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Padmini Jesudurai, J.—The Senior Intelligence Officer, Directorate of Revenue Intelligence, T. Nagar, Madras- 17 has filed this application u/s 482 of the Code of Criminal Procedure for a direction to the Addl. Chief Metropolitan Magistrate, Economic Offences No. I and the Addl. Chief Metropolitan Magistrate No. II at Egmore, Madras to receive any further remand applications by him as a Central Government Prosecuting Agency in connection with the remand of the Respondent herein and any other cases in future under the Narcotic Drugs and Psychotropic Substances Act. 1985 (as amended).
In the affidavit sworn to in support of the petition it is stated that on 22.10,1992 on information, a car leading to Tuticorin, was intercepted and one Devarajan and one Selvam were found inside with 126 packets of opium. The opium was seized. Devarajan was arrested and remanded to judicial custody on 22.10.1992 at Tuticorin. The statement of Devarajan led to the search of the house of the Respondent in D. No. 6 Second Street, Zakkaria Colony, Kodambakkam, Madras- 24, and 126 packets of opium were seized from there. Ranganathan was arrested at 7 P.M. on 23.10.1992 for offences u/s 42(d) read with S. 51 of the Narcotic Drugs and Psychotropic Substances Act 1985 (as amended), hereinafter referred to as the act) for having committed offences punishable under Sections 29 and 21 of the Act for having contravened the provision to S. 8(c). Since the addl. Chief Metropolitan Magistrate, Economic Offences No. I and Economic Offences No. II were dealing with cases instituted by the Central Government, the former was contacted over phone through their Special Public prosecutor for producing the Respondents for remand u/s 167 of the Code of Criminal Procedure. It is stated that the learned Additional Chief Metropolitan magistrate, E.O. No. I directed the Petitioner to produce the Respondents before the Principal Sessions Judge was contracted over phone, the Petitioner was informed that the matter had to be attended to only by the Magistrates and since it was the holiday (that being a Saturday), the Petitioner had to approach the duty Magistrate, Another attempt was made to produce the Respondents for remand before the Addl. Chief Metropolitan Magistrate, E.O. I and when that attempt also filed, the Addl. Chief Metropolitan Magistrate B.O. II was approached and the learned Magistrate informed the Petitioner that remand matters in the month of October 1992 were being taken up by the learned Addl. Chief Metropolitan Magistrate E.O. No. I as per the duty roster and as such he was not in a position to remand the Respondents. Thereafter, the Respondent was taken to the Chief Metropolitan Magistrate, Egmore, Madras, who after he was informed about the happenings, ultimately perused the papers of remand and ordered remand of the Respondent.
The Petitioner had been driven in desperation from pillar to post, since the remand had to be made within 24 hours of arrest. The present application, therefore, is filed for a suitable direction tot he learned Addl. Chief Metropolitan Magistrate E.O. I, or E.O. II to take up remand matters in future in respect of arrests and made under the Act by the Central Government Agencies.
Since the Respondent is only a formal party and the direct is sought for only for future cases, no notice was sent tot he Respondent. To ascertain the views of the two learned Addl. Chief Metropolitan Magistrates, remarks were called for from them. Both of them have stated that their courts have been constituted as Special Courts, exclusively for trying economic offences, which are listed out in the notification and the present Act, not being one among the 12 Acts, they should not be expected to deal with remand cases under this Act. They expressed the view that it is either the learned Principal Sessions Judge, Madras, who in the absence of the Constitution of a Special Court under the Act is functioning as the trial court for these offences or the Judicial Magistrate, who as per the instructions of the Chief metropolitan Magistrate is attending to remand matters on holidays, who is required to deal with the initial remand of persons arrested under the Act.
The learned Public Prosecutor reiterating the averments made in the application, further submitted that the Petitioner has filed this application only to know where the accused arrested under the Act have to be taken for the initial remand u/s 167(2) of the Code of Criminal Procedure (the code for short) and any direction that this Court could give, would be followed by them, so that arrests made in these grave crimes, should not be set at naught by failure to get an initial remand within 24 hours.
S.36-A introduced to the Act by the amending Act 2 of 1989 is as follows:
36-A. Offences triable by Special Courts-(1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (1 of 1974),--
(a) all offences under this Act 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 on or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub S.(2) or Sub S.(2-A) of S. 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 on the whole where such Magistrate is a Judicial Magistrate and seven days on the whole where such Magistrate is an Executive Magistrate.
Provided that 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(2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon a perusal of police report of the facts constitutes an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial...
