutory period and in such case if the applicant has not availed of the right to seek bail during that period, then such accused person in custody will not be entitled to seek bail as of right u/s 167 of the Code. This effectively means that even if there is a detention which is in contravention of Section 167 of the Code (i.e beyond the statutory period permissible) and such person has not applied for bail before filing of the charge sheet during this "window period", then notwithstanding the illegality in the further detention (on account of it not being authorised by law), the filing of the charge sheet cures the previous illegality if any and hence the disentitlement for bail. If a provision is not mandatory but merely directory, then non compliance will not vitiate an action thereunder, ab initio. On this principle, the competence of the Magistrate not being the intention of the legislature in Section 167(2) of the Code, but as to time-frame, non-compliance with the authorization order from ''competent Magistrate'' would not invalidate the order of detention nor the detention of such accused and on this principle, the theory of last authorization/remand curing any illegality or irregularity on any previous authorization/remand comes into play. In keeping with this scheme of Section 167 of the Code, in examining such issue, several High Courts have held that there is no entitlement of bail when the last was authorizing detention/remand is by a Court of competent jurisdiction, which will validate irregularities/illegalities in any previous order authorising further detention/remand.

In matter of habeas corpus, Mr. Fereiera submits that the detention of the Petitioners in judicial custody was held to be illegal. Viz, without valid orders of remand. The question was whether they were entitled to be released notwithstanding the fact that the subsequent remand was by a competent Magistrate. Holding that there is distinction between the case of entitlement to release u/s 167(2) of the Code and unauthorised detention, in Sunil Singh Vs. State of Bihar, reported in CDJ 2000 Bihar HC 065,Their Lordships refused to direct release of the petitioners. The question of illegal detention and the relevant date for determining the validity of the detention of the Petitioner was considered. The Division Bench, relying on an earlier Full Bench Judgment held that Court is competent to remand an accused into custody u/s 309(2) Cr.P.C. Even if he is in illegal imprisonment and can thus rectify its mistake and transform the illegal imprisonment into a legal one as has been held in the case of Umakant Yadav Vs. Superintendent of District Jail, Azamgarh, reported in CDJ 1994 ALL HC 407.

On a reference (mentioned in the previous judgment), the Full Bench of the Allahabad High Court in the Bal Mukund Jaisawal Vs. Supt., District Jail, Varanasi, reported in CDJ 1997 ALL HC 1321, held that where an accused is in judicial custody on the basis of a valid remand order passed u/s 209 or 309 Code of Criminal Procedure by magistrate or by any other competent Court, then such an accused cannot be set at liberty by issuing a writ of habeas corpus solely on the ground that his initial detention was violative of a constitutional guarantee enshrined in Articles 21 and 22 of the Constitution of India.

Mr. Ferreira next contended that in bail applications merely because of any anterior illegal custody of the accused on the basis of an illegal remand, an accused is entitled to bail, was specifically considered and rejected in the case of Kana (supra) The Rajasthan High Court decided a reference to larger Bench on account of conflicting views on same question as in reference before this Court in this matter. Reliance in this connection is placed on Tajukhan Vs. State of Rajasthan, reported in 1983 Cri.L.1518. The two questions for reference were as follows (See para 4 of Judgment): Whether any illegality in the detention arising out of an invalid order of remand can be cured by a subsequent valid order of remand? What is the date with reference to which the illegality of the detention should be considered in a bail application? The conclusions are at para 21 (last remand cures illegal remand) and at para 26 (date of hearing of bail application is relevant date).

No right to bail on account of illegal detention and in support thereof, relied upon the case of Nand Ram Vs. State of (Delhi Administration) reported in Cr.M.(M) No.1403/1987. Time period as prescribed in Section 167(2) of the Code not over. Whether the Applicant will be entitled to be released on bail if a detention by Magistrate was unauthorized.(See para 3 last sentence).

In Daji Govind Kamble (supra) making a distinction between entitlement to release for failure to file charges-sheet within time-period prescribed in Section 167(2) of the Code, His Lordship Justice M. S. Deshpande held that applicant had no right to be released on bail when the detention was by competent Magistrate.

Despite the fact that detention was illegal, applicant held not entitled to bail and reliance in respect is placed on the case of Yeshwant Bapuji Mokash V/s State of Maharashtra and ors., reported in CDJ 1967 BHC 055.

Assuming there was a violation by police in not producing accused before Magistrate within 24 hours, such accused can seek liberty as long as accused in custody of police and not after production before Magistrate and after his remand (para 60). Right under Article 22(2) of the Constitution is available only against the police and not after Magistrate remands accused to custody. It is not available against custody in jail of a person pursuant to a judicial Order. Article 22(2) of the Constitution does not operate against a judicial order (para 63).

Relying on Constitution Bench decisions, the Hon. Supreme Court held that it should be seen if on the date of return of the rule, the custody or detention of the accused is on the basis of a valid order. So also, in Pragnya Thakur (supra) it has been held that ''even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet if filed, the said right to be released on bail would be lost.'' (Para 54 of the Judgment). This is also the view of the Rajasthan High Court in ''Taju Khan Vs. State of Rajasthan.''

Mr. Fereira submits that such accused in custody is not entitled to bail u/s 167(2) of the Code on account of such illegality or otherwise, and such an illegality would stand cured by a valid order or authorisation / remand from competent Magistrate and the relevant date would be the date of return/hearing.

For properly appreciating the rival contentions, it would be appropriate to refer to the NDPS Act. The preamble to the Act would show that it is an Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. It is with such intent and purpose that the Act is enacted. Therefore, the controversy before us will have to be dealt with bearing in mind the same. The Act contains several definitions in Section 2 and we are not concerned with the said definitions. In Chapter II, which is entitled "Authorities and Officers", Sections 4 to 6 appear. In Chapter IIA and Chapter III, certain provisions and particularly, "National Fund for Control of Drug Abuse and Prohibition", "Control and Regulation" have been placed. Therein Sections 8 to 14 are appearing. Chapter IV sets out various offences and penalties therefore .In the said Chapter, we are essentially concerned with Sections 36, 36A, 36C and 36D. They read thus :

[36. Constitution of Special Courts.-(1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many as Special Courts as may be necessary for such area or areas as may be specified in the notification.

(2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.

