Banka Das, Vs. State of Orissa - Court Judgment

A. Pasayat, J.

1. Even before the ink in certain judgments has become dry, divergence of view has surfaced and doubt regarding their correctness has arisen, relating to certain provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Though only one question was referred to the Full Bench for adjudication, members of the Bar pleaded that several other questions need a fresh look, and therefore, we have primarily considered the following questions :

(1) Whether a Court of Session can, during transitional period as provided in Section 36-D of the Act take cognisance of an offence under the Act as a Court of original jurisdiction without the accused being committed to it for trial ?

(2) Whether a remand beyond a period of fifteen days as indicated in Section 36-A(1)(b) is permissible ?

(3) Whether the conditions in Section 37 of the Act relating to giant of bail override the effect of the proviso to Section 167(2) of the Code of Criminal Procedure, 1973 (in short, the 'Code'), and/or whether the said proviso to Section 167(2) of the Code has no application to an accused under the Act ?

(4) Whether the procedures prescribed in Sections 42, 43, 44, 49, 50 and 57 are mandatory in nature and any non-compliance of the requirements contained therein renders the proceeding vitiated ?

(5) Whether the compliance or otherwise aspect of the requirements under the sections indicated at question (4) can be considered at the time of considering a bail application ?

(6) Whether an officer duly authorised Under Section 42, who intends to search any person Under Sections 42, 43 and 44 of the Act, is required to inform the person concerned that if he so desires he is to be taken to the nearest gazetted officer or a Magistrate as provided Under Section 50(1) of the Act ?

(7) Whether power Under Section 482 of the Code can be exercised during investigation of an offence under the Act, or while dealing with a bail application ?

2. Only the first question has been referred to the Full Bench because a Division Bench, while considering the reference made by a learned Single Judge in respect of the cases under consideration, did not agree with the view expressed by another Division Bench of this Court in Bhagwan Singh and etc. v. State of Orissa and Ors. : (1992) 5 OCR 107. So far as some other questions are concerned, the referring Division Bench did not accept the view expressed by som eleanerd Single Judges of this Court. In the ordinary course, therefore, the view of the Division Bench would have prevailed and in the absence of a reference in respect of those questions it would not have been necessary for us to delve into the matter. But in view of the circumstances indicated above, we have taken up the questions enumerated above for a detailed analysis.

3. Before grappling with the problems posed before us, it is necessary to look into the legislative history of the Act, From a conspectus of the provisions and the objects of enactment, it is clear that the statute was enacted to provide stringent provisions for control and regulation of operation relating to Narcotic Drugs and Psychotropic Substances. The intention of the legislature to make the provisions stringent and to thwart attempts by the accused to slip throug the loopholes is apparent from Act 2 of 1989 coming into force with effect from 29-5-1989 which inter alia substituted Section 37. The object of enactment of Section 37 is to restrict grant of bail in certain specified cases, which the legislature thought to be grievous in nature. The offences are non-bailable by virtue of level of punishments. But on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Act, the need to amend law to further strengthen it was felt necessary. Restrictions were put by the legislature on grant of bail relating to offences which carry punishment of five years or more.

4. Statutes imposing fine, penalty and punishment are to be strictly construed. For a penalty to be enforced, it must be clear that the case is within the Setter and spirit of statute. [See M/s. Glaxo Laboratories (India) Ltd. v. Presiding Officer, Labour Court, Meerut and Ors. : AIR 1984 SC 505]. However, the language of the Parliament though not to be extended beyond its fair construction, is not to be interpreted in so slavishly a literal way as to stultify manifest purpose of the legislature. [See Comet Radiovision Services Ltd., v. Farnell Tandberg Ltd. and Ors. ); (1971) 3 All England Reporter 230]. The intention of the legislature must be given effect to as expressed in the language of provisions. Where, however, usual meaning of language falls short of the whole object of the legislature, a more extended meaning may be given to the words, if they are fairly suscoptible of it (See Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal ; AIR 1983 SC 537). In other words, interpretation would be such as would advance intendment and thwart mischief, and to keep path of access of justice through Court unobstructed. (See Cotton Corporation of India Limited v. United Industrial Bank Limited : AIR 1983 SC 1272).

Francis Bennion in 'Statutory Interpretation'(1984 Edition) has observed as follows :

'Unnecessary technicality : Modern Courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfilment of the purpose of the legislation.'

When the language of the statute leads to manifest contreidction of the apparent purpose of the enactment, the Court can of course adopt a construction which will carry out the obvious intention of the legislature. In doing so a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases' Per Deenning L. J. in Seaford Court Estates v. Asher : (1949) 2 All E. R. 155. The view was approved by the Supreme Court in P. K. Unni v. Nirmala industries and Ors. : AIR 1990 SC 933. It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly. (See M. Pentiah v. Muddala Veeramallappa : AIR 1961 SC 1107 : American Home Products Corporation v. Mac Laboratories Pvt. Ltd : AIR 1986 SC 137). The primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the said rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written words if necessary. (See M/s. Girdhari Lal and Sons v. Balbir Nath Mathur and Ors. : AIR 1986 SC 1499). Seeking legislative intention. Judges not only listen to the voice of the legislature, but listen attentively to what legislature does not. say. When construing statutes enacted in the national interest, we nave necessarily to take broad factual situations contemplated by the Act and interpret its provision so as to advance and not to thwart the particular national interest whose advancement is proposed by the legislation. (See Life Insurance Corporation of India v. Escorts Ltd. and Ors.; AIR 1986 SC 1370).

5. Keeping these aspects in view, I shall first deal with the inter-related questions (4) to (6), and consequentially question (7).

The plea of the learned counsel appearing for the accused persons is that the procedures relating to search, seizure and arrest are embodied in various provisions of Chapter V (Sections 41 to 58) of the Act Sections 41, 42, 43,45, 50 and 57 obligate the concerned officials to follow certain procedures. Where the procedural formalities are not .observed, the proceedings are vitiated as according to them the prescriptions are mandatory. It is trite law that mere procedural infirmity in the search and seizure would not by itself be sufficient to vitiate the conviction, and the same cannot be assailed if recovery of prohibited articles is proved, and no prejudice is established. It is always to be determined as a fact to be considered in the light of the circumstances as to whether prejudice was caused to the accused because of non-compliance with certain requirements. As observed by the Supreme Court in Radha Kishan v. State of Uttar Pradesh : AIR 1963 SC 822, and Kandu Sonu Dhobi v. The State of Maharashtra : AIR 1972 SC 958. even if certain statutory provisions are not complied with before effecting the seizure, that does not become invalid on that score alone. Non-compliance with the provisions of the sections under reference would not ipso facto be fatal to the prosecution. These provisions are intended to rule out the possibility of haphazard attempts by the police official against unmerited prosecutions. Any deficiency in the collection of materials cannot affect the trial and conviction unless prejudice or failure of justice is the resultant.

6. Effective enforcement of the law in a democracy is based on an equitable balance between the rights of the individual and the welfare of society. The individual relinquishes a portion of his personal prerogatives through the legislative process in order that he and his fellow-citizens may be free from criminal activities,. Through this process, the officer is authorised under appropriate circumstances, to. invade personal privacy, to restrict individual liberty, and to require disclosure of information. Thus, law enforcement depends upon legally sanctioned interference with individual rights. Every citizen has a vital interest in preserving a reasonable relationship with individual liberties and law enforcement in view of the intolerable alternatives which are possible. If the officer has unrestrained authority to ignore persona! liberties, the product is a police State: if he is barred from any interference with private rights, the result is criminal anarchy. In order to avert these ative perils and their intermediate gradations, it is responsibility of the Judge and the law maker to establish rules for la .enforcement which will give society maximum protection from the criminal with a minimum of interference with individual liberties.

The question whether the procedures prescribed have been followed is a matter for trial. There is substance in the plea of the learned counsel appearing for the petitioners that these procedures are Said down to rule out malicious and/or unmerited prosecutions. These are duties to be performed and therefore, are directory in nature so far as the trial and conviction are concerned. The mandate is on the, officials who are to do the prescribed acts in the prescribed manner. To that extent it is mandatory. Whether in fact the designated officer has acted in a particular manner is to be gone into at the time of trial, and it is open to an accused to raise the question that prescribed procedures were not followed. If such a point is raised by the accused, the Court shall decide the effect of such inaction and prejudice, If any caused thereby to the accused. These inactions are open to be highlighted while an application for bail Is moved. The same shall, however, be considered in the background of the prohibition contained in Section 37 of the Act. There is, however, a cleavage of opinion so far as Sub-section (1) of Section 50 is concerned. One view is that the officer duly authorised Under Section 42 is obligated to inform the person whom he intends to search that if he desires he shall be taken without unnecessary delay to the nearest Gazetted Officer of the Department Under Section 42 or to the nearest Magistrate. This view has been expressed by two learned Single Judges of this Court in Bidyadhar Dalai v. The State : (1992) 5 OCR 31, and Satyabrat @Sarat Mallia and Anr. v. State ; 1991(II) OLR 475. Contrary view has, however, been expressed by another learned Single Judge in Criminal Misc. Case No. 271 of 1992 (Bula Sethi and Anr. v. State disposed of on 10-3-1992, and a Division Bench of this Court in the referring judgment. In the two reported cases referred to supra, the learned Judges were of the view that a duty is cast on the officer to inform the accused before the search is conducted that if he desires, he shall be taken to the nearest Gazetted Officer prescribed, or to the nearest Magistrate. A close reading of the provision makes it clear that in all cases it is not necessary to take the person to the Gazetted Officer or Magistrate, as the case may be. it is only when the person to be searched so requires, he has to be taken. The prerequisite for taking the person to be serched is the requisition of the person concerned. Sub-section (1) of Section 50 does not cast any obligation on the concerned official to inform the person to be searched- that he has the option of making a requisition to be taken before the Gazetted Officer or the Magistrate. The provision is in pari materia with Section 102(1) of the Customs Act, 1962 and Section 19A of the Foreign Exchange Regulation Act, 1947. The plea that a person must be made aware of his rights has no substance. There are many instances where the legislature has specifically provided for such intimation. We may refer to Section 130 of the Army Act, 1950, which clearly provides that a person is to be informed that he has the right to object to the composition of Presiding Officer or the members. He has to be asked whether he objects to be tried by any official sitting in Court. Reference may also be made to Section 50(2) of the Act. It provides that where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties The right to bail for a bailable offence comes from the definition in Section 2(a) Bailable offence is an offence where bail can be claimed as of right. It is a matter of course, the only condition being that the accused must be prepared to give bail i e., to furnish surety. Notwithstanding such untrammelled right, legislature specifically obligates the police officer to inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties. Reliance has been placed on a decision of the Supreme Court in Suk Das and Anr. v. Union Territory of Arunachal Pradesh : AIR 1986 SC 991, where it was held that a person must be told by the Magistrate or the Court that he has a right to free legal service at the cost of the Stale. The backdrop in which the decision was rendered is markedly different and the observations in that case have no application to the facts of the present case. The decision was rendered considering right of persons living below poverty line and acute illiteracy. Persons entitled to legal aid cannot be equated with death merchants dealing with narcotic drugs and psycho- tropic substances. A person who is unable to engage a lawyer on his behalf on account of poverty or indigence is ;not to be equated with a person indulging in narcotic drugs and psychotropic substances trade. In the absence of any stipulation in Section 60(1) of the Act, the concerned official has no duty to inform the person that if he desires he may be brought before the nearest Magistrate or the Gazetted Officer, as the case may be. Even if such information has not been given, there is no infrature. The obligation arises only when the person so requires.

It was argued with vehemence that where there is infraction of the requirements of Section 50(1), the detention becomes unauthorised and can be interfered with by exercise of power Under Section 482 of the Code. This question has become academic in view of the conclusion above.

7. I may point out that unless there is no material whatsoever to show that cognizable offence has been disclosed by the materials on record in their entirety, exercise of power Under Section 482 of the Code would not be permissible. It need be pointed out that there is no scope for grant of bail where detention has become illegal on account of expiry of the period of remand or any illegality in the order of remand. [See Durei Behera v. Suratha Behera and Anr.] : 1986 (I) OLR 536. As abserved by the Supreme Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. : AIR 1992 SC 604, the extraordinary power under Art. 226 of the Constitution of India and/or the inherent power Under Section 482 of the Code can be exercised either to prevent abuse of the process of any Court or otherwise to secure ends of justice. It not possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. But it has to be borne in mind that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the first- information report or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. To interfere Under Section 482 of the Code while dealing with a bail application to quash arrest and detention, though not impermissible should be done in exceptional cases. It has to be kept in mind that Section 37 puts embargo on grant of bail of an accused under the Act. If that be so, would exercise of jurisdiction Under Section 432 to quash detention be desirable on the ground that there is infraction of some statutory provisions. It is stressed that Art. 21 prohibits detention without due authority of law. True it is, it can be urged that there has been infraction of some statutory protection. But it would not be desirable for the Court a make a threadbare analysis of the respective cases because they may ultimately affect the trial. Where however there is unrebutted acceptance by the prosecutor that a particular procedure intended to safeguard the personal liberty of a person is affected, interference is to be made. If, however, there is denial of the allegations of infraction, the Court should not embark upon an elaborate enquiry and evaluation of the respective stands. That may prejudicially affect trial, and would not subserve the interest of justice. In a case where the order of detention was challenged before execution thereof, this Court in Padma Kumar Bhawsinka v. State of Orissa, represented through the Secretary, Food and Civil Supplies Department, Bhubaneswar and Ors. : 1991 (I) OLR 527 held that in appropriate cases it is open to the State not to disclose materials if disclosure would be against public interest. Reliance was placed, to buttress the view, on a decision of the apex Court in The Additional Secretary to Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. : (1990) 2 SCALE 1352. It was held in the last mentioned two cases that though an order of detention can be assailed even at a preexecution stage, the detenu cannot demand either disclosure of the grounds of detention to him or to look at the order of detention. In the light of the view expressed, clinical dissection of rival stands and/or materials pressed into service therefore, when infraction of procedural safeguards is alleged, is impermissible and unwarranted.

8. It is to be borne in mind that while exercising power under Sec 482 to set at naught any investigation, the Court should be satisfied that the accusations made against the accused are frivolous and there is no material to proceed against him. The evidence is yet to be taken and the aspects which accused terms vulnerable, can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witnesses in Court. It would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case, without affording reasonable opportunity to prosecution to substantiate the allegations. (See Eastern Spinning Mills and Virender Kurnar Sharda v. Rajiv Poddar : AIR 1985 SC 1668 and State of Bihar v. Raj Narain Singh : AIR 1991 SC 1308).

9. Coming to the questions (2) and (3) relating to the applicability of Section 167(2) of the Code and the maximum period of remand permissible, a reference to Section 36-A of the Act is necessary. Sub-section (1) thereof begins with a non obstante clause. Clauses (b) and(c) are relevant for our purpose. Clause (b) postulates that where a person accused of or suspected of the commission of an offence under the Act is forwarded to a Magistrate under Sub-section (2) or Sub-section (2-A) of Section 167 of the Code, 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 or seven days in the whole depending upon where the Magistrate is a Judicial Magistrate or an Executive Magistrate. The proviso to the clause indicates that where the detention of such person is felt unnecessary, the Magistrate shall forward such person to the Special Court having jurisdiction. Clause (c) postulates that the Special Court exercises power similar to that exercised by a Magistrate having jurisdiction to try a case Under Section 167 of the Code in relation to the person forwarded to it under Clause (b), A combined reading of the provisions makes it clear that Clause (c) comes into operation where a person is forwarded to the Special Court by a Magistrate who considers the detention of a person unnecessary. The difficulty arises when the Magistrate feels that the detention is necessary. In my opinion, the words 'fifteen days in the whole' or 'seven days in the whole' occurring in. Section 36-A(1)(b) would tantamount to a period of 'fifteen (seven) days at a time' but subject to the condition that if the accused is to be remanded to police custody, the remand should be for such period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed fifteen days. Where an accused is placed in police custody for the maximum period of fifteen days allowed under law either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted has to be necessarily to judicial custody and not otherwise. The legislature while providing that an accused shall be placed under police custody under orders, of remand for effective investigation of cases has not been oblivious of the fact that interests of the accused are also to be protected and he is not being placed, under police custody beyond a total period of fifteen days under any circumstances, irrespective of the gravity of the offence or the serious nature of the case. Therefore, by implication the Magistrate can direct judicial custody beyond a period of fifteen days. To sum up, a person arrested for an offence under the Act can be produced before a Judicial Magistrate, who can remand the accused to custody of investigating agency for a total period of fifteen days, and such Magistrate can remand the accused to judicial custody from time to time but each time it shall not exceed fifteen days. This view of mine gains sustenance from a decision of the apex Court in Chaganti Satyanarayan and Ors. v. State of Andhra Pradesh : MR 1986 SC 2130.