In Tamil Nadu, no special court as contemplated u/s 36-A(1)(a) has been constituted and at present in the City of Madras, it is only the Principal Sessions Judge, Madras, who has jurisdiction to try offences under the Act committed within the City of Madras. A combined reading of S. 36-A of the Act and S. 167 of the Code would show that the initial remand cannot be by the court having jurisdiction to try the case, namely the Principal Sessions Judge, but should be by the nearest Judicial Magistrate. This legal aspect has been clarified by a recent decision of this Court in P.R. Muthu v. State (1992 L.W. Crl. 134). The initial remand therefore, has to be by the Judicial Magistrate or by the Executive Magistrate, as the case may be, and not by the learned Sessions Judge, having jurisdiction to take cognizance of the case without committal and who alone is competent to try the case.
Having held that the Sessions Judge who has jurisdiction to try the cases under the Act, is not court to whom the accused has to be taken for the initial remand, let us now consider the position of the courts of the Additional Chief Metropolitan Magistrate Economic Offences I and Additional Chief Metropolital Economic Offences II (which courts will hereinafter be referred to as the court of E.O. I, and E.O. II). The view expressed by the learned Magistrates of the courts of E.O. I and E.O. II is that, they are Special Courts constituted exclusively to try economic offences and as such, they cannot be described as Judicial Magistrate within the meaning of S. 167(1) of the Code. Alongwith their reply, they have enclosed copies of the concerned Government Order contained the Notification under which these courts and a court at Madurai had been constituted, as well as an amendment to the Government Order describing which acts would come under the definition of ''economic offences''.
Under the Code, in areas other than metropolitan areas, courts are constituted and Magistrates empowered and territorial jurisdiction defined as laid down in Ss. 11 to 15, whereas the corresponding provisions relating to the constitution of courts, appointment of Magistrates, demarcation of territorial jurisdiction in Metropolitan areas are Ss. 16 to 19. In areas other than Metropolitan areas, S. 11(1) enables the State Government to establish, after consultation with the High Court, courts of Judicial Magistrate of the first class, for any local area or one or more special courts or Judicial Magistrates to try any particular case or particular class of cases, Section 11 further stipulates that, when such a Special Court is established, no other court of Magistrate in the local area, shall have jurisdiction to try any case or class or cases for the trial for which, such Special Court or Judicial Magistrate has been established.
The corresponding provision for Metropolitan areas is S. 16, which is as follows:
Courts or Metropolitan Magistrates - (1) In every metropolitan area there shall be established as many Courts of Metropolitan Magistrates, and as such places, as the State Government may, after consultation with the High Court, by notification, specify.
(2) The presiding officers of such courts shall be appointed by the High Court.
(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area.
S. 17(2) which provides for appointment of Additional Chief Metropolitan Magistrate is as follows:
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the power of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct.
S. 19 deals with the subordination of Metropolitan Magistrate and sub S. (3) is as follows:
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Addition Chief Metropolitan Magistrate.
Having referred to the provisions, relating to constitution of courts, a reading of the Government Order would make the nature of the court of E.O. I and E.O. II clear.G.O. Ms. No. 1293 of the Home Department dated 24.5.1982 issued by the Government of Tamil Nadu, under which the two courts had been constituted, shows that the Government accepted the recommendation of the High Court, Madras for the constitution of one Additional Court of Chief Judicial Magistrate at Madurai (in the cadre of the Sub Judge) and two Additional Metropolitan Magistrate (in the cadre of Chief Metropolitan Magistrate) in the City of Madras and sanction has been accorded to the post of Additional Chief Metropolitan Magistrates in Madras. The Notification issued under the Government Order, published in the Tamil Nadu Government Gazetted extracted below, would clarify the position.
The following notification will be published in the Tamil Nadu Government Gazette.
NOTIFICATION - I
In exercise of the powers conferred by the proviso to Sub-section (1) of S. 11 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974) the Governor of Tamil Nadu, after consultation with the High Court, Madras, hereby establishes a Special Court Judicial Magistrates of the first class at Madurai for the local area comprising the districts of Madurai, Ramanathapuram, Tirunelveli and Kanniyakumarai for trial of Economic offences.
NOTIFICATION II
In exercise of the powers conferred by sub S. (1) of S. 16 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Tamil Nadu, after consultation, with the High Court, Madras hereby establishes two courts of Metropolitan Magistrates at Madras.
It would also be relevant to extract the amendment tot he above Notification issued by the Government of Tamil Nadu in G.O. Ms. No. 446 Home (Courts. III) Department, dated 27. 2.1984, which is as follows:
Amendment
In the said Notification, after the expression "Economic offences" the following shall be added, namely:" covered under the following Central Acts:
The Central Excise and Salt Act, 1944 (Central Act I of 1944)
The Imports and Exports (Control) Act, 1947 (Central Act XVIII of 1947).
