Full Judgment
Jasraj Chopra, J.
1. This habeas corpus petition has been filed by petitioners Chunnilal and Dalchand through one Madhs, who happens to be the brother-in-law looser of detenu Chunnilal and Dalchand, who were lodged in District Jail Chittorgarh in a case under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act').
2. It is alleged that the petitioners were arrested on 18.4.1990 and their arrest has been shown to have occured on 20.4.1990. The FIR No. 116/90 was registered against them in Police Station, Kapasan. They were produced before the Magistrate on 21.4.1990 and thereafter, they have been remanded to custody on different dated i.e. 30.4.1990, 2.5.1990, 16.5.1990, 30.5.1990, 12.6.1990, 26.6.1990, 10.7.1990 and 24.7.1990. On 10.7.1990 a challan was filed against them in the Court of the learned Chief Judicial Magistrate, Chittorgarh and thereafter, the case was committed to the court of learned Addl. Sessions Judge, Chittorgarh, who remanded them to custody. It was, however, felt that the learned Addl. Sessions Judge does not have the powers of Sessions Judge and, therefore, the learned Addl. Sessions Judge, Chittorgarh sent the case back to the court of learned Chief Judicial Magistrate, Chittorgarh for commitment to the authorised court and thereafter, the case was committed to the court of learned Sessions Judge, Pratapgarh.
3. It has been alleged that the Chief Judicial Magistrate has no power to remand the case for more than a period of 15 days. Even remand by the learned Addl. Sessions Judge, who does not happen to be the Sessions Judge, is also illegal. It was claimed that the provisions of Section 36A of the Act are mandatory in character and they do not envisage a commitment by the Court. The Special Judge who tries the case has powers to take direct cognizance and, therefore, on the basis of the principle of generalia specellous non derogant provisions of Section 36A of the Act will override the provisions of the Code of Criminal Procedure, 1973. Section 36A of the Act starts will non-obstante clause and, therefore, the detention of the petitioners is totally illegal and they deserve to be set at liberty. The provisions of Section 167(2) Cr.P.C. are subject to the provisions of Section 36A of the Act. It was, therefore, claimed that the case pending before the learned Addl. Sessions Judge Chittorgash arising out of FIR Case No. 116/90 of PS Kapasan may be quashed and the petitioners may be set at liberty.
4. A return has been filed on behalf of the State and it has been claimed that detention of the petitioners is not at all illegal. They were arrested on 20.4.1990 for an offence under Section 8/18 of the Act and thereafter, they were remanded to the judicial custody by the learned Chief Judicial Magistrate, who has all powers to remand them beyond the period of 15 days. The provisions of Section 36A of the Act are not conteadictory to the provisions of Section 167(2) Cr.P.C. The learned Addl. Sessions Judge has all powers to hear the case but still, he thought it fit to remand the case back to the Chief Judicial Magistrate and, therefore, the case has been committed to the learned Sessions Judge, who has already framed charges against the petitioners and the case has been fixed for recording evidence and thus, their custody cannot be treated as illegal.
5. Final arguments were heard and thereafter, the learned Public Prosecutor was directed to file copies of the order of remand and they have been filed when the case was listed under the head 'to be mentioned' on 16.4.1991. On that day, arguments were concluded.
6. We have heard Mr. M.D. Purohit, Mr. C.R. Joshi and Mr. Anand Purohit, the learned Counsel appearing for the petitioners and Mr. K.L. Jasmatiya, learned Addl. Advocate General for the State, and have carefully gone through the record of the case.
7. It was initially contended by Mr. C.R. Joshi, the learned Counsel appearing for the petitioners that it is for the detaining authority to prove that the detention is valid. The ground of detention has to be disclosed by the detaining authority and the burden lies on him to prove its validity. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in Lcchu Devi v. Union of India : [1981]1SCR640 , wherein it has been observed:
that whenever a petition for a writ of habeas corpus has come up before the Supreme Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. Once, the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards by the law have been scrupulously observed and the citizen is not deprived of his personal libearty otherwise than in accordance with law.
There is no quarrel about this principle that the detaining authority has to show that the detantion is illegal. In this case, it has been the consistent case of the detaining authority that the petitioners were arrested on 20.4.1990 in FIR case No. 116 of 1990 of PS Kapasan Under Section 8/18 of the Act. It was contended that the provisions of Section 36A of the Act which have been incorporated in the Act by an amendment in the year 1989 are mandatory in character and they override the provisions of Section 167(2) Cr.P.C. It was also contended that according to Section 36A of the Act, the Chief Judicial Magistrate has no power to grant any remand beyond 15 days. It was further contended that the provisions of the Act as they stand today do not contemplate commitment of a case. A direct cognizance can be taken by the Special Judge and he can grant remand under Section 167(2) Cr.P.C. In this respect, reliance has been placed on a decision of their lordships of the Supreme Court in AR Antulay v. R.S. Mayak : 1984 CriLJ647 , wherein it has been held that the Sessions Judge has powers to grant remand beyond 15 days Mr. Jasmatiya commitment of the case is not rule out in such matters. The provisions of Section 36A of the Act will override the provisions of the Code of Criminal Procedure, 1973 only to the extent the provisions of Cr.P.C. are inconsistent with the prossions of the Act. If they are not in consistent and a harmonious interpretation is povisible then they will also prevail. Actually, these contentions which have been raised in this case are fully covered by a decision of this Court in Alimuddin and Ors. v. The State of Raj. 1991 Cr.L.R. (Raj.) 57 and no different view from the one which has been taken by a Division Bench of this Court in Allimudeen's case is possible. The illegality of the detention has to be examined from the date, the return has been filed on behalf of the State. In this case, return has been has been filed by the State on 12.3.1991. Before that, the case has already been committed to the court of learned Sessions Judge, Pratapgarh and a remand has also been granted by the competent court and, therefore, that is the crucial date which will have to be taken into consideration for deciding the fact as regards illegal detention of the petitioners. This point has also been dealt with in the aforesaid Division Bench case.
8. Consequently, even on that score, the petitioners have no case to argue before us because on the date when return was filed, their detention in custody was perfactly justified as it was under the orders of a competent court. Presently, we are not required to deal with this aspect of the matter as to whether the learned Addl. Sessions Judge was competent to entertain this case after commitment or not because for decision of this controvers, as to whether the detention of the petitioners is illegal on not, the crucial date which has to be taken into consideration is the date when the return has been filed by the State and the consideration of legality of the earlier remand orders which have been granted by the learned Chief Judicial Magistrate and Addl. Sessions Judge will become academic in nature. In this case, a chargesheet has been framed against the petitioners and trial is also proceeding now under the orders of the learned Sessions Judge and, therefore, the detention of the petitioners cannot be held to be illegal. We need not deal with all the submissions made by Mr. Joshi in detail as they are covered by a Division Bench decision of this Court in Alimudeen's case (supra).
9. Mr. Joshi has placed reliance on a decision of the Bombay High Court in Suryakant Ramdas More v. State of Maharashtra 1989 Cr.L.J. 242. That case was also cited before the Division Bench of this Court of this Court in Alimudeen's case (supra) and that has been distinguished and, therefore, this case also cannot come to the rescue of the petitioners. It is nobody's case that the petitioners should be thrown out on the basis of an alternative remedy.
10. Certain authorities have been cited as regards interpretation of the Statutes. That point need not be gone in to in detail because the Division Bench of this Court in Alimudeen's case (supra) has already taken care of the interpretation of Section 36A of the Act.
11. In the result, this habeas corpus petition has no force and it is hereby dismissed.