10. Further question that emerges is the total period up to which the remand can be made to judicial custody. Relying on the proviso to Section 167(2), it is stated that such period shall not exceed 60 days or 90 days in total, considering the nature of the offence and the maximum punishment attached thereto. Clause (c) of Section 36-A(1) provides that a Special Court may exercise, in relation to the person forwarded to it, the same power as exercised by a Magistrate Under Section 167. It can, therefore, safely be said that the total period of remand to Judicial custody shall be 60 days or 90 days depending on the nature of the offence and the maximum punishment attached thereto.

11. It is pleaded by the learned counsel for accused persons that after expiry of the maximum period of remand as can be authorised by the Special Court or the Magistrate, the accused becomes entitled to be released on bail as provided under the proviso to Section 167(2) of the Code. This argument overlooks the prohibition contained in Section 37. Section 167(2) proviso of the Code is subject to Section 37 of the Act, which also open with a non-obstante clause excepting all provisions of bail contained in the Code and making it clear that a person shall not be released on bail unless the conditions stipulated are satisfied. Therefore, even if by operation of Section 167(2) proviso, an accused becomes entitled to bail, yet he shall not be released on bail until the Court is further satisfied that the conditions stipulated in Section 37 are satisfied. Section 37 of the Act overrides Section 167(2) of the Code because it is a special statute. An ancillary question also arises relating to grant of bail, when the Magistrate comes to the conclusion that the detention of a person is unnecessary; but it when the accused person is forwarded to him in terms of Section 167(2) or upon or at any time before the expiry of the period of detention authorised by him. In such an event also he is required to forward such person to the Special Court having jurisdiction, but he cannot release the person on bail unless the person is able to satisfy that the conditions stipulated in Section 37 are satisfied.

12. The last question which needs consideration is the one that has been referred to this Court. In Bhagwan Singh's case (supra) it was held that during the transitional period as prescribed in Section 36-D, the Sessions Judge is not entitled to take cognizance of the offence without there, being a commitment. The correctness of the view has been doubted in the referring judgment. Section 36-A(1)(d) provides that a Special Court may take cognisance of an offence under the Act without the accused being committed to it for trial. Regarding the power of the Special Court to take cognizance, it has to be noticed that a Court of Special Judge is a Court of original criminal jurisdiction. That being so, in order to make it functionally oriented some powers are conferred. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide found by the terminological status description or Magistrate or a Court of Session. It enjoys all powers which a Court of original jurisdiction enjoys save and except the ones specifically denied.

13. There is no statutory definition of the word' cognizance'. It has no esoteric or mystic significance in criminal law. It means judicially aware of. When used with reference to Court or Judge, it means to take notice judicially. It does not involve any format action; or indeed action of any kind, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. The core question is whether the Sessions Judges who is empowered Under Section 36-D of the Act is entitled to take cognizance of an offence without there being a committal proceeding , The provision is a transitional one and it mandates that until Special Court is constituted, any offence committed under the Act shall be tried by the Court of Session.

14. The stand of the petitioner primarily is that what is permissible to be done by the Court of Session is a 'trial', and therefore taking cognizance of the offence is not encompassed. In order to appreciate correctness of the submission, the object for which the statute has been enacted has to be kept in mind. The purpose and object of the enactment of the Act is to have a speedy trial of all offences thereunder. That is why the Special Courts are allowed to take cognizance of the offence, without there being a committal proceeding. The Court of Session empowered to try the case during the transitional period should be deemed to be a Special Court having power Under Section 36-A(1)(d) of the Act to take cocnizance of the police report or upon a complaint made by an officer of the Central or State Government. Section 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the Act.

15. It may be relevant here to refer to Sub-Sections (1) and (2) of Section 4 and Section 5 of the Code. Sub-section (1) of Section 4 provides that all offences under the Indian Penal Code, 1860 (in short, IPC) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Sub-section (2) of the said section carves out an exception that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The saving provisions in Section 5 lay down that ordinarily the Code will not affect any special law; any local law; any special jurisdiction or power; and any special form of procedure. Section 41, IPC states what a 'special law' is. It means a law applicable to a particular subject. Therefore, on a plain reading of the preamble appended to the Act, it is clear that the same is a special law. As indicated supra, Section 36-A begins with a non-obstante clause and indicates that the procedure contemplated in the Code for the trial of offences under the Act is not at all applicable and the procedure contemplate by the section for the trial of the cases under the Act alone is applicable.

The first schedule attached to the Code categorises the offence into two categories. The first category relates to offences under the Indian Penal Code, while the second category relates to classification of offences under other laws. A reading of Section 193 of the Code makes it clear that there are plausibilities or possibilities of a 'Court of Session taking cognizance of any offence as a Court of original jurisdiction, even in the absence of commitment by a Magistrate, and such legislative intention is called out from the usage of the expression: 'Except as otherwise expressly provided by this Court or by any other law for time being in force...' Such a situation arises in case of trial of an offence by a Court of Session under other laws. Section 209 of the Code prescribes that irrespective of the fact that a case is instituted on a police report or otherwise, there has to be commitment of a case to Court of Session, when offence is exclusively triable by it. The non- obstante clause in Section 36-D is a reflection of the statutory intent that not withstanding anything contained in the Code, a trial before a Court of Session which otherwise could not have proceeded without there being a commitment is not contemplated for trial of offenders in the Act In the Court of Session. Reference to Section 36-B and 36-C also indicates that a Court of Session is put on par, for all practical purposes, with the Special Court constituted under the Act, and is a substitute for the Special -Court during the transitional period. Sub-section (2) of Section 36-D also throws some light, it provides that where cognizance has been taken by a Court of Session under Sub-section(1) of the section, the cases shall be heard and disputed by it without being transferred to a Special Court. The Kerala and the Madras High Courts have taken the view similar to the one indicated by me. (See in the matter of State Circle Inspector of Excise, Cannur, and Ors. , etc: 1992 Crl. L.J. 570; and P.R. Muthu v. State : 1992 (1) Crimes 1038). Provisions of Section 36-D point out apparently the legislative intent that trial of offenders under the Act is to proceed by the Court of Session, notwithstanding anything contained in the Code. A trial under the Code cannot be undertaken by the Court of Session without there being a commitment. In order to indicate that such procedure is not contemplated during the transitional period also the non-obstante clause has been suffixed. The non-insertion of each clause at the beginning of the section is also significant and cannot be said to be without purpose. The avowed object of the Act is speedy trial of the offenders under the Act. The interpretation makes the pro-visions of Section 36-D more meaningful and is in consonance with the objects of enactment of the statute. The irresistible conclusion is that there is no need for commitment for the Court of Session to take cognizance of the offences committed under the Act. The contrary view expressed by the Division Bench in Bhagwan Singh's case (supra) is not correct.

The reference is accepted, and the points formulated are accordingly answered.

G. B. PATTNAIK, J.

16. I agree fully with brother Pasayat, J. But in view of the importance of the point involved and in view of the fact that there has been slight inaccuracy with regard to the observations made by me in respect of the judgment of the learned Single Judge in the order of reference, I think it appropriate to add a few words to the judgment of brother Pasayat, J.

17. While hearing the four criminal cases sitting with brother D. M. Patnaik, J. we had considered the correctness of three decisions of this Court, two of them being delivered by brother Rath, J. in Sauti Jena and Anr. v. State, (1991) 4 OCR 276) and Bidyadhar Dolai etc. v. The State, (1992) 5 OCR 31) and the other being delivered by Hon'ble K. C. Jagadeb Roy, J. in Criminal Misc. Case No, 1196 of 1991 (Satyabrata alias Sarat Mallia and Anr. v. State) reported in 73 (1992) C.L.T. 726, and we came to the conclusion that the aforesaid three decisions had not been correctly decided. I do not propose to reiterate the grounds on which we came to the conclusion that the aforesaid decisions had not been correctly decided, but I would like to point out the inaccuracy that has crept in our judgment earlier while referring the matter to larger Bench.

18. The decision of Hon'ble L Rath, J. reported in (1992) 5 OCR 31 is in respect of two cases, Criminal Misc. Case No. 1052/91 (Bidyadhar Dolai v. The State) and Criminal Misc. Case No. 1227/91 (Ghanashyam Behera v. State of Orissa), bu unfortunately at one place of our judgment, it has been stated as 'Ghanashyam Behera v. State of Orissa' instead of 'Bidyadhar Dolai etc. v. The State'. Further while considering the correctness of this decision of Hon'ble 1. Rath, J. we correctly recorded :

'.......In our considered opinion, therefore, the learned Single Judge was not entitled to quash the arrest and detention by invoking his jurisdiction Under Section 482 of the Code......'

but just in the previous sentence, it was indicated that the Court would be transgressing its limit if it quashes the criminal proceeding. Obviously the criminal proceeding has not been quashed by the learned Single Judge in Bidyadhar Dolai's case and, therefore, the aforesaid expression in our earlier judgment is inaccurate. None the less, our ultimate conclusion that the learned Single Judge was not entitled to quash the arrest and detention by invoking his jurisdiction Under Section 482 of the Code' is not affected in any manner.

19. In our system of judicial administration, precedent enunciate rules of Saw and from the foundation of administration of justice. It has been held time and again that a Single Judge of a High Court is ordinarily bound to accept as correct the judgments of Courts of coordinate jurisdiction and of Division Benches. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in law. In view of our earlier conclusion that the decisions of Hon'ble L. Rath, J. in Sauti Jena's case (1991) 4 OCR 276) and Bidyadhar Dolai's case (1992) 5 OCR 31) and the decision of Hon'ble K. C. Jagadeb Roy, J, In Satyabrata's case (73 (1982) C.L.T. 726) are not correctly decided, it was not necessary for the Full Bench to consider the said question particularly when the Division Bench has referred only the question of the correctness of the decision in the case of Bhagwan Singh and etc. v. State of Orissa and Ors. , (1992) 5 OCR 107. But as has been already observed by brother Pasayat, J. since members of the Bar were permitted to argue even on the questions which have not been referred by the Division Bench and the questions have already been answered by brother Pasayat, J. I entirely agree with his conclusions.

20. At this stage, I would like to add a few words with regard to the Court's power Under Section 432 of the Code of Criminal Procedure. But before adverting my attention to the same, it would be appropriate for me to notice that the question of High Court's power to release an accused alleged to be involved in offences under the N. D. P. S. Act on bait, has been considered by the Supreme Court in a recent decision in the case of Narcotics Control Bureau v. Kishan Lal and Ors. , 1991 (I) OLR (SC) 305 , AIR 1991 Supreme Court 558, and that decision had not been brought to our notice while we heard the cases in the Division Bench. Their Lordships of the Supreme Court in the aforesaid case have come to the conclusion that the powers of the High Court to grant bail Under Section 439 of the Code of Criminal Procedure are subject to the limitations contained in the amended Section 37 of the N.D.P.S, Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. In view of the aforesaid authoritative pronouncement by their Lordships? of the Supreme Court ,I have no hesitation to reiterate my earlier conclusion; that the leamed Single Judge white deciding Bidyadhar Dolai's ease (1992) 5 OCR 31) committed error in concluding in paragraph-12: of the judgment to the effect ;

'......the judgment of the Court would not be fettered by the restraints of Section 37(1)(b) of the Act as the Court would no t be considering whether to release the petitioner on bait or not and instead would be deciding upon the validity of the arrest and detention.'

The learned Single Judge also committed further error in agreeing with the views expressed by Honble K. C. Jagadeb Roy, J. in Satyabrata 's case [73 (1992) CLT 726] by holding :

'Even so far as the provision of Section 37(1)(b) is concernsed, it engaged the attention of Hon'ble K. C. Jagadeb Roy, J. in Criminal Misc. Case No. 1166/91 (Satyabrata v. State) decided on 4-10-1991. to hold, with which views I agree, that the Court while considering the application for bail under the Act is not called upon to record a finding of not guilty with reference to the accused......'

The conclusion of the learned Single Judge in Bidyadhar Dolai's c ;ase (supra) as well as in Satyabrata's case being contrary to the enunciation of law laid down by the Supreme Court in Narcotics Control Buresau's case , 1991(I) OLR (SC)305, (AIR 1991 SC 558) the Division Bench rightly held the decisions to be not in accordance with law and there is no escape from the aforesaid conclusion of the Division Bench.

21. Coming to the question of exercise of power Under Section 482 of the Code of Criminal Procedure, their Lordships of the Supreme Court in a recent case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. , AIR 1992 SC 604, have dealt with the problem in relation to a prayer for quashing of FIR and in paragraph-109 of the judgment. by way of illustration their Lordships have given a few categories of cases where such power could be exercised either to prevent abuse of piraeess of any Court or otherwise to secure the ends of justice and it has also been further indicated that it is not possible to lay down any precise clearly defined and sufficiently channelised and inflexible guideline or rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised. Having given seven illustrations, their Lordships hastened to add a note of caution in paragraph-109 of the judgment to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases ; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuine- ness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. These observations of their Lordships of the Supreme Court made in relation to a prayer for quashing the FIR, in my considered opinion, would apply to a case where an application for bail is made by an accused alleged to be involved in offences under the N.D.P.S. Act and in course of hearing that application, complaint is made of non-compliance of certain provisions of the Act and the Court embarks upon an enquiry into those com- plaints and ultimately quashes his arrest or detention on a finding that certain provisions have not been complied with. In fact, when non- compliance of Section 50 of the NDPS Act had been raised in an application for bail before a learned Single Judge of Gujarat High Court in the case of Shirish Madhavdas Parikh v. State of Gujarat, 1991(2) Crimes, 157. the learned Judge had repelled the same on the ground that the contention could not be of any avail to the petitioner for the purpose of bail, but, however, he would be at liberty to raise the point at the time of trial. The question of non-compliance of Section 50 of the NDPS Act was also raised in a bail application by an accused before the Bombay High Court in the case of Sham Ramchandra Sonawane v. State of Maharashtra, 1991(3) Crimes, 775, and the learned Judge after analysing the provision of Section 37 of the NDPS Act came to hold ;

'... But as said earlier, even if this requirement ( of Section 50) is not followed and even if the same be held to be mandatory, the result would not be the conclusion that there would come into existence reasonable grounds for believing the suspect to be not guilty of an offence punishable with imprisonment for a term of five years or more...'

In the aforesaid premises, I reiterate my earlier conclusion while delivering the judgment sitting with Hon'ble D. M. Patniak, J, that the learned Single Judge was not entitled to quash the arrest and detention by invoking his jurisdiction Under Section. 482 of the code of Criminal procedure by embarking upon an enquiry as to whether certain procedures prescribed under the NDPS act have been complied with or not , while considering an application or bail at the instance of the accused, who had invoked the jurisdiction of the High Court Under Section 439 of the Code of Criminal Procedure.

22. I would like to add at this stage' a few words in relation to Art. 21 of the Constitution which has weighed with the learned Single Judge in quashing the arrest and detention. Under Art. 21 of the Constitution deprivation of liberty is permissible only when law authorising it is reasonably even-handed and geared to the goals of the community good and the necessity of the State spelt out in Art. 19. Reason- ableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interest of justice to the individual involved and the society affected. If the aforesaid principle is kept in view and the case of an accused involved in the commission of an offence under the NDPS Act is considered for being released on bail, and the legislative intent engrafted in Section 37 of the said Act is brought into the focus, I have no doubt in my mind that the accused will not be entitled to be released on bail unless the conditions prescribed in Section 37 are fulfilled and further the Court will not be justified in invoking its power Under Section 432 by entering into an enquiry as to whether certain procedures prescribed under the. Act have been complied with or not.