Explanation.- In this sub-section, "High Court" means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions

Judge or an Additional Sessions Judge.]

1[36-A. Offences triable by Special Courts.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers-

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him;

that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise u/s 167 of the Code of Criminal Procedure, 1973, in relation to

an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail u/s 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted u/s 36.

(4) In respect of persons accused of an offence punishable u/s 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.]

[36-C. Application of Code to proceedings before a Special Court.-Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.]

1[36-D. Transitional provisions.-(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, which is triable by a Special Court shall, until a Special Court is constituted u/s 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session.

(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:

Provided that nothing contained in this sub-section shall affect the power of the High Court u/s 407 of the Code of Criminal Procedure, 1973 (2 of 1974) to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).]

A bare perusal of Section 36 would indicate that it provides for constitution of Special Courts. Sub-section (1) gives power to the Government for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, to constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. Sub-section (2) states that the said Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. There is an explanation below Section 36(2). This explanation is vital for our case. That would denote that a Sessions Judge or the Additional Sessions Judge working as such, prior to his appointment, can be appointed by the Government as a Judge of the Special Court. Sub-section (3) of this provision would further demonstrate that the qualification for appointment of a Judge of the Special Court is that immediately before such appointment he shall be a Sessions Judge or an Additional Sessions Judge. If Section 36A which has been amended from time to time is noted, it would become clear that all offences under the NDPS Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court, constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. Thus, what is mandatory is the trial of the offences under the NDPS Act, by the Special Court. The use of the word "only" before the words "by the Special Court..." would indicate the legislative intent. Then comes clause (b) of sub-section (1) of Section 36A, which authorises a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of Cr.P.C. to authorise detention of a person accused of or suspected of the commission of an offence under the NDPS Act. He can authorise detention of such person in such custody as he thinks fit for a period not exceeding 15 days, subject to, of course, the proviso. Clauses (c) and (d) empowers the Special Courts to exercise the same power which a Magistrate having jurisdiction to try a case may exercise u/s 167 of Cr. P.C. Sub-sections (2), (3) and (4), so also sub-section (5) would indicate that the said sub-sections enable speedy trial of the offences under the NDPS Act by the Special Courts and to facilitate the same, one would find that Sections 36C and 36D are enacted. Each of these provisions has been inserted after the NDPS Act was amended in 1989.

The statement of objects and reasons of Act 2 of 1989 would indicate that the provisions of the NDPS Act have been made more rigorous. Now several amendments are made, so as to provide for attainment of objectives indicated in the statements of objects and reasons of Act 2 of 1989. It is not as if the Act had not intended earlier speedy trial of the offences, however, when the measures already taken were found to be inadequate, that the Parliament stepped in to achieve its object and purpose effectively and completely. Therefore, Section 36C, while not ruling out applicability of the Code of Criminal Procedure, 1973 clarified that save as otherwise provided in the NDPS Act, the provisions of Code of Criminal Procedure shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. Equally, Section 36D which came to be substituted by Act 9 of 2001 with effect from 2nd October, 2001 enacts transitional provision and, therefore, any offence committed under this Act on or after commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989) which is triable by a Special Court shall, until a Special Court is constituted u/s 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session.

All these provisions have been referred to by us because they have an important bearing on the controversy raised before us.

We do not wish to go into the questions which are settled by the decisions of the Hon''ble Supreme Court and the statutory provisions referred therein, including applicability of the principle of ''default bail'' (Section 167 Cr. P.C.) to the cases under the NDPS Act. That aspect having been clarified amply by the legislature stepping in, we need not go into any further details. Suffice it to note that in a decision which is reported in Union of India (UOI) Vs. Thamisharasi and Others, what the Supreme Court has considered is whether the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for commission of an offence under the NDPS Act to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period. The Madras High Court answered the question in the affirmative and directed release on bail and the matter was carried to the Supreme Court by the Union of India. After referring to all these provisions, save and except, Section 36D which was not on the statute book and equally some of the sub-sections of Section 36A, because this provision came to be substituted by further amendment vide Act 9 of 2001, as also referring to the Code of Criminal Procedure, 1973 and its own Judgment in the case of Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, , in which settled principle, viz. the Court will have no power of remand of an accused to any custody unless the power is conferred by law, is laid down.

Mr. D''Souza, learned Counsel appearing for the applicants would emphasise this principle in support of his argument that a power of remand of an accused to any custody has to be conferred by law. In this case, it is conferred by law on the Special Court alone. That is not end of the matter, according to him. That power is to be specifically exercised by a Judge of such Special Court, duly appointed by a Notification in the Official Gazette by the Government with the concurrence of the Chief Justice of the High Court. In the instant case, he referred to several notifications in the field and submitted that Judge Shri P.V. Sawaikar, may be a Sessions Judge, but he was not a Judge of the Special Court which alone is empowered to try the offences under the NDPS Act. In other words, he must be a Special Judge. He has to be a Judge of a Special Court within the meaning of Section 36 of the NDPS Act and even if he is a Sessions Judge otherwise, or an Additional Sessions Judge, he cannot order remand of the applicants to any custody. Having done so, he has not just committed an irregularity, but grave illegality, going to the root of the matter. Therefore, on this ground the applicants are entitled to be released on bail. This, he terms as being released on bail by applying the principle akin to '' in default bail''.

It is not possible to accept this contention of the learned Counsel. The Code of Criminal Procedure, in Section 167 sets out the procedure when investigation cannot be completed in 24 hours. The said provision has fallen for consideration of the Hon''ble Supreme Court on a number of occasions. Suffice it note that in the latest decision in Sadhvi Pradgya (supra), the Hon''ble Supreme Court, in the context of interpretation of these previsions, held thus :

Section 167(2) is one, dealing with the power of the learned Judicial Magistrate to remand an accused to custody. The 90 days'' limitation is as such one relating to the power of the learned Magistrate. In other words the learned Magistrate cannot remand an accused to custody for a period of more than 90 days in total. Accordingly, 90 days would start running from the date of first remand. It is not in dispute in this case that the charge-sheet was filed within 90 days from the first order of remand. Therefore, the appellant is not entitled to default bail.