The Wealth Tax Act, 1957 (Central Act 27 of 1957)
The Income Tax Act, 1961 (Central Act 43 of 1961)
The Customs Act, 1962 (Central Act 52 of 1962)
The Gold (Control) Act, 1968 (Central Act of 1968)
The Foreign Exchange Regulation Act, 1973 (Central Act 46 of 1973)
The Companies (Profits) Sur-tax Act. 1964 (Central Act 7 of 1964)
The Gift Tax Act, 1958 (Central Act 18 of 1958)
The Export (Quality Control and Inspection Act, 1963 (Central Act 22 of 1963).
The Companies Act, 1956 (Central Act 1 of 1956)
The Monopolies and Restrictive Trade Practices Act, 1969 (Central Act 54 of 1969).
The Registrar, High Court is requested to issue instructions to the Chief Metropolitan Magistrate, Madras to distribute Economic offences cases pending or filed under various Acts to the two courts constituted under the G.O. Ms. No. 1293, Home, dated 24.5.1982 invoking the provisions under Sub-section (3) of S. 19 of the Criminal Procedure Code.
A reading of the Notification under which the courts had been constituted as well as the amendment would clearly show that, while the court at Madurai covered by Notification-I, issued u/s 11(1) of the Code, is a Special Court for the local area comprising the Districts of Madurai, Ramanathapuram, Tirunelveli and Kanniyakumari for trial of economic offences which are mentioned in the amendment, the courts of E.O. I and E.O. II, established by Notification No. II, which is issued u/s 16(1) of the Code are only two Additional Metropolitan Magistrate Courts and are not special courts constituted u/s 18 of the Code. While for the Special Court at Madurai, the Notification itself provides, as required u/s 11(1) of the Code, the Government to mention the class of cases they are to try, for the courts of E.O. I and E.O. II, because they are not Special Courts but are only Metropolitan Magistrates Courts, the Chief Metropolitan Magistrate is required to distribute economic offences to the two courts u/s 19(3) of the Code. This would clearly show that, the courts of E.O. I and E.O. II are established as Metropolitan Courts u/s 16(1) of the Code and not as Special Courts and S. 18, and the work allotted to them is only by the Chief Metropolitan Magistrate u/s 19(3) of the Code. The Courts of E.O. I and E.O. II are not Special Courts to try economic offences alone, but are only two more metropolitan magistrate, to which u/s 19(3), the chief metropolitan Magistrate allots economic offences for trial. Both the Magistrates of these Courts are, therefore, Judicial Magistrates within the meaning of S. 167(1) of the Code and under law, they are bound to receive remand prisoners and remand papers, if brought to them and they cannot refuse to receive remand papers and remand prisoners on the ground that they are Special Courts, constituted to try economic offences alone.
S. 57 of the Code prohibits detention in police custody of an accused beyond 24 hours without producing him before a Judicial Magistrate u/s 167(1). Both these provisions have been enacted in the larger interests of society, particularly in the interests of the accused. In order to prevent resort to third degree methods and illegal detention, there is an absolute mandate on the police officer to produce the accused before a Judicial Magistrate within 24 hours of the arrest. Police custody without a judicial remand, cannot exceed 24 hours. Such a safeguard is absolutely necessary. The Officer arresting the accused has to produce the accused to the Judicial Magistrate nearest to the place of arrest and not the Magistrate nearest to the place of the commission of the offence, irrespective of the fact whether that Magistrate has jurisdiction to try the offence or not. For better enforcement of this statutory requirement, S. (2-A) has been added to S. 167 providing for production of the accused before the nearest Executive Magistrate, where a Judicial Magistrate is not available. While so, keeping in mind that a Judicial remand is the only safeguard against frivolour arrests, illegal detention, resort to third degree methods and custodial violence, the Judicial Magistrates should undertake this responsibility of receiving remand papers and the accused, whenever they are presented to him. In the case of a regular police arrest, along with the remand report, there should be an F.I.R. and if the case is registered only on the arrest and recovery a seizure mahazar, while in the case of arrest by officers of different departments like Customs, Narcotic Intelligence Bureau, there would not be any F.I.R. and only seizure mahazars would accompany the remand report. Whatever be the material that is placed before the learned Magistrate, it is for him to decide whether there are grounds for believing that the involvement of the accused is well found to warrant remand of the accused. All Judicial Magistrates and in metropolitan areas, all Metropolitan Magistrates, whatever cadre they might be and in places where there are no such Magistrates, Executive Magistrates are bound to receive remand papers and the accused for dealing with them u/s 167 of the Code.
In the Metropolitan area of Madras, it is seen that the Chief Metropolitan Magistrate issues monthly turn duty roster for attending to remand work on holidays. This is a local arrangement made u/s 19(3) of the Code, which the police, as well as other departments making arrests, are bound to observe.
With these clarifications, this Criminal original petition is closed.