23. Coming to the question of interpretation of Section 36-D of the NDPS Act and the Bench decision of this Court in Bhagwsn Singh's case (1992) 5 OCR 107) to test the correctness of which the matter has been referred to the Full Bench, it is to be noticed that the Division Blench of this Court considering prohibition contained in Section 193 of the the Code of Criminal Procedure for a Court of Session to take cognisance of any offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate under the Code, has come to the conclusion that even though by virtue of the transitional provision, the offence committed under the Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 can be tried by a Court of Session until a Special Court is constituted Under Section 36, but the Court of Session can exercise the said power only when the case-is committed to it by a Magistrate when we considered the aforesaid view and disagreeing with the same had referred the matter to be placed before a larger Bench, a Single Judge decision of the Bombay High Court in the case of Suryakant Ramdas More and Ors. v. State of Maharashtra, 1989 Cr. Law Journal, 2422, had been brought to our notice, and we had been persuaded to agree with the said view. The learned Single Judge of the Bombay High Court in the aforesaid case did not think it appropriate to give a restricted meaning to the expression 'be tried' and came to the conclusion that the intention of the legislation could not have been to leave a void but to invest the Court of Session with the same powers which the Special Court will have under the provisions of the Act. In the meantime, several other High Courts have also taken the same view. Section 36-D came for interpretation in the case of State of Kerala v. Balakrishnan, 1991 (2) KLT 323, and the Court answered by holding:

'36-D is a transitional provision and it mandates that until a Special Court is constituted Under Section 36 any offence committed under the Act shall be tried by a Court of Session. Power Under Section 36D has been given notwithstanding anything contained in the Code, it may also be noticed that Section 4(2) of the Coda specifically states that all offences under any law other than Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiry into, trying or otherwise dealing with such offences. It is important to note that the purpose and object of the enactment of the Act is, to have a speedy trial of all offences, That is why the Special Courts are allowed to take cognizance of the offence, without there being a committal proceedings. So, the Court of Session empowered to try the case during the transitional period shall be deemed to be a Special Court having power Under Section 36-A(1)(d) of the Act to take cognizance of the police report or upon a complaint made by an officer of the Central or State Government authorised in this behalf. Section 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the Act. The Court of Session by virtue of the provisions contained in Section 36-D of the Act is competent to exercise the power under Clauses (c) and (d) of Sub-section (1) of Section 36-A of the Act, as if it is a Special Court constituted Under Section 36 of the Act. The Court of Session empowered Under Section 36-D of the Act can take cognizance of the offence without there being a committal proceeding and the method of taking cognizance in the manner laid down in Sections 120 and 193 of the Code is not applicable to the Sessions Court trying offences Under Section 36-D of the Act.'

The aforesaid decision was also approved , by a Bench of the Kerala High Court in Criminal Reference No. 2 of 1991 reported in 1992(1) Crimes, 1030 ( In re : accused).

The provision of Section 36-D of the NDPS Act came up for construction before a learned Single Judge of Madras High Court in the case of P. R. Muthu v. State, 1992(1) Crimes 1038. 'The learned Judge took into consideration the opening part of Section 193 of the Code of Criminal Procedure came to hold that if there was any specific provision available in the Code for taking cognisance of any offence by the Court of Session as a Court of original jurisdiction, even in the absence of a commitment, such a provision has to be given effect to, or if there is any other provision in any other law for the time being in force, recognising such cognisence to be taken by the Court of Session of any offence even in the absence of any such provision such a provision, must be given effect to. Construing Section 36D of the NDPS Act, the learned Judge observed that the non-obstante clause had been specifically incorporated at the fag end of the section to indicate that the procedure of commitment before trial was not contemplated under the Act. The learned Judge further observed :

'......there is enough indication in the said section to override the specific provisions contained in the Code as to the trial of offences under this Act by a Court of Session. The said provision must be construed as a Specific provision contained in a special law, as had been stated in Section 193 of the Code.'

Then again, if Legislature enacted a special Act for constitution of special Court for speedy trial then that intention must be translated by giving interpretation to the provisions of the Act and judged from that standpoint the transitional provision contained in Section 36-D must receive an interpretation which would subserve the object and purpose of the Act. The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of an enactment in question. That does not mean the text is to be construed merely as a piece of prose without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. 'Words are certainly not crystals, transparent and unchanged' as Mr. Justice Holmes has wisely and properly warned. (Towne v. Eisher, (1918) 245 US 418, 425. Learned Hand, J., was equally emphatic when he said ;

'Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.' (Lenigh Valley Coal Co. v. Yensaygge, 218 AIR 547 at 553).'

These observations have been quoted with approval by the Supreme Court in the case of Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981, and I bear in mind the aforesaid principle while interpreting Section 36-D of the N.D.P.S. Act. In my considered opinion, the Court of Session, until a Special Court is constituted Under Section 36 of the N.D.P.S. Act would exercise all the powers of a Special Court and that would be the correct position so far as Section 36-D of the Act is concerned.

24. Let me now examine this problem from another angle. In the case of State of U. P. v. Lakshmi Brahman and Anr., AlR 1983 SC 439, their Lordships of the Supreme Court were examining the power to release on bail or remand to custody after submission of charge sheet and before passing of commitment order. In that context their Lordships analysed Sections 2(g), 167, and 170, 207, 209, 309 and 439 of the Code of Criminal Procedure. In paragraph-12 of the judgment, their Lordships held :

'......It is Indisputable that taking cognizance of an offence Under Section 190 is a purely judicial function subject to judicial review by Court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate because Section 193 precludes it from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. Thus even in case of an offence exclusively triable by the Court of Session, the police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial. It is the Magistrate who takes cognizance of the offence and not the Court of Session though the case is one exclusively triable by the latter......'

(Underlining is mine)

Section 36-A clearly indicates that it is the special Court which has to exercise the power of a Magistrate in relation to an accused person suspected of commission of an offence under the N.D.P.S. Act. The only power of a Magistrate before whom such an accused is produced is as provided in Section 36-A(1)(b). The only harmonious construction of Section 36-A and Section 36-D is that until a special Court is constituted Under Section 36, the Court will exercise the powers of a Special Court and. therefore, Bhagwan Singh's case [(1992) 5 OCR I07 has not been correctly decided.

L. RATH, J.

25. I have had the benefit of perusing the judgment prepared by both my learned brothers, Hon'ble Mr. Justice Pasayat and Han'ble Mr. Justice Patnaik. It has become necessary, since I agree with some of the conclusions reached but have been unable to concur with some other views taken, to traverse the full scenario in greater detail. But before S tackle the various questions that I am called upon to traverse, it is pertinent to deal with some aspects of practice and precedents as the, question has been dealt with both by my learned brothers taking the view that the single Judge decision in 1992 (5) OCR 31 (Bidyadhar Dolai's case) has been overruled by the referring judgment in this case and that the questions-dealt with in that case has yet been considered by this Bench because of the arguments advanced at the Bar to have a fresh look at the subject. Brother Justice Patnaik specifically took the view that the referring judgment of the Division Bench had rightly held Bidyadhar Dolai's case, to be not in accordance with law though it was accepted that in the judgment there had been inaccuracy, inasmuch as in Bidyadhar's case the criminal proceeding had not bean quashed but only the arrest and the detention of the accused.

26. The question that arose in Bidyadhar's case was the interpretation of Section 42, 43(b), 50, 52 and 57 of the Act vis-a-vis the arrest and detention of an accused as also the question of his enlargement on bail or quashing of his arrest and detention either under Art. 226 of the Constitution of India or Under Section 482 of the Code of Criminal Procedure because of infringement of his personal liberty in violation of Arts. 21 and 22 of the Constitution when the arrest and detention are not in accordance with the procedure established by law. in the case, which I may have occasion to discuss in detail later on, it was held that those provisions of the Act though are mandatory yet the failure of their observance does not automatically make a conviction under the Act bad unless it is shown that the non-compliance has rendered the very prosecution case untruthful or doubtful or that the accused has been prejudiced by reason of such non-compliance. But it was held that so far as arrest and detention are concerned, the position of law is different inasmuch as the provisions prescribing the procedure for arrest and detention are to be regarded as mandatory and their non-compliance would render the arrest and detention illegal unless departure from compliance was justified showing that circumstances existed which made the non-compliance unavoidable and that it was necessitated in the very exigencies of the situation. It was thus held that where a person's liberty has been deprived in non-observance of the procedural law, he may become entitled to liberty, the arrest having been unauthorised or even if the arrest was valid, the detention becoming invalid. The conclusions were fortified relying on Arts. 21 and 22 of the Constitution which guarantee that nobody is to be deprived of his personal liberty except with the procedure prescribed under Saw and that no one arrested is to be detained in custody without being informed, soon after the arrest, the grounds of his arrest end is to be informed of his right to consult and be defended by a legal practitioner of his choice, It was also decided that when a person's liberty is taken away in contravention of the provisions of the procedure prescribed, it no longer remains a question of grant or refusal of bail, but becomes a question of infringement of his fundamental right ; the arrest and detention being procedurally ultra vires : and as such either powers under Art. 226 of the Constitution or Under Section 482 Cr. P. C. can be invoked by the High Court in appropriate cases to quash the arrest and detention and that in such process of quashing. Section 37(1)(b) of the Act would not impose any ha as that is a provision which only restricts and imposes conditions regarding grant of bail. While considering the question from the angle of violastion of Arts. 21 and 22 read with Sections 42, 43(b). 50, 52 and 57, it is not a question of grant of bail but is a question of releasing a person from illegal arrest and detention. In the case, the decision of Hon'ble K. C. Jagadeb Ray, J. in Satyabrata v. State (Cri. Misc. Case No. 1186/91 decided on 4-10-1991) was concurred with so far as It was held there that Under Section 37(1)(b) the Court while considering an application for bail, is not called upon to record a finding of guilt regarding the accused and that that Section is not to be equated with Section 248 Cr. P. C.

27. While such were the questions that engaged the attention of the Court in Bidyadhar's case-(supra), the questions which were referred to the Division Bench by Hon'ble A. Pasayat, J. in the present four cases were as follows :

1. Whether an excise official investigating into arc offence under the Act is a police officer empowered to fife a charge-sheet or he is required to file a complaint Under Section 190 of the Code of Criminal Procedure. 1973 (in short the Code') ?

2. In a case where the prosecution report is not submitted within fifteen days, which Court has jurisdiction to deal with the matter, in the absence of establishment of a special Court constituted Under Section 36 of the Act.

3. Whether a remand beyond the aforesaid period is permissible by the Magistrate 7 In case such a remand is not permissible, does the accused get bail automatically In this context, reliance Is made to a decision of this Court in 1991 (I) OLR 549 (Sauti Jena and Anr. v. State). A learned single Judge of this Court observed that all considerations which apply in law to the question of enlargement on bail under the proviso to Section 167(2) of the Code become applicable to a person forwarded under the Act to the Magistrate after expiry of fifteen days or seven days from the date of remand, as the case may be.

4. In the absence of any specific provision to show that the Court of Session shall be the Special Court for all purposes, whether a person can be forwarded to it by a Magistrate in terms of Section 36-A(1)(c) '

These four cases came before the Division Bench consisting' of Hon'ble G. B. Pattnaik and D. M. Patnaik, JJ. by virtue of the reference. Since by the time the Division Bench considered the referred questions, a decision of another Division Bench constituted of the Hon'ble the Chief Justice and the Hon'ble B. N. Dash, J. in 1992 (5) OCR' 107 (Bhagwan Singh and etc. v. State of Orissa and Ors. ') had been delivered taking the view that a Court of Session cannot try a case under the NDPS act unless it has been committed to it by a Magistrate and cannot take cognizance of the offence as a Special Court Under Section 36-A(1)(d) and the two Hon'ble Judges were not in agreement with the view expressed in Bhagwan Singh's case, they referred the matter to a Full Bench and that is how these matters have come before us.

28. From the questions referred by Hon'ble Justice Pasyat, it is apparent that the questions which were dealt in Bidyadhar's case were not the subject matter of reference and for the matter also the questions decided in Satyabrata case were not the subject matter of the reference. The facts of these four cases are also different. In Criminal Revision No. 243/91 the relief claimed is the quashing of the criminals proceedings on the ground that the commitment made by the S.D. J.M. Jharsuguda without complying with the provisions of See. 202 (2) Cr, P.C. proviso being null and void, the Sessions Judge had no Jurisdiction to proceed with the trial. In Criminal Revision No. 245,f91 time relief claimed was quashing of the criminal proceeding on the ground that the Sessions Judge had no jurisdiction to take cognizance on a report submitted by the excise official. In Criminal Misc. Case Nos. 954 -and 955 of 1991 similar relief was claimed on the ground that the report of the excise official had to be treated as a complaint and had to be filed before a Magistrate who after following the procedure contained in Section 202 (2) proviso of Cr.P.C. could take cognizance and commit the matter to the Court of Session for trial. As such none of these eases raised either the question of quashing of the arrest and detention when they are contended to be illegal because of infraction of Arts. 21 and 22 of the Constitution, or the question of the scope and ambit of Section 37(I)(b) vis-a-vis the power to grant bail. These questions do not arise for consideration in the four cases which are presently before us and neither did arise before the Division Bench constituted to answer the reference made by Hon'ble Pasayat, J. Even the very referring judgment now also does not state as to in what context the correctness- or otherwise of Bidyadhar and Satyabrata's cases came to be considered by it. The question does not appear to have been agitated or submissions relating thereto advanced at the Bar. It hence appears that the questions were taken up for consideration by the Division Bench on its own without there being any move for the same and without it being constituted for the purpose.

29. In the judgment of my learned brother Justice G. B. Pattnaik, the binding nature, of the judgment of a Division Bench overruling the judgment of a single Judge of a High Court, as a precedent, has been referred to and on that basis it has been held that since the Division Bench in its referring judgment overruled the decisions of Bidyadhar and Satyabrata's cases, it was not necessary for this full Bench to consider the questions regarding their correctness. While it is so said it has also been observed that the question should also remain shielded from the gaze of the Full Bench as the Division Bench has snot referred those questions. With great respect 1 would hold She reasoning to be fallacious. If a Full Bench cannot consider the questions since the Division Bench has not referred those to it, the same logic would also apply to the Division Bench, , that, it could not decide upon those questions since the Single Bench never referred these to0 it Moreover, while these questions were not canvassed nor. did arise, before the Division Bench, they have been argued at length before the Full Bench. On its own logic, if the Full Bench is not , to consider the questions and, the exercise in that matter of both, my learned brothers is gratia, the decision of the Division Bench purporting to overrule .'either-. Bidyadhar's case or Satyabrata's case was equally without authority and, does not have precedence value.