There is yet another aspect of the matter. The rightunder Section 167(2) CrPC to be released on bail ondefault if charge-sheet is not filed within 90 days fromthe date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after thefiling of the charge-sheet. In other words, even if anapplication for bail is filed on the ground that charge-sheet was not filed within 90 days, but before theconsideration of the same and before being released onbail, if charge-sheet is filed, the said right to be released on bail would be lost. After the filing of thecharge-sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from theConstitution Bench decision of this Court in Sanjay Dutt (2) v. State[paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49.

This principle has been reiterated in the followingdecisions of this Court:

(1) State of M.P. v. Rustam7, SCC para 4;

(2) Bipin Shantilal Panchal v. State of Guj9,SCC 4. It may be mentioned that this judgment was delivered by a three-Judge Bench of this Court;

(3) Dinesh Dalmia v. CBI 10, SCC 39; and

(4) Mustaq Ahmed Mohammed Isak v. State of Mah 11, SCC para 12.

In Uday Mohanlal Acharya v. State of Maharashtra12 a three-Judge Bench of this Court considered the meaning of the expression "if already not availed of" used by this Court in the decision rendered in Sanjay Dutt8 in para 48 and held that if anapplication for bail is filed before the charge-sheet is filed ,the accused could be said to have availed of his right u/s 167(2) even though the court has not considered the said application and granted him bail u/s 167(2) CrPC. This is quite evidentif one refers to para 13 of the reported decision as well as the conclusion of the Court at p. 747.

It is well settled that when an application fordefault bail is filed, the merits of the matter are not to be gone into. This is quite evident from the principle laid down in Union of India v. Thamisharasi 13,SCC para 10, placita c-d.

From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days,before the consideration of the same and before being released on bail if charge-sheet is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in factbail is not claimed on merits in the present appeal at all .

Mr. D''Souza''s argument that the bail that is sought in the instant applications, is on par with this principle, has no merit once the procedure prescribed by the Code of Criminal Procedure is understood as above.

The argument in this case is not of any inability to file the charge-sheet within the requisite period. The argument while seeking bail is that there was a patent illegality committed while passing an order of remand of the accused/applicants to custody on 4th February, 2011. That order has been passed by an Additional Sessions Judge who was not a Judge in terms of Section 36 and particularly, sub-section (2) of the NDPS Act. Therefore, he was not authorised by law to pass such an order. He having made an order of remand and that having been continued by a duly appointed Special Judge in terms of the above provision, does not mean that the illegality is cured or rectified or remedied. That illegality vitiates the continued detention. Therefore, the only parity between such ground while seeking bail and that u/s 167 Cr.P.C. (default bail) which is common is that the bail is not sought on merits of the case. As noted by us and pointed out by the learned Public Prosecutor that the default which entitles the accused to seek bail is inability to file challan or charge-sheet within the statutory period. However, the right is not absolute and can be defeated. That is a distinct aspect and cannot be mixed up with the competence of the Presiding Officer to authorise detention in custody on production of the accused.

Therefore, the real controversy is something else. Now, we come to the main issue which is placed before us for consideration, i.e. whether the views taken by the two learned Single Judges of this Court are completely divergent, as held by the Hon''ble Mr. Justice A.P. Lavande.

In appreciating this aspect of the matter, what we have to notice is the facts in the first decision of the Hon''ble Mr. Justice M. S. Deshpande, as His Lordship then was. In the case of Suryakant More (supra), the applicants who were arrested on 24th June, 1989 came to be produced before the Metropolitan Magistrate, 12th Court, Bandra, Bombay on the next day. A remand was granted. The first remand was for 12 days and thereafter for 10 days. On 12th July, 1989, the applicants filed an application for being released on bail and pending consideration of that application, they came to be produced before the Additional Sessions Judge, Greater Bombay on 17th July, 1989. Since then, they came to be remanded from time to time. An application for bail presented by them raising several contentions came to be considered by the learned Additional Sessions Judge and was decided on 7th August, 1989 holding that he was invested with the powers of the Special Court to be established u/s 36 of the Act, by virtue of the provisions of Section 36D, as amended and that, he was, therefore, competent to grant remand and hold the trial. The application was, therefore, rejected on both the grounds, of maintainability, as also on merits.

The argument before the learned Single Judge was that in view of the clear provision of Section 36A(1)(d) of the NDPS Act, the Magistrate could not have passed an order authorising detention of the applicants for a period exceeding 14 days and since he authorised detention for a period exceeding 15 days, the detention was wholly unauthorised. The contentions are noted by the Hon''ble Mr. Justice Deshpande in para 3 of his Judgment in Suryakant More''s case. Paragraphs 4 and 5 of the Judgment and Order analyse the NDPS Act and the scheme thereof.

Thereafter, the learned Single Judge observed that the Magistrate went beyond his powers in authorising detention for a period exceeding 15 days and not considering the application for bail which was filed on 12th July, 1989. On the date on which the application for bail was made, the applicants detention was unauthorised and it may be possible for the learned Additional Sessions Judge after taking cognizance of the offences to authorise the detention, but he could not have ignored the fact that the detention which was authorised earlier by the Magistrate cannot be cured by him and, therefore, the applicants were entitled to be released on bail.

This Judgment was delivered by the Hon''ble Mr. Justice M. S. Deshpande and he also delivered another Judgment in Criminal Application No.1985 of 1989 decided on 6th September, 1989 in Daji Govind Kamble (supra), wherein some what identical contention as noted in the case of Suryakant More was referred, save and except, that the bail application came to be presented not when the detention was authorised by the Magistrate, but when the applicant Daji Kamble was produced before the Additional Sessions Judge on 25th July, 1989. Rather, the application was presented on 25th August, 1989. The same argument as was canvassed in Suryakant More''s case, came to be canvassed. But the same learned Single Judge rejected the application by holding that it does not appear that because the Magistrate exceeded his authority in permitting detention beyond a period of 15 days, the detention authorised by the Special Court would be vitiated when it is apparent that at the time of authorising the detection, the Special Court was invested with that power. The crucial observations are to be found in paragraphs 5 and 6 of the report, which read thus :

Having regard to the provisions of section 167 as well as the amended provisions of the Narcotic Drugs & Psychotropic Substances Act, it does not appear to me that because the Magistrate exceeded his authority in permitting detention beyond a period of 15 days, the detention authorised by the Special Court or the Court of Session would be vitiated when it is apparent that at the time of authorising the detention, the Special Court was invested with that power. The earlier unauthorised detention can not be invoked for the purposes of urging that what was authorised would also become invalid because of some previous irregularity by the Magistrate.

In Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, , it was observed that, the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law and the assumption without reference to section 344 of the old Code that such a power existed is not correct. That stage for consideration in this case would arise only in the event of cognizance being taken by the Special Court u/s 36-A(d) of the Act. I am, therefore, not in a position to accept the contention that the petitioner is entitled to be released on bail merely because the period for which the Magistrate authorised the detention was in excess of his powers, when the Additional Sessions Judge could allow further detention.

The learned Single Judge, therefore, affirmed the view taken by the Additional Sessions Judge that since the Special Court has not so far been established, relying on the transitory provisions i.e. Section 36D, he held that the Court had jurisdiction. In Daji Kamble''s case, the applicant was not produced before the Additional Sessions Judge until 25th July, 1989 i.e. for more than a month after his arrest and in the meanwhile orders of detention had been obtained from the Magistrate. There can be no doubt about the proposition that the detention under the orders of Magistrate for a period exceeding 15 days would be unauthorised. However, the learned Single Judge rejected the argument on behalf of the applicant Daji that once this position is accepted, it would follow that further detention authorised by the learned Additional Sessions Judge would also be unauthorised. That argument has been rejected by holding that assuming that the detention under the orders of the Magistrate was unauthorised, would it affect the validity of the order of detention passed by the Additional Sessions Judge and in this respect, there is nothing in the Judgment of the Hon''ble Supreme Court in the case of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , which will justify the submission that the detention being continued, the same would be vitiated.

To our mind, therefore, there is somewhat divergence of opinion in the Judgments of the same learned Single Judge when he decided Suryakant More''s case and when he rendered his Judgment in Daji Kamble''s case. Pertinently, the Judgment in Suryakant More''s case has been rendered on 28th August, 1989; whereas in Daji Kamble''s case the same is dated 6th September, 1989.

In Antonios Kaminis (supra), the facts were that the applicant Antonios was arrested on 21st June, 2009 with the allegations that he was found in possession of 243 gms. of cocaine, which is a commercial quantity and 361 gms. of hashish. He was produced on 22nd June, 2009 before the Judicial Magistrate, First Class, who was pleased to remand the applicant to judicial custody for 14 days. He was produced before the Additional Sessions Judge for further remand on 6th July, 2009 when he was remanded. He applied for bail to the NDPS Court on 17th July, 2009 which application came to be rejected on 5th August, 2009. Prior to that, he was remanded to judicial custody on 20th July, 2009. The argument was that the remand order dated 6th July, 2009 is illegal and without jurisdiction and, therefore, the applicant was entitled to bail. The learned Judge held that the Judge (Shri B.P. Deshpande), who passed the order was the Special Judge, appointed for NDPS Court, Mapusa. The powers of the Special Judge, Mapusa were conferred on an Additional District and Sessions Judge, Mapusa. Pursuant to order dated 20th May, 2009, issued by the High Court, another Additional District and Sessions Judge, (Smt. Thaly) had taken charge with effect from 8th June, 2009. However, she was not conferred with any of the powers of the Special Judge under the NDPS Act. For that reason, the applicant Antonios Kaminis was produced before Judge Shri B.P. Deshpande for further remand on 6th July, 2009 and he was pleased to remand the applicant to further judicial custody till 20th July, 2009. After the order passed on 6th July, 2009, the Government of Goa, issued a Notification dated 10th July, 2009 and appointed Smt. Bimba K. Thaly, District Judge - I and Additional Sessions Judge, Mapusa as a Special Judge of the Special Court under the NDPS Act to try cases under the said Act. On the basis of this Notification, it was argued that Smt. Thaly was the Special Judge of the NDPS Court from 8th June, 2009 and as such, Shri Deshpande had no jurisdiction to remand the applicant to the judicial custody on 6th July, 2009. Reliance was placed on Suryakant More''s case (supra) and in the case of Joaquim M. Correia vs. State of Goa, an unreported Judgment of this Court dated 18th July, 1998. The learned Single Judge, after considering the rival contentions, concluded that prior to the Notification dated 20th September, 2009, Judge Shri B.P. Deshpande was appointed as a Special Judge under the NDPS Act, after he was transferred and posted at Mapusa as the Additional District and Sessions Judge - I and continued to have the powers conferred on him until the Government Notification dated 10th July, 2009. Though, that notification divested Shri Deshpande of the powers as Special Judge retrospectively from 8th June, 2009 i.e. from the date Smt. Thaly took charge at Mapusa, the said notification cannot render invalid, by any stretch of imagination, on any principle of interpretation known to law, the orders passed by him while he had the powers of the Special Judge, particularly the order of remand dated 6th July, 2009. On 6th July, 2009 when he remanded the applicant, he was very much the Special Judge of the NDPS Court and, therefore, the order dated 6th July, 2009 is legal and within jurisdiction.

The second ground on which the applicant''s entitlement for bail was rejected, was that entitlement for bail has to be considered on the date of the application filed before this Court and not from the date it was filed before the NDPS Court i.e. 17th July, 2009. The observations in paragraphs 13 and 14 of the order read thus :

First. There can be no dispute that prior to the Notification dated 20.09.2009 issued by the High Court it is Shri Depshpande (like Shri Salkar, in Joaquim M. Correia''s case) who was appointed as the Special Judge under the Act after he was transferred and posted at Mapusa as Additional District and Sessions Judge. There is no doubt that Shri Deshpande was then transferred from Mapusa as Additional District and Sessions Judge and posted at the Children''s Court but he continued to have the powers conferred upon him of the Special Judge (as Mr. Salkar) until the Government''s Notification dated 10.07.2009. Though the said Notification dated 10.07.2009 has divested Shri Deshpande of the powers as Special Judge retrospectively from 08.06.2009 i.e. from the date Smt. Thaly took charge at Mapusa. The said Notification cannot invalidate, by any stretch of imagination, on any principle of interpretation known to law, the orders passed by him, while he had the powers of the Special Judge, particularly the order of remand dated 06.07.2009. On 06.07.2009, when he remanded the applicant he was very much the Special Judge of the N.D.P.S. Court and therefore, the order dated 06.07.2009 is legal and within jurisdiction. Even in cases of repeal of statutes, things done under the repealed statute remain as valid as if there was no repeal. It appears that the applicant was produced before Shri Deshpande, very much in conformity with the observations of this Court in the case of Joaquim Correia (supra) and the remand granted to the applicant by him on 06.07.2009 cannot be said to be invalid or without jurisdiction. The applicant therefore, was rightly remanded by Shri Deshpande on 06.07.2009 as on that date he was the Special Judge of N.D.P.S. Court though by virtue of the Government Notification dated 10.07.2009, the powers of the Special Judge were taken away from him and the same were conferred on Smt. Thaly from the date she assumed charge.