30. The decision making process of judicial bodies proceeds on well-edged grooves. Before a decision is rendered the question has to arise for consideration before the Court presented to it in accordantes with the procedure of law, has to be canvassed by the contesting parties before the Court addressing 'their respective view-points either themselves or through their counsel and the Court has to decide and lay down the correct view after addressing itself to the submissions made. If the procedure is not followed, the judgment and render can hardly be called a decision and hence any-observation made by- It would did not directly arise before it for decision would be obiter dcta the question came to be considered in AIR 1980 SC 1707(Rajpur Ruda Meha and Ors. v. State of Gujarat) where dealing with the taw of precedents the Court observed that when certain question is neither raised not argued, a discussion by the Court after pondering over the issue in depth' would not be a binding precedent. If would be beneficial to note as to in what respect the decision was made. An appeal preferred to the Hon'ble Supreme Court against an order of convictori passed by the High Court Under Sections 302/120-6, IPC reversing an acquittal by the Sessions Judge was summarily dismissed Under Section 384, Cr. P. C. After the judgment had been pronounced dismissing the appeal but before the signing of it, a Constitution Bench decision in 'AIR 1979 SC 745 (Sita Ram and Ors. v. The State of Uttar Prerdash) was cited with regard to the scope of powers of the Court under Sec 384 Cr.P:C. Considering the citation it was held that in that case certain questions had arisen regarding validity of Clause'(c) of Sub-rule (1) of Rule 15 of Order XXI of the Supreme Court Rules empowering the Supreme , Court to dismiss appeals summarily as ultra vires the Supreme Court (Enlargement of Criminal Appellate jurisdiction) Act 1970 The power of the Supreme Court to frame rule under Art. 145 of the ,Constitution to the extent of annulling the rights, conferred under an Act of the Parliament and whether an appeal, under the aforesaid, Act could be dismissed summarily without calling for the record notice to the State and without giving reasons had been referred at the instance of the Bench which heard the special Leave .petition to the Bench of five Judges, While dealing with, questions the Constitution Bench also dealt with the scope of Sec 384 Cr P.C. and inter alia held, while upholding the vires of Order XXI Rule 15 (1) (c) of the Supreme Court Rules as also of Section 384, Cr. P. C. that their application both the provisions are restricted by certain criterion as permissible- exercise in constitution satiun. In para-53 it was held that the. restrictions already Indicated in the judgment as applying to Order 24 Rule 15(1)(c) may legitimately be read into. Section 384, Cr.P.C. These; views-were taken by their Lordships niter in depthrpondering over the Issue that they may be disinclined to summarily dismiss there advanced by the, counsel in their behalf. The authority of the .decision, being cited while the appeal had beers dismissed summarily the Division Bench in AIR 1980 SC 1707 (supra) observed

'Neither in the application for adducing additional grounds or in the of the Court directing the matter to be placed before the constitution Bench, there was any reference to the validity of Section 334 of the Cr. P. C. Neither was it pleaded during the arguments that Section 384 of the Cr. P. C. is Ultra vires of the constitution As the question of validity of 384 of the Cr P. C. was neither raised nor argued, a discuss the Court after pondreing over the issue in depth' would not be a precedent on the Courts. The decision is an authority for the that Rule 15(1)(c) of Order XXI of the Supreme Court Rules should be read down as indicated in the decision.

The decison is an authority old that consideration by Bidyadhar and Satyanba cases was outside the purview of the Division Bench, and it was not within its competennce go into the questions decided in those cases and much less had any power to overrule the same and hence to that extent the pursported overruling the cases has to be regarded to be in excess of its authority and not to have any legally binding effect.

31. The views expressed in AIR 1980 (supra), is also not singular in the field. In a long series of decisions it has been held time and again by the apex Court that it is of utmost importance that in deciding, eases before them the Judges must exercise judicial restraint and must not embark upon questions which do not directly arise before them and that a decision has precedent value only so far as its ratio decidend is concerned and to that extent only it has precedent value but not otherwise in AIR 1964 SC 1573 (B. Rajagopala v. S. T. A. Tribunal) it was observed in para-23 that the Court has often emphasised that in constitutional matters it is of utmost importance that the Court should not make any obiter observations on points not directly raised before it for its decision. In AIR 1968 SC 647 (State of Orissa v. Sudbansu Sekhar Misra) it was held that a decision is only an authority for what it actually decides and that what is of the essence in a decision is its ratio and not every observation made therein nor what logically follows from the various observations made in it. On the topic, the following observations of Earl of Halsbury IC in (1901) AC 495 (Quinn v. Leathern) was quoted with approval :

'Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are to observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. 1 entirely deny that it can he quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'

In AIR 1976 SC 1207 (A. D. M. Jabalpur v. S. Shukla) what is popularly known as the habeas corpus case, the Court while dealing with the question of locus standi to move a writ petition for violation of Arts. 19, 21 and 22 during the subsistence of the Presidential Order under Art. 359(1) proclaiming emergency in the country was confronted with the observations made in AIR 1964 SC 81 (Makhan Singh v. State of Punjab), a Constitution Bench decision of seven Judges wherein the observations had been made, after deciding about the scope of the Presidential Order under Art. 359(1) saying that as the claims of citizens to move any Court would not be effectively adjudicated upon without examining the question as to whether the citizen is in substance seeking to enforce any of the specified fundamental rights, and that the prohibition contained in Art. 359(1) and in the Presidential Order applies to Section 491(1)(b) of the Cr. P. C. and Arts. 226(1) and 32(1), the applications under those provisions were not maintainable ; yet decided that there may still be open to the citizens to challenge the legality and propriety of their detention either under Sac. 491(1)(b) or Art. 226 of the Constitution if the detenu pleads any right outside the fundamental rights specified in the Presidential Order, since his right to move any Court in that behalf is not suspended because of being outside Art. 359 and consequently outside the Presidential Order itself. Illustrating, their Lordships observed that when a detenu has been detained in violation of the mandatory provisions of the Act, it may be open to him to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened and that such a plea is out- side Art. 359(1) and his right to move against this is not affected by the Presidential Order. Another ground illustrated was when the detention was mala fide, as the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be challenged. Considering these observations it was held in the habeas corpus case in para-546 that in the first place the question as to what were the other pleas available to the detenu in -challenging the legality or propriety of his detention despite the Presidential Order of 3rd November, 1962 was not an issue before the Court and did not fail to be decided for which the observations made by the Court on the question were clearly obiter. In the decision AIR 1971 SC 530 (H. H. Maharajadhiraja v. Union of India) was referred to say that an obiter cannot take the place of the ratio and that Judges are not oracles for which reason that part of the decision did not have any binding effect and could not be regarded as conclusive- on the point. In AIR 1976 SC 1766(Regional Manager v. Pawan Kumar) the Court said :

'...It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.'

The same view was expressed in 1979 (3) SCC 727 (Bachan Singh v. State of Punjab ) saying:

'...Halsbury's Law of England (3rd Ed. Vol. 22 at page 796), explains what ratio decidendi is The enunciation of the reason or principle on which a question before' a Court has been decided is alone bindbing as a precedent. The concrete decision alone is binding between the parties to it but it is the abstract ratio debidendi as certained on a consideration of the judgment in relation to the subject matter of the decision which alone has the force of law and which when it is clear what it was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lax down a rule that is unnecessary for the purpose in hand have no binding authority on another Court though they may have some merely persuasive efficacy.'

The observation-made in AIR 1985 SC 790 (M/s. Gasket Radiators Pvt. v. E. S. I. Corporation) was :

'Nor can we read a judgment once particular aspect of a question as a Holy Book covering all aspaected of every question whether such questions and facts of such questions arose for consideration of not in that case.'

Again in AIR 4889 SC 38 (Municipal Corporation of Delhi v. Gurnam Kaur) disepproving the decision of the High Court which had followed a judgment of the apex Court passed on consent of the parties as precedent thier Lordships observed.

'The only thing in a judge's decisions binding as an authority upon a subsequently judge is the principle upon, which the case was decided. Staments which are not part of the ratio decidend are distingmshed as obiter dicta and are not authoritative.'

(Para-10)

'Precedents silentio and without argument are of no moment. This rule has ever since been follwed.'

(Para-12)

In the same case, observation made by Sahnond on Jurisprudence, 12th Edn., at page 153 regarding the concept of 'sub sifeniio' was quoted with approval :

'A decision passes sub sileritio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in that decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point' by which it considers and pronounces upon, it may be Shown however that logically the Court should not have decided in favour of the particular' party unless it also decided point B in his favour but point B was not argued or considered by the court. In such circumstances,' although' point B was logically involved in the facts and although the case had a specific outcome, the decision is not and authority on point B. Point B is said to pass 'sub silentio'.'

Hence if an inescapable view on a question of law through is the logical basis on which the decision of the Court must have been based yet becomes sub silentio in the sense that it is not an authority on the question, it is indeed difficult to comprefiend how a decision rendered on a question not urged nor argued before the Court can become an authority. In 1990 (4) SCC 207 (Krisrhena Kumar v. Union of India) the principle was explained with the words .

'The doctrine of precedents that is being bound by a previous decision, is limited to the decision itself and as to what is. necessarily involved in it ' It does not mean that-this, Court is bound by the various reasons given in support of especially when they contain 'propositions wider than the case itself required. This was what Lord Selborrne said in Caledonian Railway Co v. Walker's Trustees (1882) 7 APP. Case, 259 46 LT (RL) and Lord Halsbury in Quinn v. Leathern. 1901 AC 495 502 17 TLR 749 (HL). Sir Frederick Pollock has, also said :Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasona given, but only to the, principles accepted and applied as necessary grounds of the decision'.

XX XX

'Stare decisis et non quieted movere. To adhere to precedent and not to unsettle things which are settled But it applies to litigated facts and necessarily; decided questions. xx xx

xx xx xx A deliberate and solemn decision, of, Court made after argument on question of law fairly arising in the case, and necessary to its determination is an authority or binding precedent in the same Court or in other Courts of equal lower rank in subsequent-cases where the very point is again is controversy unless there are occasions when departure is rendered necessary to vindicate plain obvious principles of law and remedy continued injustice.'

Because of such clinching and authoritative pronouncements of the highest Court, I am of the opinion that the referring decision of the Division Bench had no authority to deal with the correctness or otherwise of the decisions in Bidyadhar's or Satyabrata's case (supra) and thatthe decision has neither any binding effect nor has any precedent value. In view of the foregoing discussions, it hence is to be held that the referring decision so far as it purports to overrule Bidyadhar's case and Satyabrata's case is not functionally operative to that extent and that in spite of such decision the principle decided in Bidyadhar's case remains operative. So far as Satyabrata's case is concerned, however the same cannot be said in view of the decision of the Supreme Court in AIR 1991 SC 568 (Narcotics Control Bureau v. Kishan Lal and Ors. ) to which I shall advert later. It follows that since the Division Bench had no competence to examine the correctness of Bidyadhar's case and its correctness was also not referred by the Division Bench to to the Full Bench and instead the reference to this Bench is only regarding interpretation and scope of Section 36-D, it is devoid of authority to deal with those questions, a conclusion which has also been reached by my learned brother Justice G. B. Pattnaik, though for a different reason. Rule 1 of Chapter IV of the Orissa High Court Rules also in effect states the same thing in providing that whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench or whenever in any case a Division Bench differs from any other Division Bench upon a point of law or usage having the force of taw, such case shad be referred for decision by a Full Bench. A reference can hence be made by a Divisioion Bench if there is difference upon a point of law or an usage having the force of law. On such premises the conclusion becomes logical that if at all the questions regarding the correctness of Bidyadhar's case is to be considered, the matter is to be placed before the Hon'ble Chief Justice to constitute suitable Bench for that purpose and until that is done, all decisions on the questions that arose in Bidyadhar's case would not be in answer to the question for which the Bench was constituted and hence would be obiter.

32. Having come to this conclusion it however becomes necessary to traverse the very questions since they have been dealt with by my learned brothers at length. Entering into such area of consideration, the first question that engages the attention is the permissibility of invoking Section 482. Cr.P.C, or Art. 226 of the Constitution of India to quash an arrest or detention made in violation of the procedure laid down in the Act for effecting the arrest and continuing the detention. At the outset it may be clarified, as had been observed earlier, that so far as Bidyadhar's case is concerned distinction was drawn on the one hand between quashing of convictions, the criminal proceedings and investigations and on the other hand the quashing of only arrest and detention without in any way touching the investigation or the proceeding itself. In that case the distinction was developed to explain that when the arrest and detention are in violation of the procedure sanctioned by law, those become ultra vires the Constitution as hit by Art. 21 of the Constitution of India. In such cases it becomes a question of either issuing a writ of habeas corpus or exercising power Under Section 482 Cr.P.C. to quash the arrest and detention and not one of either to grant bail or not. The two concepts are entirely different. In one case the arrest and detention is procedurally ultra vires, and in the other case the arrest and detention is valid, but bail is sought on other grounds as are available under the statute and placing circumstances before the Court to exercise its discretion either to enlarge on bail or not. In the former, the man is wholly free, without any restraint upon him, and in the other his custody remains with the Court until the bail subsists. I am in complete agreement with both my learned brothers that Section 482, Cr.P.C. or Art. 226 can be resorted to quash the criminal proceedings or the conviction or for that matter, the investigation only in the rarest of rare cases to borrow that hackneyed phrase, and that merely because certain procedural infirmities are alleged or even established in the matter of search and seizure or arrest and detention, neither the proceeding ipso facto becomes vitiated nor the investigation becomes liable to be scuttled and for that matter no conviction can also be reversed to that of acquittal only for such reason unless the illegalities established are, subject to the provisions of Section 35 wherever applicable, grave enough to make the very prosecution case doubtful or suspicious, or it is shown to have caused grave prejudice to the accused during the trial resulting in apparent injustice. Without multiplying the decisions on the subject, it would be suffice only to refer to AIR 1992 SC 604(State of Haryana v. Bhajan Lal) where, making a resume of all the decisions of the Supreme Court on the point, the Court said :

'The nagging question that comes up for examination more often than not is under what circumstances and in what categories of cases, a criminal proceeding can be quashed either in exercise of the extraordinary powers of the High Court under Art. 226 of the Constitution of India or in the exercise of the inherent powers of the High Court Under Section 482 of the Code.'

Citing with approval the observations made in AIR .945 PC 18 (King Emperor v. Khwaja Nazir Ahmed), AIR 1982 SC 949 (State of West Bengal v. Swapan Kumar Guha) and AIR 1989 SC 1 (State of Bihar v. Murad Ali Khan) as also a large number of other decisions, the Court in para 108 of the judgment mentioned, by way of illustration, seven categories of cases where the power either under Art. 226 of the Constitution or Under Section 482 Cr.P.C. can be exercised either to prevent the abuse of any process of the Court or otherwise to secure the ends of justice. The Court hastened to add that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exnaustive list of myriad kinds of cases wherein such power should be exercised. Saying so, the Court also administered a caution, which has already been adverted to by my learned brother Justice G. B. Pattnaik, that the power to quash a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an auitrary jurisdiction on the Court to act according to its whim or caprice.

33. From the authoritative pronouncement it becomes clear that the power Under Section 482,Cr.PC can be exercised for the purpose of quashing a criminal proceeding or an F.I.R, or the investigation ensued upon it as also under Art. 226 of the Constitution of India and that the kinds of cases in which such powers may become exercisable are large though the power must be exercised with utmost restraint. There hence cannot be any doubt that Under Section 482, Cr. P. C. the High Court can quash only the arrest and detention even if it does not want to nullify the entire criminal proceeding or investigation, if it is satisfied that the case is one genuinely fit for that exercise of the power. Such power of the High Court is unquestionable and does not wait for any pronouncement by any Court since the decision of the apex Court on the issue is the law of the land. As such whenever the .Court finds that the arrest and detention of a person is of such nature that powers Under Section 482, Cr. P. C. should be exercised to quash the same, no exception can be taken to it to observe that the Court has no authority to release him.

34. The question that next arises is when can the arrest and detention of a person be regarded as justifying the invoking of the powers Under Section 432, Cr. P.C. to quash the same. Obviously the power cannot be ex excised in all cases of arrest and detention. Where the arrest has been made in pursuance of an investigation taken up on the basis of an F I.R. and in course of the investigation a person is arrested on the basis of the materials collected. Section 482, Cr. P. C. cannot have any play and the pei son arrested must seek his liberty by moving for bail. Where however it is shown that the law itself devises a procedure for making the arrest and declares either expressly or impliedly the observance of such procedure as ' mandatory, the arrested person may legitimately complain of his liberty having been taken away not in accordance with the procedure established by law but in an arbitrary, whimsical and capricious manner. In such cases, if the Court is moved, it may become neceassary for it, in proper cases, to invoke its power Under Section 482, Cr. P. C. or Art. 226 of the Constitution to obviate a manifest injustice and illegalit by directing the release of the person from detention. But the liberty so secured is neither an acquittal nor does it put an end to the investigation and indeed a future arrest of him properly in accordance with the procedure of law is also not prohibited. The Supreme' Court explained, in relation to the effect of issus of a writ of habeas corpus in 1970 ( 2) SCC 399 (Sapmawia v. Deputy Commissioner, Aijal) as :

'The writ of habeas corpus is a prerogative writ by which the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not .satisfy the Court that the deprivation of his personal liberty is according to the procedure established by taw, the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power, to arrest and keep him in custody in accordance with law for this writ is not designed to interrupt the ordinary administration of criminal law. XX XX

If, therefore, a person has been deprived of his personal liberty in violation of the procedure established by law and no cogent ground for declining relief in habeas corpus proceedings is made out, then this Court has no option except to order his release, for personal liberty of the individual is highly cherished in our set-up giving priority only to the interest of the nation and the security of the State. It is undoubtedly true that in our eastern and north-eastern borders there are some unfriendly foreign powers which, with evil and hostile designs, are constantly seducing political adventurisms and gullible inhabitants of that area and aiding and encouraging their unlawful activities prejudicial to our democratic set-up. Such a situation, posing as it does a serious threat to orderly life and security of the State demands drastic measures for meeting it. It is also correct that the charge against the petitioners pertains to security of the State. But these considerations do not afford sufficient justification for by- passing or violating the provisions of the Constitution. Executive expediency should not prevail over the rule of law as envisaged therein. For meeting with emergencies the Constitution, it may be pointed out, contains adequate provisions.'

It was thus made clear that the personal liberty of a citizen cherished as it is, under the Constitution is incapable of being relegated to the back bench merely for executive expediency but that while the liberty is to be guaranteed yet it does not afford any immunity from prosecution under the ordinary criminal law of the country. All that the fundamental right of a person to liberty requires is not that a person's liberty cannot be taken away but that in taking it away the procedural safeguard must mat. in the case before the Supreme Court even suspected involve not under the Unlawful Activities (Prevention) Act and the' Assam maintenance of Public Order (Autonomous Districts) Act was not considered to be affording sufficient justification to curtail the man's liberty. In principle the Supreme Court recognised that a writ of habeas corpus can also be refused if cogent grounds for declining the same are made out.

35. These considerations will apply with equal force when complaint of similar nature is made Under Section 482, Cr. P. C. as has been made clear in AIR 1992 SC 604 (supra),

36. It is for such reason I am unable to agree with my learned brother Justice Pasayat that the question whether the procedure prescribed has been followed is a matter for trial, that whether in fact the designated officer has acted in a particular manner is to be gone into at the time of trial, that the Court in consideration of the questions raised would then decide whether there has been any prejudice to the accused or that these procedural irregularities are open to be canvassed only at the time when an application for bail is moved. As a matter of fact, in his Lordship's view, an interference Under Section 482, Cr. P. C. for violation of Art. 21 of Constitution is permissible if there is unrebutted acceptance by the prosecutor that a particular procedure intended to safeguard the personal liberty of a person is affected but if there is denial thereof, the Court is not to embark upon an elaborate enquiry and evaluation of the respective stands. With great respect I am unable to agree as in the very decision 1970 (2) SCC 399 {supra) the law declared by the Supreme Court is different in saying that it is the responsibility of the authority having the custody of the person to satisfy the Court that the deprivation of the personal liberty is according to the procedure established by law. It is again for such reason I am to hold that if non-cornpliance of statutory safeguards in depriving personal liberty is complained of, the Court is not powerless to examine the same only because the answer of the authority is in the negative. To me, the correct position is that if the allegation of the complainant is frivolous the Court may refuse to take notice of it, but if the allegations are serious and grave or prima facie show plausibility, the Court would not closts its eyes merely because of the denial of the authorities but would be entitled to Sift the veil and see beyond the veneer whether there is substance in the accusation and in that case it would be the responsibility of the State to satisfy that in fact the deprivation of personal liberty has been in compliance with the procedure established by law.

Considering the question of onus when the infringement of liberty of : person is challenged, the Supreme Court observed in AIR 1974 SC 317 (Mohd. Alam, etc. v. State of West Bengal) :

'Our democratic Constitution inhibits blanket and arbitrary deprivation of a person's liberty by authority. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by Saw. It further permits the State, in the larger interests of society, to so restrict that fundamental light that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. The slightest deviation from or displacement or infraction or violation of the legal procedure symbolised in that fulcrum, upsets the balance, introduces error and aberration and vitiates its working. This symbolic balance therefore has to be worked with utmost care and attention. Viewed in that perspe ctive, the requirement as to the filing of the counter-affidavit by the proper person cannot be treated as an empty formality. This obligation stems from the well-settled principle that once a Rule Nisi is issued on habeas corpus motion, by the Court, the onus is on the State to show that the liberty of the detenu has been taken away in accordance with procedure established by law, and that the safeguards provided in Art. 22 and in the Act, have not been transgressed or by-passed.'

The same anxious considerations would apply when violation of Art. 21 is complained of.

37. From the conclusions reached by me it would logically follow that while considering the validity or otherwise of a person's arrest and detention in the background of Art. 21 Section 37 of the Act has neither any relevance no? any bearing. That Section puts certain pre-conditions to be satisfied before bail is granted to a person accused of an offence under the Act. It has now been authoritatively pronounced by the Apex Court that the power of bail even when exercised by this Court yet is circumscribed by the considerations Under Section 37 and hence the law in that respect has becomes settled. But the Supreme Court was not considering in me case the infringement of the fundamental right of a person as regards his personal liberty and his release because of the ultra vires character of the arrest. Section 37 of the Act does not, and indeed it cannot, abridge the right of a person under Art. 21 of the Constitution and if there is a conflict, and 1 may at once make it clear that there is none such at all, the Section must yield to the constitutional mandate. It is of course true that the statute itself directs the loss of personal liberty and lays down the procedure for it which may be drastic in nature but yet the arrest would not become ultra vires if the procedure has been followed, but where the procedure though severe has even not been followed, it becomes the bounden duty of the Court to set the man at liberty without any conditions attached. A provision like Section 37 does pot stand in the way of the Court.

38. It would be useful at this stage to take note of some of the views expressed by the Supreme Court regarding the concept of personal liberty and procedure established by law. Hon'ble B. K. Mukherjee observed in AIR 1950 SC 27 (A. K. Gopalan v. State of Madras) :

'In ordinary language, 'personal liberty' means liberty relating to or concerning the person or body of the individual and 'personal liberty in this sense is the anti-thesis of physical restraint or coercion. According to Dicey, who is an acknowledged authority on the subject, 'personal liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification : vide Dicey on Constitutional Law, Edn. 9, pp. 207 and 208. It is in my opinion, this negative right of not being subjected to any form Of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.'

The same Hon'ble Judge again observed ;

'On a plain reading of the Article, the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty. The expression 'procedure' means the manner and form of enforcing the law.'

In the same judgment Hon'ble Justice Fazl All said :

'The expressions 'personal liberty' and 'personal freedom' have, as we find in several books, a wider meaning and also a narrower meaning. In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc. In the narrower sense, they mean immunity from arrest and detention. I have shown that juristic conception of personal liberty' when these words are used in the sense of immunity from arrest, is that it consists in freedom of movement and locomotion.'

The question of strict compliance with the procedural law vis a-vis deprivation of a man's personal liberty came for consideration before the Constitution Bench of the Supreme Court in AIR 1966 SC 740 (Ram Manohar Lohia v. The State of Bihar and Anr.) where in the majority view it was said :

'If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people.

XX XX

But it would be legitimate to require in such cases strict observance of the rules. If there is any doubt, whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu.'

In the case the detenu's release was directed. In AIR 1978 SC 527 (Babu Singh and Ors. v. The State of Uttar Pradesh) which arose out of an application for bail in a pending appeal before the Supreme Court which had once earlier refused the bait, the Court observed :

'Personal liberty deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a Sitigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental,suffering lawful eclipse .only in terms of 'procedure established by law.' So deprivation of personal freedom, ephemeral or enduring, must be founded on the most series considerations relevant to the welfare objectives of society, specified in the Constitution.'

Another Constitution Bench of the Supreme Court again upheld the paramount character of personal liberty in AIR 1989 SC 653 (Kehar Singh and Anr. v. Union of India and Anr.) and observed :

'To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is, in most civilised societies regarded seriously/and recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.'

39. The conclusion is hence irresistible that even where a man is accused of having committed an offence under the Act, he is yet entitled to hold on to his fundamental right of being not. deprived of his liberty unless it be in accordance with the procedure envisaged under she Act and he can always move the Court either invoking its extraordinary powers under Art. 226 of the Constitution of India or its inherent powers Under Section 482,Cr. P. C. to set at naught his incarceration as he has been made to lose his liberty unauthorisedly in violation of the procedure required to be complied with.

This would bring one to the question as to the mandatory or directory character of the Sections i.e. of Sections 42, 43(b), 50, 52 and 87. Dealing with the question in Bidyadhar's case had occasion to examine the decisions rendered by different High Courts regarding the mandatory or otherwise character of Sections 41 to 58. In para 5 of the judgment, the decisions of the Panaji Bench of the Bombay High Court in 1989 Cri L.J. 430 (Abdul Sattar v. State), of the Gujarat High Court in 1991 Cri LJ. 1483 (Surajmal Kanaiyalal Soni v. The State of Gujarat), of the Delhi High Court in 19S1 Cr. L. J. 143 (David R. Hall v. State-Delhi Administration), of the Punjab and Haryana High Court in 1988 Cd. L.J. 528 (Hakam Singh v. Union Territoiy), of Delhi High Court. 1989 Drug Cases 07 : 1989 (l)FAC 133 (Richpal v. State-Delhi Administration), (1989) (1) Delhi Lawyer 157 (Jayapalan v. State), of Delhi High Court in 1991 Cri. L. J. 147 (Santokh Singh v. State), (1987) .1 Crimes 29 (Ratan Lal v. State) and of Kerala High Court in 1991. Cri. L.J 2945 Ismail v. State of Kerala) which had been relied upon by the Slate were retmed to and analysed to show that all those cases were decided on appeals against convictions and generally took the view that even if the provisions of Sections 41 to 58 or some of there were mandatory, yet their mere non-compliance would not vitiate the conviction when recovery of narcotics from the accused is proved so be genuine. Some Courts have expressed the opinion that if in non-compliance with the Sections 41 and 42 the police officer fails to reduce the information received by him to writing, that would always fee a question of prejudice to 'the accused and hence is a fact which is required to be considered in the light of the circumstances as to whether in fact prejudice had been caused to him. It was held that mere no-compliance with these provisions would not vitiate the trial. The view adopted was that while the provisions of the Sections are not to be obviously ignored by the Court or by the prosecution. yet they are to be kept in veiw only to scan whether the prosecution case is truthful or not or that when there there are areas of doubt in respect of the prosecution case. In some cases, the view was taken that though the provisions are mandatory, yet where their compliance was not possible because of the urgency of the situation and it would have frustrated the attempt to nab the accused such infirmity would not vitiate the trial. The conclusion was reached that the non-observance of the mandatory provisions may become justifiable under some circumstances. The sum total of the views revealed in the decisions was thus that the provisions of Sections 42. 50(1). 52(1) and 67 are necessary of compulsory compliance but that there may be justifiable departure of them and hence their non-compliance would not ipso facto nullify the trial and the conviction ensuing thereupon but that the facts will vary from case to case and that such non-compliance may in some cases cast cloud over the very prosecution when it is found by the Court that there was deliberate failure to comply with the salutary provisions of the Act or that no reasonable explanation forthcomes to support the departure. Non-compliance or insufficient compliance could vitiate the prosecution only if it resulted in prejudice and failure of justice and that normally an irregularity or illegality in the collection of materials cannot affect the trial and conviction though there may be cases where the violaions themselves will prove fatal and prejudice or failure of justice has to be presumed, in para 6 of the judgment the citations relied on behalf of the accused were also discussed. Discussing the judgments of the Punjab and Haryana High Court in 1988 Cr. L. J. 528 (Hakam Singh v. Union Territory, Chandigarh), of the Himachal Pradesh 'iigh Court in 1989 Cri. L. J. 1412 (Stafa of H. P. v. Sudarshan Kumar), of the Rajasthan High Court in 1990 (I) Crimes 246 (Chhoteylal v. State of Rajasthan), of the Karnataka High Court in 1991 Cri. L. J. 1392 (Smt. Zubeda Khatoon v. The Asst. Collector of Customs, legal, Bangalore), of the Gauhati High Court in 1991 Cri. L. J. 696 (Md. Jainulabdin v. State of Manipur) and of the Delhi High Court in 1991 Cri. L. J. 2899 (Raju Parahad Gupta v. The State) it was pointed out that all such decisions held the-same Sections as absolutely mandatory and set aside convictions under the Act because of their non-compliance taking the view that the non-compliances caused ipso facto prejudice to the accused.

40. The question of the effect on non-compliance of the provision only on the arrest and detention was not dealt with in any of the cases. The question was discussed only in a single Judge decision of the Madhya Pradesh High Court, i. e. 1991 Cri. L. J. 1991 (Salamat Ali v. The State) where the learned Judge considering the matter in the background of Arts. 21 and 22(1) of the Constitution held that arrest of a person in non-compliance with the provisions and his subsequent detention are invalid and furnish the accused a valid ground for bail. The learned Judge however took the view of Section 57 'of the Act (wrongly printed as Section 52) to be directory and was of the opinion that deviation from it may affect the reliability of the prosecution case but certainly cannot have the effect of throwing the prosecution case over board.

41. Thus a resume of the pronouncements would show that while all the Courts regard the provisions as mandatory, yet there is divergence of opinion as to the effect of their non-compliance, with some holding the view that the non-compliance does not automatically entitle a conviction to be reversed as acquittal but that in some cases where there is no justification for the departure from the compliance or there is a deliberate action in disregarding the provisions, a doubt may be cast upon the very prosecution case so as to earn an acquittal, whereas others have held that non-compliance with the provisions raises a presumption of prejudice in favour of the accused and hence entitles him to be acquitted. The only decision of the Madhya Pradesh High Court relates to the legality of the arrest and detention' and holds them to be illegal in the background of Arts. 21 and 22(1) of the Constitution but confines the relief to an eligibility of the accused to move to, for bail Taking stock of the divergent views of the decisions, I had occasion to observe :

'There is no gainsaying the fact that an illegal arrest or detention would not itself make the conviction ipso facto void. Arrest and conviction are different incidents independent of each other and without necessarily having a casual link and hence there is no automatic process of invalidation of a conviction merely because an arrest is found to be without the sanction of law.'

The position that inductively emerges is that where arrest and detention become illegal because of unlawful deprivation of personal liberty violating the guarantee under Arts. 21 and 22(1) of the Constitution entitling a person to demand his freedom, yet such freedom granted to him would neither put an end to the investigation of the case nor would prevent him being put on trial on the evidence otherwise collected. The man has stilt to answer the charges which evidence establishes against hint and there is also no bar to again apprehend him if the arrest becomes necessary and is done in accordance with law.

42. The legal position being thus, it has to be tested in its application to the Sections in the crucible. It has been seen of almost a near unanimity of the different High Courts to regard the provisions of Sees. 42, 43(b), 50, 52 and 57 as mandatory, but differing as regards the effect of their non-compliances on the conviction for offences under the Act. The traditional concept of the provisions of a statute being either absolutely mandatory or directory may not fit in under all circumstances. There may be provisions which may admit of a dual nature of being both mandatory and directory, so that while non- compliance with the provisions by the officers charged with the function must be rigorously enforced, yet non-compliance would net void a conviction only because of that. In Bidyadhar's case I had occasion to observe :

'While considering whether certain provisions of a statute are mandatory or directory, the prime question arising for decision is the legislative intention behind the statute as a whole and of the provisions concerned. The Court when seized with such question is to interpret the provisions in a manner which advances the intention of a statute rather than retard it. It is far too well- settled in law that a provision is not mandatory merely because the word 'shall' is used in connection with it nor does it become directory if the word 'may' is used instead. The meaning of the provision has to be gathered from the context in which it is used. Generally speaking, when the statute creates public duties to be performed, the provision is directory in nature though it is not directory in the sense that the authorities charged with performance of the duties can avoid the same at their discretion. While such provisions are required to be mandatorily observed by the authority who is charged with the responsibility to carry them out, yet the outcome of the non-compliance of the provisions would not necessarily nullify the action or the result of it in an unqualified manner and that there may be circum- stances which may be pleaded in defense of the deviation. To that extent a provision may, while be of limited mandatory nature, yet be directory. When such is the case, an act done in contravention of the mandatory provisions would ordinarily be illegal unless sustainable reasons can be advanced to justify the departure before judicial, scrutiny. There may still be also cases where even if the provisions are regarded as mandatory and the public servant must necessarily be compelled to observe the same, yet it will be directory in the sense that the violation of the provisions would not ipso facto vitiate the proceeding unless, either prejudice or failure of justice is shown to have been caused as a result of the violations. There however may be also cases, where the provision is of absolute mandatory nature so that its violation is irremediable or is per se prejudicial to the person for whose benefit it is made. In such cases the action has to be struck down irrespective of the question of justification or prejudice.'