Second. The applicant''s entitlement for bail has got to be considered as on the date of the application filed before this Court if not as on today, and not from the date it was filed before the N.D.P.S. Court that is to say 17.07.2009. This is not a Revision against the order dated 05.08.2009 of the learned Special Judge but a fresh application for bail, and, the contention that the application was already filed on 17.07.2009 before the Special Court that is to say before the remand of the accused was regularised by the Special Judge Smt. Thaly on 20.07.2009 is of no significance at all. This legal position can be spelt out at least from these decisions of the Apex Court relied upon by Shri Vaz, the Special Public Prosecutor.

14.1. In Ramesh Kumar Singh (supra) a writ petition was filed under Article 32 of the Constitution and the contention raised was that the accused was remanded without being produced in the Court on the dates fixed and that was a non-compliance of the mandatory provisions of the Code (Criminal Procedure Code, 1973). The Apex Court, therefore, held that on account of such non production and the detention having become illegal, the petitioner would not become entitle to be released on bail.

14.2. In the case of V.L. Rohlua (supra) the petition was filed for the release of the petitioner by a writ of habeas corpus. The Apex Court noted that the petitioner''s detention each time was slightly longer than 15 days but not so unconscionably long as to violate the spirit of the Code. There was a gap when the petitioner was in the custody of the Apex Court but no request was made for his release then. It was further noted that at the time of deciding the writ petition, that the petitioner was on a proper remand and in fact was remanded to the custody of the Magistrate by the Apex Court and thus the Apex Court concluded that they would not hold his detention to be illegal.

14.3. In the case of Pranab Chatterjee (supra) the petitioner had filed a writ petition, again under Article 32 of the Constitution, for his release from detention. The petitioner was arrested on 09.08.1970 u/s 151 of the Code and was not produced before the Magistrate within 24 hours nor he was informed of the ground of his arrest. It was, inter alia, contended that the petitioner was never produced before the Magistrate. The petitioner''s detention was attacked on two grounds. First, that the petitioner was not informed of the grounds of his arrest and hence there was violation of Article 22 (1) of the Constitution. The second ground of attack was that the petitioner after his arrest on 09.08.1970 was not produced before the Magistrate and hence there was again violation of Article 22 (2) of the Constitution. Regarding the second ground, the Apex Court held that the petitioner after his arrest on 09.08.1970 along with others was produced before the Sub-Divisional Officer and remanded to jail custody and therefore, it was clear that the petitioner was produced before the Magistrate within the period referred to in Section 61 of the Code and Article 22(2) of the Constitution. The Apex Court did not accept the plea of the petitioner that after his arrest he was never produced before the Magistrate and further held that the question as to whether he was produced before the Magistrate subsequently when further remand orders were passed has no bearing on this contention which is really based on Article 22(2) of the Constitution. Ultimately, the Apex Court held that:

It is true that on 25.08.1970, when thepetitioner was in custody in Case No.3(6) of 1970, there was actually no remand order in force. On that date, as we have already pointed out, the doctor had stated that the petitioner was sick and unfit to attend the Court. But in view of the fact that we have to consider the legality of the petitioner''s detention on the date when the return has been filed in this Court, that is, on 24.09.1970, the petitioner''s detention on that date cannot be considered to be illegal because he was kept in detention under proper orders of remand as an under-trial prisoner.

and therefore, the second contention was rejected.

14.4. The ratio of the above decisions is that if on the date of filing of the application or for that matter, even on the date of decision, the petitioner''s detention was in order, the previous infirmities like improper remand would not matter and because of that, an accused cannot be entitled for bail. Following the said principle, in the case at hand, it must be stated that the applicant has now been remanded by the learned Special Judge on 20.07.2009 and therefore, on 05.08.2009 (when his application was decided by the learned Special Judge as well as on the date of the application filed before this Court, the applicant''s detention was in order and, therefore, the applicant was not entitled to bail only on the ground that earlier his remand on 06.07.2009 was not in accordance with law. I have already concluded that the remand on 06.07.2009 was otherwise perfectly legal.

14.5. Shri D''souza has placed reliance on the case of Union of India v. Thamisharasi and ors. (1995 DC 129) and Uday Mohanlal Acharya Vs. State of Maharashtra, . Both the cases dealt with the grant of bail for default in terms of Section 167(2) of the Code. The first case was in relation to N.D.P.S. Act and it was held that the proviso to Sub Section (2) of Section 167 of the Code was applicable to the case under N.D.P.S. Act. This was prior to Section 36A of the Act, was substituted by Act 9 of 2001. Again, in the second case, the Apex Court held that the right of the accused to be released on bail u/s 167(2) of the Code was indefeasible and subsequent filing of the charge sheet did not extinguish the right accrued to the accused person to be released on bail. In my view, the applicant can derive no assistance from the aforesaid two cases.

On perusal of these paragraphs, it is apparent that the referring order proceeds on the basis that the views taken by the learned Single Judge in the cases of Suryakant More (supra), Daji Kamble (supra) and Sandeep Parab (supra) are conflicting and, therefore, the matter is referred to a Two Judge Bench.

The facts in the instant bail applications have also been noted in the referring order.