In a society governed by the rule of law, an executive arbitrariness transcending the fundamental rights of the citizens cannot be countenanced for a minute. Each authority charged with duties under the laws sanctioned by the Constitution which is the law given by the people unto themselves must be held to be bound by the procedures commanded by the statute which creates the duties and vests responsibility in them to carry them out. When the charge is of violation of a funda- mental right guaranteed under the Constitution, or indeed of a statutory right,a peremptory answer that the provisions are merely for the guidance of the officers and that they have no mandatory sanction is disagreeable to our constitutional ethos. A legal sanction of such permissiveness to executive vagaries would make deep inroads into the vitals of the constitutional guarantees of a citizen and would leave him helpless and mute spectator unless proper check is applied to strike a balance between the need of the administration and of the society vis-a-vis the dignity of an individual citizen. Lawfully, the function falls to the higher judiciary to discharge, its existence being justified mostly for the purpose. It is for such reason that conclusion has to be reached that a deviation of the provision of law in effecting the arrest and continuing the detention would make the actions declared illegal justifying a restoration of the status quo ante unless the authorities carrying out the functions satisfy the Court of there having been circumstances which necessitated the departure. It may be that though the law requires the information to be recorded in writing before proceeding for search, seizure and arrest, yet such recording becomes impossible because of the very urgency of the situation or that when the search and seizure are to be made in presence of the witnesses, yet it is not possible to be done because of the witnesses declining to assurance such roles or they being not available. These are but instances by way of illustrations only.

43. I am in complete agreement with my learned brothers regarding the anxiety with which Parliament enacted the Act. There is just no denying the fact that drug menace is not only a national danger but has also become an international catastrophe. What I observed in Bidyadhar's case in para 8 of the judgment while dealing with the nature of the provisions of Sections 42, 43(b) 50, 52 and 57 can aptly be quoted here as regards the necessity of the statute, its objects and intention, the drastic provisions made to tackle the menace and the safeguards provided by the very statute against unmerited or mala fide prosecutions:

'The Act is comparatively a recent statute enacted with the object of meeting the unprecedented challenge of illicit traffic in narcotic drugs and psychotropic substances. Drug abuses have been recognised as the single most powerful social offender in recent times creating unimaginable extent of damages on frighteningly large sections of the society. Us effect on the people addicted to it is catastrophic for which international conventions as to traffic on such drugs and substances have come into existence. Keeping such measure in view, the measures in the statute have been made specially rigorous with provisions for minimum sentences which are often very harsh, as also compulsory fines. Most of the offences are punishable with a minimum sentence of imprisonment for ten years which may extend to twenty years and the minimum fine Rs. 1 lakh which may extend to Rs. 2 lakhs or more. Section 31. A even provides for death penalty. Such provisions in the statute communicate the message of the legislature in no uncertain terms that the Act is intended to be very severe in its application. While such is the mission of the statute, yet adequate safeguards have bean made in the statute itself to prevent abuses of the provisions so that innocent people are protected from harassment either as a mala fide move or as the action of a zealous public servant. So far as search, seizure and arrest are concerned, Chapter V makes provision for these safeguards laying down the code of procedure for them. The provisions require that whenever any search, seizure or arrest is to be undertaken on the basis of any information has to be recorded in writing. Even where the act of such seizure or arrest is undertaken because of entertainment of belief by the public servant including a police public; officer, the law though does not require expressly such reason for belief to be recorded, yet it is wholesome that the grounds for such belief are recorded in a contemporaneous record or if that is not possible, the officer concerned must be in a position to show when the question is agitated, that he had in fact reasons to believe of the offence to have been committed or was about to be committed. Section 50 read with Section 43(b) is again another such protection available to the person to be searched. The arrest which the officer is authorised to make Under Section 43(b) is not passible until the person has been detained and searched and drugs or psychotropic substances are recovered from his possession. Section 50 gives the person about to be searched the right to demand the search to be made before a gazetted officer of the department mentioned in Section 42 or before the nearest Magistrate, When such a right is to be exercised, obviously the search Under Section 43(b) cannot be carried out until the man is taken before the gazetted officer or the Magistrate. Again obviously the demand by the parson that he be searched before a Gazetted Officer or a Magistrate cannot be expected to be by a written document. Even if a written requisition is made by the person concerned in some cases, the officer about to conduct the search may not receive the same if it is otherwise inconvenient to him. As a matter of fact, it has to be readily conceded, considering the level of legal consciousness of the ordinary citizens, that most of them would not be aware of such right being, available to them. As such, to give full effect to the provisions of Section 50 read with Section 43(b), 1 find myself in agreement with the view that Section 50 casts a duty on the officer intending to conduct the search to inform the person to be searched of his right to be taken before a gazetted officer of the departments mentioned in Section 42 or to a nearest Magistrate and that there must be contemporaneous record to show such information to have bean given to the person concerned and his acknowledgement obtained if not it is not otherwise an impossibility. Even the view taken by the Himachal Pradesh High Court in 1989 Cri. L.J. 1412 (supra) that as far as practicable the offer Under Section 50. is to be made in presence of two independent gentlemen and tespe'table witnesses of the locality should be the practice to be followed, and in the event of any breach, the onus would been the prosecution to prove that association of such witnesses was not possible in the facts and circumstances of a particular case. Similarly the provision of Section 52 as also Section 57 are Intended as protection against illegal arrest and continued detention. While all such provisions are mandatory, it is to be seen as to what is the effect of their non-compliance on convictions on the one hand and on arrest and detention on the other hand. So far as the first is concerned, it can be unhesitatingly said that merely because the provisions are not observed, the conviction would not fail as an automatic consequence as the conviction would be based upon evidence adduced during the trial as to the offence committed by the accused. The legality in the search, seizure and arrest would not necessarily vitiate the conelusion reached regarding the culpable conduct of the accused unless it is shown that non-compliance with the provisions makes the very prosecution case untruthful or doubtful or that the accused has been seriously prejudiced in the trial by reason of such non- compliance. The law was declared by the Supreme Court in AIR 1956 SC 196 (H. N. Rishbud and Anr. v. State of Delhi), where the Court held that it does not necessarily follow that an invalid investigation nullifies the cognizance of the trial based thereon and that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognisance or trial. In AIR 1963 SC 822 (Radha Kishan v. State of Uttar Pradesh) where the Court held that if .the search is illegal it can be resisted by the person whose premises is to be searched and that because of the iilegality of search, the Couit may be inclined to examine carefully the evidence regarding seizure but beyond these two consequences no further consequence ensue and the seizure of the articles is not vitiated where the evidence of the prosecution regarding the fact of seizure is accepted. AIR 1972 SC 958 (Khandu Sonu Dhobi v. State of Maharashtra) where the Court decided that where the trial of the case had proceeded to termination, the invalidity of the proceeding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused, has settled the position of law in that regard'.

44. It however becomes necessary to make a special mention of Section 50 as to whether the section postulates an information to be supplied to the person about to be searched, regarding his rights Analysing the two Sections 43(b) and 50,it is seen that a search Under Section 43(b) is incapable of being carried out unless the provisions of Section 60(1), wherever the occasion arises, ate complied with, namely, that before any search is conducted of a parson he has to be taken before the nearest gazetted officer at the departments mentioned in Section 42 or to the nearest Magistrate, if he so requires, and he may be detained until he can be brought before the required authority and that such authority when the person is brought before him, if he sees no reason for the search, shall discharge him or otherwise shall direct the search to be made. Now how is this requisition to be made by the person to be searched 1 if the person is sufficiently literate and is conscious of his rights, he may make the demand by writing. 1 can well imagine that an over-zealous officer rnay not receive the requisition at ail and make no mention that a requisition had been made to exercise the rights Under Section 50 (1). If the requisition is made orally, it is easy to visualise that there may not be any heed paid to it. When such may be the case with literate and educated persons, the plight of an illiterate man can well be imagined, in 99 out of 100 cases such a person would not be even aware of his right. much less make a demand and that otherwise even if he is aware of his right and makes a demand, it may very well be pooh-poohed away by the officer concerned. The very inequality of the situation of an illiterate or poor person being pitted against an officer with all his official might well make the situation sufficiently damaging and intimidating to demand exercise his right in a real manner. -I am tempted to quote a famous poet of this land while describing the might, of the police Late Redhanath Bay in his famous poem 'Darbar' wrote :

'ANA BOLE MUHIN ATAI POLISA'

BINA MEGMHE SRUJI PARAI KUILISA'

(Another states that I am the police and I can create thunder even though: the sky is dry.)

It is of course true, that under the 'Act, officers other than the pollice arc also empowerd to make the search and the arrest, but even then, the position regains the same. Can It. be the intention of the lenisiature to make the very safeguard provided by it to become a meaningless illusion, impossible and impracticable to be translated into reality Even leaving aside the case of a lesser one, the provisions of Sections 42, 43 and 60 give ample scope to an offcer to create a very black picture for an otherwise well established person .in the society by merely purporting to find narcotic drugs or psychotropic substances in his possession. Supposing a small amomt of the substance is put in the pocket a person by an over-zealous or malicious officer and then a search is to be made, the man would be defenceless if the safeguards as provided Under Sections 42, 43(b), 50, 52 and 57 are not available to him. It is for these reasons that the interpretation that Section 50(1) in reality contemplates an information to be given by the officer to the person about to be searched of his right to demand of being taken to a gazetted officer or a Magistrate commends itself to me. It was held by the High Court of Himachal Pradesh in 1989 Cri. L. J. 1412 (supra) that there is no conceivable reason as to why the designated officer should shrink from informing the person to be searched of his right to be searched before a gazetted officer or a Magistrate and that rather the officer should, as far as practicable, make the offer in question to the person in presence of two independent and respectable witnesses of the locality and if he fails to do so, onus would be on the prosecution to prove that association of such witnesses was not possible in the facts and circumstances of a particular case. I agree with such view as otherwise, I apprehend, the guarantee held out Under Section 50(1) will be reduced to meaningless paper formality.

It is true that Section 50(1) of the Act does not say in actual words that the officer desiring to conduct the search must inform the person to be searched of his right of demanding that he be first taken before a competent officer or a Magistrate and that if he makes such a demand his search shall not be made until his request has been complied with. But such a meaning of the provision of the Section is obvious beneath the surface. It is an established principle of interpretation of statute that the interpretation must not only be textual but also be contextual. While the text is not to be violated, yet it has to be understood in the manner, so as to bring out the real meaning in the context in which it is enacted. In the words of Justice O. Chinnappa Reddy in AIR 19S7 SC 1023 (Reserve Bank of India v. Peerless G. F. and I. Co. Ltd.) :

'One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.'

In the changing pattern of the new society which has taken birth after the end of the colonial rule, law as the developing organ ensconcing the whole panorama of social development in different aspects is to be con stantly geared to meet the changing pattern of the demands of the society as well as of the individual to strike a harmonious accord between the two and as necessary corollary the interpretation of law must be made to forsake the tradition-bound concept of strictly literal and lexicographical meaning and dive deeper to reach the substance of the legislation, the context in which it is made, the mischief which it intends to avoid and the purpose which it seeks to achieve. Justice Shetty in AIR 1988 SC 1883 (Kehar Singh v. State (Delhi Administration) observed :

'In the past, the Judges and lawyers, spoke of a golden rule, by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation.

During the last several years the 'golden rule' has been given a go-by.'

Pointing out the expanding horizon of interpretation of constitutional law to inject respect for human rights and social conscience in the corporate structures Justice Bhagwati observed in AIR 1988 SC 1986 (M. C. Mehta and Anr. v. Union of India and Ors. ) :

'It is through creative interpretation and bold innovation that the hurnan rights jurisprudence has been developed in our country to a remarkable extent and this forward march of the human rights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists'

Again Justice Sabyasachi Mukharji observed in AIR 1987 SC 222 (S. P. Jain v. Krishna Mohan Gupta) :

'We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd.'s case (AIR 1377 SC 1 569) that legislative futility is to be ruled out so long as interpretative possibility permits. Residantiality depends for its sense on the context and purpose of the statute of the project promoted.'

Section 96(2)(b)(ii) of the Motor Vehicles Act (4 of 1939) made the provision that no sum shall be payable by an insurer in respect of judgment passed against persons insured in respect of third party risks if intei alia there is a breach of a specified condition of the policy excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The case before the Supreme Court arose in AIR 1987 SC 1184 (Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan) wherein contention was advanced that in view of the exclusion ciause in the the policy prohibiting driving of the vehicle by other persons not holding the driving licence, the insurer has no liability to pay. Nagativing the contention and overruling a decision of this Court in AIR 1982 Ori. 70 (O. S. C. T. C. v. Dhumali Bewa ) the Court decided ;

'On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep hencur, and fulfil the promise and he himself is net guilty of a deliberate breach.'

Expounding the reason, the Court observed :

In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same'.

Section 50-does not prohibit that an officer about to conduct search shall not inform the person of his sight. Hence an interpretation that such a right to be informed is inherent in the provision does not make any violation of the words in the Section. On the contrary it advances the very intention of the legislature, as he has seen earlier. Rather, without such action being taken, the right guaranteed Under Section 50 becomes a meaningless formality, a right created in Illusion and frustrates the very' object of the statute.

45. The condition of most of the people of our country regarding their literacy and the level of their legal awwness was commented upon In eioquant words by Justice Btizgwati, in AIR 1981 SC 9 (Khatri v. State of Bihar) in the context of Art. 21 guaranteeing a person of free legal assistance if circumstances of the case and the needs of justice so raquire by saying :

'But even this right to free legal services would be illusory lor an indigent accused .unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledgs that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not awars of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask, for free legal services.'

Could it be said that the considerations would be different only because a man is accused of an offence under the N. D. P. S. Act Again could it be said that even though the person concerned has a right to be informed by the Magistrate or the Sessions Judge of his right to free legal aid, yet he has no right to be informed of his right to be taken before a Magistrate so as to complain of an illegal or harassing search Does his legal awareness remain at the satisfactory lovel when the search is conducted by an officer or the police but falls below the standard when he is brought before a Magistrate or a special Court To me such position appears to be incongruous and inconsistent.

46. In the case of (Sheela Barse v. State of Maharashtra) AIR 1983 SC 378 the Supreme Court while considering the question of custodial violence to women prisoners whilst confined in police lock up laid down certain guidelines for ensuring protection against torture and mal-treatment of women in police lock up and also of prisoners in general and amongst the directions it was said ;

'Whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail The Maharashtra State Board of Legal Aid and Advice will forthwith get a pamphlet prepared setting out the Iegal rights of an arrested person and the State of Maharashtra will bring out sufficient number of printed copies of the pamphlet in Marathi which is the language of the people in the State of Maharashtra as also in Hindi and English and printed copies of the pamphlet in all the three languages shall be affixed in each cell in every police lock up and shall be read out to the arrested person in any of the three languages which he understands as soon as he is brought to the police station. '

Such a direction was given by the Supreme Court as being within the ambit of Art. 21 of the Constitution so as to make the right guaranteed to become real even though Section 50 of the Criminal Procedure Code did not make such provisions. In AIR 1983 SC 454 (Bhagat Ram v. State of Himachal Pradesh) the Supreme Court held while interpreting Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 :

'In fact, justice and fairplay demand that where in a disciplinary proceeding the department is represented by a Presiding Officer, it would be incumbent upon the Disciplinary Authority while making appointment of a Presiding Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and the right of the delinquent to take help of another Government servant before the commencement of inquiry. At any rate the Inquiry Officer at least must enquire from the delinquent officer whether he would like to engage anyone from the department to defend him and when the delinquent is a Government servant belonging to the Sower echelons of service, he would further be informed that he is entitled under the relevant rules to seek assistance of another Government servant belonging to department to represent him.'

Though in the case no fundamental right was involved, yet the Apex Court interpreted the rule to such effect in spite of the fact that there was no express words requiring information to be given to the delinquent of his right, only because of the inequities involved in the level of legal consciousness of the delinquent and that of the desciplinary authority as well as the. presenting officer.

The same considerations impelled Justice R. C. Patnaik, in 70 (1990) CLT 358 (Elanath Sahu and Anr. v. State) to say :

'What is the role of the judiciary when an accused unrepresented by a lawyer is produced before the Court It is common knowledge that 50 per cent of the people live below the poverty line and 70 to 80 per cent of the people living in villages are illiterate, More than that are not aware of their rights conferred upon them by law. There is lack of legal awareness. Even a large mass of the literate people do not know what their legal rights are. Until legal literacy is promoted and economic condition of our poverty stricken people is substantially advanced, the State is under an obligation to provide lagal assistance. That is the mandate of Art. 21 read with Art. 39(1) of the Constitution of India.'

Viewed in this context, the observations made by the Supreme Court in AIR 1986 SC 991 (Suk Das and Anr. v. Union Territory of Arunachal Pradesh) categorically ruling that the fundamental right of an accused for free legal assistance is defeated if he is not informed by the Magistrate or the Sessions Judge that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to free legal assistance at State cost and enquire from him as to whether he wants a lawyer to be provided at State cost would be negation of the fundamental right guaranteed under Art. 21 to him and the trial would become vitiated is not confined to only such situation. The underlying principle is a pragmatic and humanitarian approach to the obvious inadequacy and disadvantage of the majority of people of the country while facing charge from a superior authority. In the case the Supreme Court again observed:

'Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred Upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivatian of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights.'

Could it be said that these observations are inapplicable to an ordinary man in that street, say a rickshaw puller when he is confronted by an authorised officer demanding a search of his person as a possible carrier of narcotic drugs or psychotropic substances The answer must be plainly in the negative as otherwise the very observation of the apex Court becoming applicable to one set of persons and not to others almost similarly situated would verily become incongruous which could have been least intended. It hence has to be held that Section 50 enjoins duty upon the officer to inform the person of his right and make a contemporaneous entry in his records of the tacts of the person having been informed as also his reaction on such information given and whether he has carried out the request of the person concerned if he exercises his right under the Section. The records should also say whether the offer was mada in presence of witnesses. While this must be the general rule, yet its exception may also be contemplated, because justifiably there may bo cases where observance of the procedure becomes impossible, but then in such cases the officer must be in a position to show, either by the records or through evidence if his action is challenged, that he had justification for his conduct and the matter would thereafter be for consideration before the Court.

Having come to these conclusions and being impelled by the considerations set out earlier and in view of the gravity of the question requiring an unambiguous and authoritative pronouncement, I refer the questions as raised and discussed in the earlier paragraphs and particularly the correctness of the decisions in Bidyadhar and Satyabrata's cases (supra) to the Hon'ble the Chief Justice for constitution of an appropriate Bench to decide the issues.

47. While concluding this aspect of the case a reference is also nece- ssary to be made to another Single Judge decision of this Court, Criminal Misc. Case No. 271 of 1992 (Bula Sethi v. State) decided on 10-3-1992 wherein Bidyadhar's case (supra) has also been distinguished by the learned judge holding that the case has to be confined to its own facts. The learned Judge was of the view that in deciding the Bidyadhar's case (supra) the decision of the Supreme Court in AIR 1988 SC 922 (supra) and (1391) 4 OCR (SC) 129 : AIR 1991 SC 558 (supra) were not brought to the notice of the Court. Since the scope, ambit and implication of law bearing on the issues have been dealt with previously. it is not necessary to go into details again except to observe that in Bula Sethi's case (supra) the learned Single Judge has proceeded on the same assumption that the Bidyadhar's case was one in which the issue involved was the powers of this Court Under Section 482, Cr. P. C. vis-a-vis Section 37 of the Act to grant bail to an accused. With great respect, it is to be said that the distinction that the application was not treated as an application for bail but as one seeking quashing of the arrest and detention and that the petitioner in that case was not enlarged on bail but his arrest and detention were quashed as being in violation of his fundamental right was not kept in view. Besides AIR 1988 SC 922 (supra) was a case where their Lordships of - the Apex Court were dealing with the question regarding the High Court's jurisdiction under the Terrorist and Disruptive Activities (Prevention') Act, 1987 in Section 20 of which the jurisdiction of the High Court is completely excluded and as such the High Court could not have granted bail even in exercise of the powers Under Section 482, Cr. P. C. The decision in Bula Sethi's case (supra) having not considered these aspects of the questions, has to be held pet incuriam.

48. Now the questions 2 and 3 formulated by Justice Pasayat, namely the maximum period of remand under the provisions of Section 36-A(1)(b) permissible, and whether after the expiry of the period of such remand, the person involved in the offence under the Act becomes entitled to automatic bail. To appreciate the questions it is necessary to examine Section 36-A vis-a-vis the provisions of Secs. 167 and 309, Cr.P.C. Section 36-A begins with a non obstante clause purporting to provide exceptions to the Code of Criminal Procedure, 1973. The different clauses of the section provide different kinds of exceptions to the provisions of the Code. Sub-section (1)(a) provides exception to Chapter III of the Cr.P C. specifying the powers of the Court to try offences and says that despite what has been provided for in the Code, all offences under the Act shall be triable by the special Court constituted for the area. Sub-section (1) (b) provides the exception to Section 167 Cr. P. C. to the extent that when forwarding of an accused is made to a Magistrate Under Section 167(2) or Section 167(2-A), the period of detention authorised by the Magistrate shall not exceed fifteen days as a whole if he is a judicial Magistrate and seven days as a whole if he is an executive Magistrate. Sub-section (I) (c) vests in the special Court the powers of a Magistrate Under Section 167, Cr.P'.C. and Sub-section (1)(d) provides exception to Section 193, Cr.P.C. authorising the special Court to directly take cognizance of an offence without the accused being committed to it for trial. The provisions of Section 36-A being in the nature of an exception to the Cr.P.C, it has to be interpreted as applying and holding the field only so far as the exceptions are concerned but not abrogating the general law in any other manner. In O.J.C. No. 2756 of 1931 (Ashok Kumar Mahapatra v. State of Orissa and Ors. ) decided on 15-5-1992 it was observed, considering the scope of an excepting provision vis a-vis the substantive provision ;

'An exception grafted to a substantive provision makes the areas of operation of both the substantive provision and the exception exclusive to each other and there is an implicit prohibition that neither should encroach upon the territory of the other. It is to be understood that when a provision is excepted it means that the substantive provision is excluded only to that extent but is subject to no other exception and all such other exceptions are excluded. It hence means that the provisions of the substantive provision apply to all facts and circumstances except that covered under the exception and that corwerrwiy there is a prohibition that the substantive provision would not be enforced on the facts covered by the exception. The exception is a part of the substantive provision itself and hence is by itself a substantive provision Thus since the direction is in the substantive provision and the exception forms part of the substantive provision, the exception forms a prohibition to the substantive provision to be operative under the circumstances covered under the exception and it also operated as a prohibition for the exception to operate in respect of the circumstances covered under the non-excepted part of the substantive provision. The prohibitions are thus exclusive to each other and are to the effect that on the one hand the positive direction is coupled with a prohibition not to implement the direction in respect of the excepted categories and on the reverse the exception also contains a prohibition not to extend the exception anywhere beyond what is specifically excluded.'

49. On a plain reading. Section 36-A(1)(b) only provides an exception to Section 167(2) and (2-A) making special provisions in respect of matters provided under those sub-sections. The whole of Section 167 Cr.P.C. is not abrogated by virtue of the provisions of Section 36-A(1)(b). As a matter of tact, that Section 167 Cr.P.C. continues to apply becomes more clear when reference is made to Sac. 36-A (1) (b) which states that powers of a Magistrate Under Section 167, Cr.P.C. are reserved for the special Court. What has been provided in Sub-section (1) (b) of Section 36-A is a different mode as to how the accused under the Act is to be dealt with when he is forwarded to a Magistrate either under Sub section (2) or (2-A) of Section 167, Cr.P.C, The provision says that when an accused is so produced, the authorised detention in such custody as the Magistrate thinks fit can be for a period not exceeding fifteen days as a whole if he is a judicial Magistrate or seven days as a whole if he is an executive Magistrate with the rider that the Magistrate if he conisders when either a person is produced before him or before the expiry of the directed period of detention or the expiry of the maximum period of permissible detention that detention is unnecessary, is to forward the accused to the special Court having jurisdiction.

The provision may give rise to four contingencies :

1. The Magistrate may consider the detention of the accused to be unnecessary when he is produced before him,

2. If he has remanded the accused to custody for any period lesser than fifteen days or seven days, as the case may be, and before expiry of the period considers his further detention unnecessary,

3. The Magistrate considers after expiry of the maximum period of permissible remand the further detention of the accused unnecessary, and

4. The Magistrate considers after the expiry of the maximum period of permissible remand that his further detention is necessary.

50. So far as the first and second situations are concerned, the Magistrate even though considers the detention of the accused unnecessary, yet has no authority to release him on bail but must necessarily submit the records to the special Court. The special Court is vested, under Clause (c) of Sub-section (1), with all the powers of a Magistrate Under Section 167, Cr.P.C. and hence may remand the accused for a period of ninety days or sixty days, as the case may be, unless he directs his release on bail. After expiry of the period of remand as can be authorised by the special Court, the provision of the proviso to Section 167(2),Cr.P.C. becomes applicable making the accused entitled to be released on bail by the special Court. But though such a right arises in favour of the accused, his bail yet cannot be granted unless the provisions of Section 37(1)(b) are satisfied, a proposition which I shall deal with a little later.

51. So far as the third situation is concerned, i.e. where the Magistrate is satisfied after the expiry of the permissible period of maximum remand that his further detention is unnecessary, the same right that arises in favour of the accused before the special Court after the expiry of the maximum period of reinand under the proviso to Section 167(2), Cr.P.C. arises before the Magistrate making the accused entitled to bail, but again the question of grant of bail has to be conditioned in accordance with Section 37(1)(b) of the Act.

52. So far as the fourth situation is concerned, the position remains the same, namely, that even though the Magistrate has no power to direct, so far as Section 36-A is concerned, any further remand, yet he cannot direct his release except by way of bail and that he cannot grant because of his opinion so that his further detention is necessary and hence cannot reach the satisfaction Under Section 37(1)(b) that either the accused is not prima facie guilty of the offence alleged or that if released, he would not commit any offence again.

53. This brings us to the question as to whether the accused becomes entitled to automatic bail on expiry of the maximum period of permissible remand either before the Magistrate or before the Special Court or whare the Special court considers, in agreement with the Magistrate that even before the maximum period of authoable remand the detention of the accused is not necessary. The answere has to be in the negative in no certain terms. It has been seen that Section 36-A(1)(b) only carves out an exception to the applicability of the provisions of Section 167 (2) or (2-A) and that the provision of Section 167 otherwise continues to apply. The proviso to Section 167(2) provides that where the maximum period of authorisable remand is over, the accused shall be released on bail if he is prepared to and does furnish bail. As such a person accused under the Act would have otherwise become entitled to bail by application of the proviso but as it is a question of grant of bail and the distinction has to be kept in view that release on bail is not the same thing as quashing of the detention an 1 arrest, the bail must be conditioned, apart from other conditions, by the conditions set out Under Section 37(1)(b) which also begins with a non obstante clause and overrides all other provisions of the Code directing that no bail shall be granted unless two satisfactions are reached by the Court, namely, (1) that the accused is not prima facie guilty of the offence and (2) that if released he would not commit any offence while on bail. Whatever doubt was there legarding the scope of Section 37(1)(b) of the Act and the powers of the High Court Under Section 439, Cr.P.C. for grant of bail, has been set at rest by decision of the Supreme Court in AIR 1991 SC 558 (Narcotics Control Bureau v. Kishan Lal and Ors. ) laying down that the powers of the High Court to grant bail are subject to the limitations of the amended Section 37 of the Act. Thus the net conclusion is that even if the provisions of Section 167, Cr.P.C. continue to apply to an accused produced before a Magistrate and is excepted only to the extent of the provisions of Section 36-A(1)(b), yet the accusea cannot be released on bail unless the further conditions Under Section 37(1)(b), are satisfied.

54. Because of such conclusions, the question that legitimately arises is if Under Section 3-A the power of the Magistrate is restricted to detention for fifteen days only or to a maximum period of ninety days by a special Court and yet Section 37 bars enlargement of the accused on bail thereafter unless the conditions therein are specified, how the accused is to be treated and what are the powers of the Court, bo it of the Magistrate or of the special Court to remand him to custody and if such power is available to vvhat custody the accused must be remanded. The necessary conclusions of the accused being not entitled to bail unless conditions Under Section 37(1)(b) are satisfied is that his freedom is curtailed and he is to continue in custody. It however must be made clear that such continuance in custody, is not by way of any remand by the Magistrate Under Section 309, Cr. P. C. as such a question will arise only after cognizance of a case has been taken. The custody is also not in pursuance of any power of remand Under Section 167, Cr, P. C and 3ec. 36-A of the Act. The detention in custody under such circumstances is only by the operation of the statute directing that notwithstanding the accused becoming entitled to bail under the priviso to Section 167(2), Cr. P. C, he shall yet continue in custody until the Court is satisfied Under Section 37(1)(b) that his release should be granted. The provision of Section 37(1)(b) may be compared with Explanation-i to the proviso to Section 167(2), Cr. P. C. which itself also applies to Section 36-A, namely, the provision that even if a person is entitled to bail, yet he can be released provided he is prepared to and does furinish bail and is otherwise to be detained in custody as long as he does not furnish bail. Thus under the very provision of the proviso to Sac. 167(2) the law while decreeing a right in,favour of the accused that lds maximum period of detention is to be limited to 'ninety days or sifty days, as the case may be, yet provides that after the expiry of the maximum period he shall continue in custod if he does not furnishings ball Such detention in custody is by operation of law.The provision equally applies to a person arrested and produced before a Magistrate under the Act and even if the Magistrate or the special court directs his release on bail holding that the conditions of Section 37(1)(b) are satisfied, yet the accused must remain in custody if he is not prepared to furnish bail. Section 37(1)(b) is a similar additional provision that even if his maximum period of detention is over or such period of detention is considered unnecessary by the special Court or the Magistrate, yet he shall continue to be in custody unless the stipulations under that provision are satisfied. The detention is under the dictates of the statute and is not dependent upon any order of the Magistrate of of the special Court.

55. The next question is if the accused is to remain in custody beyond the maximum period of authorisablle detention or is directed to remain in custody beyond the initial period of fifteen days as a whole or seven days as a whole as the case may be, in which custody he is to continue. The answer is simple. Section 37(1)(b) limits the authority of the Magistrate to detain an accused in such custody as he thinks fit not exceeding fifteen days as a whole if he is a judicial Magistrate and seven days as a whole if he is an executive Magistrate. Thus within the period of fifteen days or seven days, as the case may be, the respective authorities have the option to detain the accused either in police custody or judical custody. Biuonce the maxium period of fifteen days or seven days is over, the Magistrate would have no authority to direct detention of the accused in police custody and hence the detention must necessarily be in judicial custody because of the applicability of the Provision of the proviso to Section 167(2), Cr. P. C. which directs that after the period of fifteen days the direction for detention of the accused in custod must be 'otherwise than the custody of the police'. The question was considered in AIR 1986 SC 2130 (Chaganti Satyanarayana and Ors. v. State of Andhra Pradesh) where their Lordships made the law clear in paras-15-and 17 of the judgment. The law was again reiterated by the Supreme Court in (1992) 3 SCC 141 (Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni) where the Court explained, dealing with the provisions of Section 167, Cr. P. C. that the Judicial Magistrate can in the first instance authorise the detention of the accused in either police or judicial custody from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice versa. After the expiry of the first period of fifteen days the further remand during the pariod of investigation can on!y be in judicial custody Police custody if found necessary can be ordered only during the first period of fifteen days. If further interrogation is necessary after the expiry of the period of first fifteen days, there is no bar for interrogating the accused in the judicial custody during the periods of 90 days or 60 days. The detention in police custody is ganerally disfavoured by law. The whole scheme undarlying Section 167 is intended to limit the pariod of police custody in order to protect the accused from the methods which may be adopted by some over-zealous and unscrupulous police officer. There cannot be any detention in the custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.