After perusal of the views of the learned Single Judges in the three orders referred to above, we are of the view that in Suryakant More''s case the learned Single Judge, with great respect, has stated the principle too broadly. The conclusion of the learned Single Judge is that an unauthorised detention by the Magistrate could not be cured even though it may be possible for the learned Additional Sessions Judge after taking cognizance of the offences to authorise the detention. Holding thus, the bail was granted. Pertinently, in Suryakant''s case as well, the position was that the applicants came to be produced before the Additional Sessions Judge, Greater Bombay on 17th July, 1989 and they came to be remanded since then, from time to time. The bail applications presented by them were rejected by the Additional Sessions Judge, holding that he was invested with the powers of the Special Court to be established u/s 36 of the NDPS Act by virtue of the provisions of Section 36D, as amended and that he was, therefore, competent to grant remand and hold the trial. With such factual background, we do no see how the learned Single Judge stated the law in the aforequoted wide terms.

It is clear that the arguments before us proceed on a little distinct factual background and namely, that the detention of the applicants by the Magistrate, on the basis of the remand order passed by him is not being challenged as vitiated. Before us, the factual argument is that the applicants were produced before an Additional Sessions Judge who was not a Judge of the Special Court within the meaning of Section 36 of the NDPS Act, yet, he was an Additional Sessions Judge without doubt. Further, it is not in doubt that the Special Court u/s 36 of the NDPS Act has to be presided over by a person who is a Sessions Judge or an Additional Sessions Judge. Yet, the view taken in Suryakant More''s case has been pressed into service. If that view taken by His Lordship Justice M.S. Deshpande is seen in the backdrop of the subsequent view taken by His Lordship in Daji Kamble''s case, it would be apparent from the paragraphs of Daji Kamble''s case reproduced by us above, that the very learned Single Judge did not reiterate the law in the broad terms as he did in Suryakant More''s case. In Daji Kamble''s case, he took the view that what happened was a procedural irregularity, to use his own words "The earlier unauthorised detention can not be invoked for the purposes of urging that what was authorised would also become invalid because of some previous irregularity by the Magistrate."

We are of view that the view taken by the very learned Single Judge in Daji Kamble''s case lays down the correct position in law.

Our reasons for this conclusion are that, firstly the concept of bail has to be understood in its proper perspective. In ordinary sense and as understood in Chapter XXXIII of the Code of Criminal Procedure, when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer incharge of a police station, or appears or is brought before a Court, he may be released on bail. As far as Section 436 is concerned, the right to claim bail granted by it in a bailable offence is an absolute and indefeasible right. The Hon''ble Supreme Court has held in the case of Rasiklal Vs. Kisore Wadhwani, that in a bailable offence there is no question of discretion in granting bail as the words of Section 436 are imperative. By amendment to the Code of Criminal Procedure, vide Amendment Act 25 of 2005, Section 436A has been brought in which provides for maximum period for which an undertrial prisoner can be detained. Section 437 provides for bail in case of an non-bailable offence, save and except, Section 438 wherein a person is apprehending arrest on accusation of having committed a non-bailable offence, may apply for bail. All this presupposes that bail may be taken when any person accused of or suspected of commission of any offence is arrested or detained without warrant by an officer incharge of a police station, or

As far as NDPS Act is concerned, the position is clarified by Section 37. That opens with a non-obstante clause and firstly makes every offence punishable under the NDPS Act to be cognizable and thereafter states that no person accused of an offence, punishable for the offences, as set out in Section 37(1)(b) shall be released on bail or on his own bond, unless the conditions prescribed therein are satisfied. In addition, there are limitations on grant of bail specified in clause (b) of sub-section (1) which are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

In Pragyna Singh Thakur (supra), the Hon''ble Supreme Court held that every detention cannot be held to be illegal. In para 63, this is what is held.

The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order

Therefore, it is clear that every detention in custody or arrest is not necessarily illegal and even where there is a violation of Article 22(2) of the Constitution of India, it is not as if in every case, the accused has to be set at liberty and released on bail. The Supreme Court has clarified that whereas an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order. Article 22 which grants protection against arrest and detention in certain cases envisages under sub-article (2) that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond that period without any authority of a magistrate. The detention with regard to the right of bail in the context of Article 22(2) by the Hon"ble Supreme Court is thus of great significance. If that article does not operate against a judicial order and bail cannot be granted if the detention is pursuant to a judicial order, then, by providing for release of a person on bail on account of a judicial order, which is vitiated by a patent illegality or irregularity, cannot be read in. Thus, the authorisation of the detention by a Magistrate or a Court of Law may be erroneous or illegal. However, that exercise will have to be challenged by way of appropriate proceedings before a superior Court. If the same is not challenged, it cannot be made a foundation or basis for seeking release on bail in every case and particularly the seriousness of the offences alleged and the punishment provided for them in law. If, as a general rule, it is laid down that an authorisation of the detention in custody by a Court of law, be it a Magistrate or a Sessions Judge, if found to be vitiated by illegality, must result in release of the detained person on bail, that would, with great respect, amount to reading something in the law, which is admittedly not provided. That would wipe out the distinction made by law in the Right to Bail of a person detained in custody for defaults by the Police/Prosecution and the power vested in a Court of law to either grant or refuse it. This underlying and fundamental distinction cannot be ignored by us. If we brush it aside, it would mean we confer a right of bail to every accused, including those proceeded under the NDPS Act or other stringent laws even if the law is silent on this crucial point. The result would be that there will be a collateral attack on an order of remand passed by a Court, in every application for bail. Such attack may be mounted anytime and at any stage.

If we read the right of bail and particularly in Section 37 of the NDPS Act in this manner, we would be inserting something in the statute which is specifically not provided for. By interpretation process we cannot do so. Once the exercise of power of remand by a Judge is not found to be vitiated by an irregularity, then, all the more the applicants, cannot as of right claim to be released on bail, when they are detained in custody for having committed offences punishable under the NDPS Act.

Therefore, we cannot subscribe to the view taken in Suryakant More''s case that the detention which was unauthorised could not be cured on the date on which the bail application was filed. The earlier, unauthorised and illegal detention can be cured in our opinion, if the subsequent orders remanding the accused are, otherwise, validly passed. In Suryakant More''s case, Daji Kamble''s case and Antonios Kaminis''s case the factual position is similar and common. The accused was produced before the Magistrate at the initial stage, may be his detention was authorised for the period which is in excess of what is permissible in law. In Suryakant More''s case, the exercise was made by a judicial order of the Magistrate. However, in all cases thereafter, the accused was produced and remanded to custody by Additional Sessions Judges. These Additional Sessions Judges may or may not be appointed as Judges of the Special Courts constituted by the Government u/s 36(1) of the NDPS Act, yet, they were exercising the powers and functioning as Sessions or Additional Sessions Judges. They could not be said to be usurpers in office.

It is apparent that going by the hierarchy of the Courts, as set out in Chapter II of the Code of Criminal Procedure, besides the High Courts and Courts, constituted under any law, other than the Code of Criminal Procedure, there shall be, in every State, the classes of Criminal Courts, specified by Section 6 of the Code of Criminal Procedure. The Courts of Sessions appears at serial No.(i) of Section 6. Sub-section (1) of Section 7 provides that every State shall be a sessions division or shall consist of sessions divisions, and every sessions division shall, for the purposes of the Criminal Procedure Code, be a district or consist of districts and proviso to Section 7 states that every metropolitan area shall, for the said purposes, be a separate sessions division and district. The powers to alter the limits or the number of such divisions and district is conferred on the State Government and has to be exercised in terms of Section 7 of the Code of Criminal Procedure, after consultation with the High Court. Equally, the State Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions. The sessions divisions, districts and sub-divisions existing in a State at the commencement of the Code of Criminal Procedure, shall be deemed to have been formed u/s 7.

Section 9 of the Code of Criminal Procedure states that for every sessions division, the State Government shall establish a Court of Session. Every Court of Session shall be presided over by a Judge, to be appointed by the High Court (see sec. 9(2)). Equally, the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Although heavy reliance is placed by Shri D''Souza on the decision of the Hon''ble Supreme Court in the case of Supreme Court Legal Aid Committee representing Under-trial Prisoners vs. Union of India, reported in 1994 SCC (6) SC 731, a careful perusal thereof would indicate that the Supreme Court has clarified that when a Judge demits office, the Court does not cease to exist. It is clarified that while the words ''court'' and ''Judge'' are frequently used interchangeably, they are not stricto sensu synonymous for the simple reason that a Judge by himself does not constitute a Court, being only an essential part of the Court. Since the authority to create courts is an attribute of sovereignty, the power can be exercised under the Constitution of India or under a constitutionally valid statute. Thus a Court may be complete in its organised aspects, with all these constituent elements of time, place and officers. That is true for the initial constitution only. But, thereafter, the Court will exist even if the Court is without a Judge by reason of the Judicial Officer having vacated office on resignation or retirement or removal or the like. The Hon''ble Supreme Court has stated that initially constitution of the Court under sub-sections (1) and (2) of Section 36 can be complete only after the requirements stipulated by it in paragraphs 12 and 14 of this decision are complied with.

Mr. D''Souza would argue that while taking this view, the Hon''ble Supreme Court has referred to Suryakant More''s case as well. However, we do not see how these observations can be seen dehors and torn from the context and particularly in paras 6 onwards. However, the Supreme Court has clearly held that the view taken in Bhagwan Singh vs. State of Orissa and ors., reported in (1992) II CCR 1237 has been preferred by another learned Single Judge of this Court Daud, J., and disagreed with the view taken by the learned Single Judge in Suryakant More (supra). After referring to the view of Daud, J., it then referred to the provisions of Code of Criminal Procedure which we have adverted to. The Hon''ble Supreme Court then took a survey of the provisions of the NDPS Act and the Amendment made to it in 1989. However, the conclusion of the Hon''ble Supreme Court with regard to the constitution of the Court u/s 36 of the NDPS Act would not support the argument of Shri D''Souza before us that the orders of remand passed by the Additional Sessions Judges in the peculiar facts of this case are wholly illegal and not just irregular.

We are of the view that if the earlier detention order was not authorised in the sense the Judge Shri P.V. Sawaikar not being the Special Judge, had no jurisdiction to grant any remand, still, when the applicants were produced before the duly appointed Special Judge and were remanded to custody by that Judge, the initial irregularity is cured. Assuming it that it can be termed as illegality, it is not of such nature as would wholly vitiate the detention, enabling them to seek bail only on that ground.

We are of the view that if such a view is not taken, then, that would enable all persons accused of the offences punishable under the NDPS Act to seek bail on a ground not provided by the NDPS Act. That would defeat the object and purpose of the NDPS Act and the intention of the legislature in making the stringent provisions so as to deal with the menace of drugs. It would also not subserve the public interest. Ultimately any view which would not subserve the object and purpose of the Act in question, has to be avoided.

In any case, whether in Antonios Kaminis or the present one, all that is complained of is that the initial detention by the Magistrate was authorised and permissible in law. Thereafter the production of the applicants not before the Special Court, but before an Additional Sessions Judge and his act of authorising the detention is vitiated. However, it cannot be lost sight of the fact that subsequent to such remand to custody each of these accused/applicants were produced before the duly appointed Judge of the Special Court who was exercising the powers under the Notification issued in terms of Section 36 of the NDPS Act. When each of the applicants were produced before such a Judge and he continued the order of remand, which orders of remand having not been challenged, we are of the view that the law laid down by the Hon''ble Supreme Court in Pragyna Singh Thakur (supra) would cover such a situation. Therefore, with greatest respect, we cannot subscribe to the view taken in Suryakant More''s case. We would rather prefer to accept the view taken by the very same learned Single Judge in Daji Kamble''s case and which was followed in Antonios Kaminis''s case by the Hon''ble Mr. Justice N.A. Britto.

However, while agreeing with Britto, J. in so far as the view on continued detention by subsequent legal and valid orders, we do not think that it was necessary for him to have gone into the aspect as to whether the entitlement of bail has got to be considered as on the date of the application filed before this Court and not on the date when he passed the order on the said application. Therefore, his observations from paragraphs 14.1 to 14.3 need not be referred to or considered by us. As far as that aspect is concerned, we are of the opinion that it may not be necessary for us to go into the same in the light of the view that we have taken.

Once the applicants have been remanded by a duly appointed Judge of the Special Court, then, the prior exercise even if it is assumed to be illegal, would not entitle them to seek bail even in cases under the NDPS Act. In other words, those arrested for having accused of commission of offences punishable under the NDPS Act, would not be entitled to seek bail on the ground that their earlier detention in custody was not authorised and does not get validated or cured by the subsequent legal and valid orders.