The exposition of the scheme of Sec 36-A of the Act being as it is/the correctness of the decision in (1991) 4 OCR 276 (Sauti Jena and Anr. v. State) may be considered. In that case I had taken the view that Under Section 36-A(1)(b) the pariod of authorisable detention by a Magistrate of an accused in the case had been abridged than that of the provision Under Section 167(2), Cr, P. G. to a maximum period of fifteen days or 7 days depending upon the fact whether the Magistrate is a Judicial or an Executive one and that apart from such abridgement of the period of detention all considerations which apply in law to the question of enqusipment of bail under the proviso to Sec 167(2) become appiv-atv(sic)person forwarded under the Act to the Magistrate after expiry of 15 days or 7 days from the date of remand as the case my be. Holding such view the case had been remanded to the Magistrate with the direction to the petitioner to move for bail before him with the further bisection that unless the Magistrate had referred the matter to the special Court under the proviso to Section 36-A(1)(b) the ptitioner was to be released on bail. In deciding the case the provision of See. 37(1)(b) was not taken note of. The view taken that after expiry of the period of 15 days or 7 days, ate the casa may be, the accused is to be ipso facto released on bail, as an absolute proposition of low, is one which is not legally correct though it was correctly viewed that Section 167, Cr. P. C. had been excepted only to the extent is was provided difierntly in Section 36-A(1)(b). That being so, it must be taken that Sauti Jena's case (supra), to that extent was not correctly decided and does not lay down good law.

Having seen the true meaning of Section 36-A(1)((b), an obvious question which requires answer is to which Court, in the absence of a special Court constituted, the Judicial or the Executive Magistrate is to forward the accused when such forwarding becomes necessary under the Section. The fact remains that the State Government has not yet constituted special Courts as is required to be done Under Section 36 of the Act. It is the submission of the learned counsel for the petitioners that the special Court being not constituted, there is no question of an accused being forwarded to it and that as such neither the powers of the Magistrates under the proviso to Section 36-A(1)(b) nor the powers of the special Court Under Section 36-A(1)(c) are exercisable for which reason the accused must be released 6n bail by the Magistrate when his detention is considered unnecessary by him. The argument does not serve the purpose of the petitioner to any great extent as even if the provisions are interpreted that way, yet they cannot be released on automatic bail as grant of bail would still be subject to the provisions of Section 37(1)(b). But apart from it, on a closer look at the scheme of the Act, the situation does not appear to be without any redeeming feature as is made out to be Section 36 provides for constitution of special Courts. The explanation to Sub-section (1) (a) says that it is only a Sessions Judge or an Additional Sessions Judge who can be appointed as a Judge of the Special Court, a fact which is again re-stated in Sub- Section (3) of the Section 36-(1)(d) authorises the special Court to take cognizance of the offence directly upon a police report or upon a complaint by an officer of the Central Government or the State Government authorised in that behalf. This provision was obviously inserted to cure the limitation of Section 193, Cr.P.C. prohibiting a Sessions Court to take cognizance of an offence directly unless there has been committal of the case to it by the Magistrate. . Section 36-C makes it clear that the proceedings before the special Court shall be conducted in accordance with the Cr.P.C. and that for that purpose the special Court shall be deemed to be a Court of Session.The cumulative effect of all such provisions is to show that in effect the special Court is a Sessions Court but that it is constituted as a special Court vesting some special power in it so as to secure a more expeditious trial of the cases. It is of course true that the transitional provision, Section 36-D of the Act, do not come into any aid so far as this aspect is concerned as it makes provision only regarding trial of the cases till the special Courts ate constituted, and the proceeding as contemplated before the Magistrate or the Special Court Under Section 36-A (1) (b) or Section 36-A (1) (c) are pre trial stages. All the some, it can hardly be said that the legislature intended to leave an obvious void by not providing for as to how the interregnum period is to be taken care of regarding bail of the accusad until the special Court has been cionstituted. One of the fundamental rules for construction of statutes is to make an endeavour for a harmonious construction so as to advance the purpose of the statute and to avoid a construction which makes the statute unworkable. To achieve such result it is necessary to feel the real heart and soul of th3 enacted provision. Reading the provisions in such context properly reveals the meaning which the legislature intended. Again, an aid to such construction is the mischief rule. i.e. it becomes profitable to know what was the mischief which was intended by the statute to overcome. Judged from such angles it is not difficult to fathom that the real intention of the proviso to Section 38-A(1)(b) is that- even if a 'Magistrate may consider detention of the accused as unnecessary even before expiry of the permissible period of remand, yet he cannot release him even if he purports to record his satisfaction Under Section 37(1)(b) but must necessarily forward the accused to a higher Court which must examine the question in the same manner as the Magistrate was to do, For the purpose it is seized with all the powers exercisable by the Magistrate Under Section 167, Cr.P.C. That being so, the meaning must be taken to be implicit in the provisions of Section 36-A(1)(b) and Section 36-A(1)(c) that till such time the special Court is constituted, the powers under those provisions is to be exercised by the Sessions Judge and that he Magistrate is to forward the accused to it, when necessary, under the proviso to Section 36-A(1)(b).

57. The only question that remains to be answered is the one on which the difference between the two Division Benches arose, i. e. whether during the transitional period of non-ftonstitution of the special Court,the Sessions Court can try a case under the Act without any commitment proceeding first taken before a Magistrate, In other words, the question, is whether the Sessions Court can directly take cognizance of the case upon police report or upon a complaint made by the authorised officer of any department of the State or the Central Government, Section 36-D is the provision bearing upon the question and states that until a special Court is constituted all offences under the Act shall 'notwivasusnding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session'. The provision to Sub-section (1) prescribes that offences punishable Under Sections 26, 27 and 32 may be tried summarily and that the provisions of Sub-section (1) would not require transfer to the special Court of any proceeding in relation to which the cognizance has been taken by the Sessions Judge and that those cases shall be heard and disposed of by the Sessions Court.

58. I am aware of the views of my learned brother that since the special Court is in fact nothing but a Sessions Court and Section 36-A(1)(d) of the Act authorises a special Court to take cognizance without any commitment proceeding, the Sessions Courts are competent to try the cases during the transitional period' without any committal proceeding. I am also conscious of h3ving already held that so far as the provision regarding forwarding of the accused required to be done by the Magistrate Under Section 36-A(1)(b) is concerned, the special Court is the Sessions Court till such time the special Court is constituted. Even so I have been unable to pursuade myself to agree to the meaning assigned to the provisions of Section 36-D read with Section 36-A(1)(d) of the Act. Though a Sessions Judge or an Additional Sessions Judge is to be appointed as a Judge of the special Court, yet a. special Court is not Sessions Court for all purposes. There are obvious differences between the two like the power of taking cognizance, power of trying some offences summarily, the power exercised Under Section 167, Cr.P.C. etc. In AIR 1384 SC 718 (A. R. Antulay v. Ramdas Sriniwas Nayak and Anr.) it was observed :

'......the provisions of the Code have to be applied to the Court of Special Judge in such manner and to such extent as to retain the separate identity of the Court of Special Judge and not that he must either fulfil a role of a Magistrate or a Sessions Court.'

xx xx

'Short of all embellishment, the Court of a Special Judge is a Court of original criminal jurisdiction, As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court'of Session.'

It is hence not proper to hold that a special Court is a Sessions Court for all purposes. As a matter of fact, that special Court is not a Sessions Court is apparent from the provisions of Section 36-C which says that a special Court shall be deemed to be a Court of Session for the purposes as stated in that Section, it is well-known that by a deeming provision a legal fiction is created to regard something as some other thing when it is actually not so. Section 36-D makes the provision that until soecial Court is constituted the offences under the Act shall be 'tried' by a Court of Session and provides an exception so far as Sections 26. 27 and 32 are concerned. Admittedly a trial is held by the Court of Session only after the case has been committed to it. it is this disadvantage of the Sessions Court which is sought to be waived by authorising the special Court Under Section 36-A(1)(d) to directly proceed with trial as a Court of original criminal jurisdiction. If it was the meaning that in trying the cases under the Act the Court of Session would also function as a Court of original criminal jurisdiction, nothing could have prevented the Parliament to say, that for the purpose of such trial the Court of Session would be deemed to be a special Court. That it was not so provided points to the fact that it was not intended that the Sessions Court, so far as trial of an accused is concerned, is to function as the special Court. On the contrary to hold that during the transitional period, the Sessions Judge can take cognizance directly would in reality amount to assume a legislative function ordinarily denied to Courts.

59. Much argument has been advanced on the word 'notwithstanding' in the provisions of Section 36-D(1). It is the submission that the use of the word shows that the provisions of Section 193, Cr.P.C. would not come in the way of the Sessions Court to try cases without commitment. The submission does not appeal to me. The word 'notwithstanding' obviously relates to the jurisdiction of the Court to try the offencer and not to any particular procedure to be adopted. It is to be noted that while using the word 'notwithstanding' the trial of the cases by the. 'Court of Session' has been exclusively kept in tact. Thus the exception sought to be incorporated by the word 'notwithstanding' Is not to the trial by the Court of Session, i.e. the method of trial by it, but as conferring the power upon the Court of Session to try notwithstanding anything else contained in the Cr. P.C. The meaning of the word 'notwithstanding' has to be searched in the context alone.

60. Section 26 of the Code of Criminal Procedure prescribes the Courts by which different types of offences are trial Section 2C(b) provides that when the offence is under any other law than the Indian Penal Code, such offence is to be tried by the Court which is mentioned in that law and when no Court is so mentioned, they aie to be tried by either the High Court, or any other Court by which the offence is shown in the first schedule to be triable. The first schedule to the Code of Criminal Procedure in Part !l shows only offences punishable with death, imprisonment for Ufa or imprisonment for more than seven years to be triable by Court of Session but offences punishable with imprisonment for three to seven years to be triable by the Magistrate of the First Class and offences punishable by sentences upto three years or with fine to be triable by any Magistrate. Hence in providing that the offences under the Act would be triable by a Court of session until the special Court is constituted would have left the Sessions Court, without the use of the word 'notwithstanding', incapable to try offences for which the punishments are less than seven years. Sections 28, 27 and 32 of the Act are provisions which provide for lesser sentences and hence would not have been ordinarily triable by the Court of Session unless the present provision had been made Under Section 36-D of the Act. It is precisely for such reason that the word 'notwithstanding' was used, the matter becomes more clear on a reference to the proviso to Sub-section (1) of Section 36-D which says that the offences punishable Under Sections 26, 27 and 32 may be tried summarily. This means that despite the fact that the trial would be by the Court of Session, yet the offences under the sections are. to be tried summarhy which the Sessions Court would not have been competent to do otherwise.

61. A strenuous argument, has been advanced on behalf of the State to persuade the Court to take the contrary view because of the provisions of Sub-section (2) of Sec 36-D. The provision may be quoted:

'36-D, Transitional provisions.-(1)

xx xx xx

(2) Nothing in Sub-section (1) shall be construed to require the transfer to a Special Court of anv proceedings in relation to an offence taken cognizance by 3 Court of Session under the said Sub-sec, (1) and the same shall be heard and disposed of by the Court, of Session,'

It is the submission that as Sub-Sec (2) contemplates the cases which non have been taken 'cognizance of by the Sessions Court, but that as the Sessions. Court does not take cocgnzance of any offence under the code if Criminal Procedure it cap onlv mean that untie' the provision of Sec 36-D(1) the Sessions Cour', if authorised to cognizance and the could only be done directly either unon palices report or upon a containt as only made . To say the lease the submission is both taken and fallacious. To be fair the submission is based upon observations made in AIR 1983 SC 439 (State of U.P. v. Lakshmi Brahman and Anr.):

'...It is tits Magistrate who takes cognizance of the offence and not the Court of -Session though the case is one exclusively triable by the tatter...'

But the submission has been made bereft of the context. The Supreme court never stated that in fact cognizance is never taken by the Court of Session. As a mater of fact, the Section 193, Criminal Procedure Code. itself says that no Court of Session shall take cognizance of any offence as court of original criminal jurisdiction unless it has been committed to it by a Magistrate. Thus the sessions Court does take cognizance of offence but not as a court of original jurisdiction . It is well known that taking cognizance of an offence does not mean anything more than becoming judicially conscious that an offence has been committed. The law being well settled, it is not necessary to advert to the authorities for the purpose. Thus when an accused committed for trial is brought before the Sessions court or appears before it and the case is opened by the prosecutor stating what offence the prosecution seeks to establish in the case, the Court is called upon by such opening to take cognizance of the offence. he Court precisely does the same when it decides, on consideration of the records of the case and the documents submitted and after hearing the parties, either to discharge the accused or the to frame charge against him. it is no necessary that taking of cognizance is to be formally recorded as an order , a question which was dealt with by me in Criminal revision No., 453 of 1986 (Mrutunjaya Tripathy v.Naba Kumar Misra ) decided on 7- 11- 1990 . That the Sessions Court does take cognizance was made clear in AIR 1979 SC 339 (Joginder Singh and Anr. v. State of Punjab and other) wherein it was observed :

'....Once the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the court and the Bar of Section 193 would be out of the way...' It was again observed ;

' It will thus appear clear that Under Section 193 read with Section 209 of he code when a case is committed to the Court of session in respect of an offence the court of Session takes cognizance of the offence and not of the accused...

xx xx xx xx'

Hence since undoubtedly the Court of Session in trying a case takes cognizance of the offence, it does not mean that the Act in providing that the case shall be tried by the Court of session also implicitly said that the bar of Section 193, Cr. P. C would not apply and that the Sessions Court for the purposes of the Act would ipso facto become a Court of orignal criminal Jurrsdiction. Ascribing such a meaning would be doing violence to the provrsions of the statute which is not otherwise provided for and for which-there is no authority. The provisions of the statute; are to be interpreted in their plain meaning as they appear to be unless readmg the statute as such frustrates the very purpose of the statute. To me ft does not appear that it the procedure for trial before the Sessions Court is followed during the transitional period, the provisions of the Act would be in any way frustrated. As such I hold the vrew that till such time as the special Court is constituted, no Sessions Court cars fake cognizance of a case under the Act unless it. has been committed to it by a Magistrate.

62. Having come to such conclusion I must however emphasise in no uncertain terms that it is because of the inaction of the State that special Courts are not yet being constituted even though the very purpose of the Act is for expeditious trial and that the provisions of Section 36-D are on the face of it, intended as stop gap measures to serve Only for the passing period. Instead, though the Act has been enacted since 1985 and seven years have passed, no steps have been taken regarding constitution of the special Courts and to our pointed question the learned Government Advocate was also not. able to inform us if any progress has been made in that matter. We hope that proper notice would be taken of the matter and that special Courts would be set up without any further loss of time.

63. in the result, since on the main question on which reference was made to the Full Bench I have been unable to agree with my learned brothers, and in effect the difference on the question between Judges of co-ordinate strength remains unresolved, as also since the view of the majority of this Bench regarding the correctness of Bidyadhar's case and Satvabrata's case is without authority, I would recommend to my Lord the Chief Justice to constitute a Bench of sufficient larger strength to resolve the issues.

64. In accordance with the majority view :

(i) The decision of the Division Bench in Bhagwan Singh and etc. v. State of Orissa and othere, (1992) 5 OCR 107 does not reflect the correct view. Until a Special Court is constituted Under Section 36, the Court of Sessron -will exersisa the powers of a Special Court and thus there is no need for commitment to the Court of Session; to take cognisance of the offences committed under the Act

(ii) The views expressed by two learned Single Judges of this Court, i e. in Bidyadhar Dolai v. The State, (1992) 6 OCR 31. decided by Hon'ble L. Rath J. and in Satyabrata @ Sarat Mallin and Anr. v. State, 73(1992) CL.T 726, 1991 II OLR 475 decided by Hon'ble K. C. Jagadeb Roy, J. are not correct and are overruled.

(iii) The decision of the learned Single Judge in Sauti Jena and Anr. v. State, (1991) 4 OGR 276 is not Gorrect and the same is overruled.

The criminal cases may now be placed before the learned Single Judge for disposal.