We are of the view that all this controversy could have been avoided had the Government of Goa taken note of the repeated communications from this Court. It has been brought to our notice that the Registrar of this Court, even as recently as on 9th May, 2011 took up the issue with the Secretary (Law), Government of Goa by addressing the following communication :

HIGH COURT OF BOMBAY AT GOA PANAJI, GOA NO : HCB/GOA/REG-204/2011 Dated : 9th May, 2011

From: Ku.I.K. Jain, Registrar, High Court of Bombay, Lyceum Complex, Altinho, Panaji - Goa.

To, The Secretary (Law), Government of Goa, Law Department (Estt.) Secretariat, Porvorim, Goa.

Reference : (i) Notification No. 2-9(1)86-LD-Estt, /225 dated 28/1/2011 issued by the Under Secretary (Law-Estt.)

(ii) Notification No.2-9(1)86-LD-Estt. 1808 dated 28/10/2010 issued by the Under Secretary (Law-Estt.)

(iii) Notification No.2-9(1)86-LD-Estt. /3099 dated 10/7/2009 issued by the Under Secretary (Law-Estt.).

Sir,

With reference to the above, I have to inform your goodself that at present there is only one court functioning as Special Court under Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 for the entire State of Goa. As the above notifications have been issued persona designeta various practical difficulties are being faced by the District Judiciary.

To overcome those difficulties the Hon''ble The Chief Justice of High Court of Bombay has directed this Registry to move the Government of Goa for issuance of notification conferring powers as Special Judge/s of Special Court/s under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 in the name of the Court/s.

May I therefore request you to move the Government and issue notification under sub-section (2) of Section 36 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 in super-session of the earlier notifications, in the name of

(i) Principal District & Sessions Judge, North Goa, Panaji.

(ii) District Judge - I & Additional Sessions Judge at Mapusa;

(iii) Principal District & Sessions Judge, South Goa.

(iv) District Judge - I & Additional Sessions Judge at Margao.

Yours faithfully, Sd/ (I.K. Jain) REGISTRAR. Encl : Copies of above referred notifications. Copy with respects to: The Hon''ble Registrar General, High Court, Appellate Side, BOMBAY - 400 032

Prior thereto, the Registrar sought directions from the Hon''ble the Chief Justice to permit the Registry to move the Government of Goa for issuance of a Notification conferring powers as Special Judge/s of Special Court/s under the NDPS Act in the name of the Court of the Principal District and Sessions Judge North and South Goa and District Judge-I and Additional Sessions Judge at Mapusa and Margao and after the Hon''ble the Chief Justice approved the submission and permitted the Registry to move the Government, that the aforesaid communication came to be addressed. However, despite the said communication from the Registrar, the Law Department, Government of Goa addressed the following communication to the Registrar General of this Court on 20th September, 2011.

"URGENT REMINDER

No.2-9(1)86-LD/Estt./7592 Government of Goa, Law Department (Estt.),

Secretariat, Porvorim-Goa.

Date : 20/09/2011

To, The Registrar General, High Court (Appellate Side), Bombay-400 032

Sir,

I am directed to forward herewith a copy of the letter bearing No.2-9(1)86-LD/Estt./1088 dated 27/06/2011 and to request you to place the proposal for nomination of a single Judge by name to the existing Court at Mapusa to try the cases under Narcotics Drugs and Psychotropic Substances Act, 1985 and also to nominate a substitute to deal the such cases under the above Act during the absence of the NDPS regular Judge before the Hon''ble Chief Justice.

Yours faithfully Sd/ (N.P. Signapurker) Under Sectary (Estt.)

Encl :-As above

Copy to :-

The Registrar, High Court of Bombay at Goa, Panaji.

Upon reading these communications, we feel that the situation has been complicated in the State of Goa by the Government itself. The Government could have acted upon the communications, as they took note of the legal provisions, so that a situation where a Judge presiding over the Special Court constituted u/s 36(1) of the NDPS Act proceeds on leave or being transferred or demiting office, could have been met and unnecessary controversy avoided. Even, now the State Government can take note of such requests from this Court and take corrective measures to remedy the situation. Technical lapses ought not result in a vacuum or a situation where there is no Judge within the meaning of Section 36 of the NDPS Act. As a result of the huge number of cases in the State of Goa, we are of the view that the Government would be well advised to take due cognizance of the request of this Court and act accordingly.

We are of the view that a Special Court under the NDPS Act has to be presided over by a Sessions Judge or an Additional Sessions Judge and only a person who is immediately before his appointment, as a Judge of a Special Court, a Sessions Judge or an Additional Sessions Judge alone can be appointed to man and preside over the Special Court under the NDPS Act. Once, factually it is undisputed that the Presiding Officers, namely Shri P.V. Sawaikar and prior thereto Shri B.P. Deshpande were both working and functioning as Additional Sessions Judges, they cannot be said to have wrongfully or illegally assumed the jurisdiction, far from usurping it. Therefore, at the most what has been done while authorising the detention of the applicants, is a commission of irregularity and it is capable of being cured by subsequent legal and valid acts. Once it has been so cured, then, in the instant case, nothing more be said.

In the view that we have taken, it is not necessary to decide any wider controversy and particularly, whether an illegal order which is wholly without jurisdiction and is, therefore, a nullity under which the detention is authorised, would not enable the person who is victim of the same, to seek bail. Even if an illegality is committed by a Court and its order is wholly without jurisdiction, still a person would have to languish in custody and we would be back to dark days of emergency is the apprehension of Shri D''Souza. We have only noted it. But, since we are not called upon to deal or decide the controversy, in such a situation, we deem it unnecessary to express any opinion on the same. However, we do not feel that the decisions of the Hon''ble Supreme Court on this point can be read as taking a view of the law as suggested by Shri D''Souza. All that the Supreme Court''s decisions hold is that the remedy of a person is to challenge such an order and in the absence of challenge, that illegality alone would not furnish a ground for release or a right to seek bail. Beyond that, these orders do not bring back the dark days as apprehended. Thus, a person aggrieved by such orders should seek the right remedy for that alone would give him the right relief.

As a result of the above discussion, and finding that the bail applications have not been referred to us, we direct that the same may be placed before the appropriate Court for being decided in the light of the law laid down in this decision. The reference is answered accordingly.