
Is Special Court constituted under Section 36 of the NDPS Act (deemed Sessions Court) competent to entertain the pre-arrest bail petition under Section 438 of Criminal Procedure Code?”
The learned Judge, Special Court under the NDPS Act, 1985 framed the question of reference by his Order dated September 10, 2013. While discussing the necessity to refer the question to this Hon’ble Court the learned Judge considered 2013 Criminal Law Journal page 3503 (Rakesh Kumar alias Kukka v. State of Himachal Pradesh), 2001 Criminal Law Journalpage 117 (Superintendent, Narcotic Central Bureau, Chennai v. R. Paulsamy), 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) and 2003 Volume 3 Gauhati Law Report page 130 (Balajit Singh v. State of Assam). He noted that Balajit (Supra) cited before him was unreported. He also considered 2003 volume 1 Gauhati Law Times page 107 (Suresh Dutta v. State of Tripura). The learned Judge explained his views requiring the reference to be made. In his view, Special Court constituted under the NDPS Act, 1985 was a Court of first production and was, therefore, not competent to entertain and hear an application under Section 438 of the Code of Criminal Procedure, 1973. According to him, provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1973 were absent in the NDPS Act, 1985 and, therefore, the ratio of Pijush Kanti Dey(Supra) was not applicable. He noted the divergent views of the Gauhati High Court in the cases of Balajit Singh (Supra) and Suresh Dutta (Supra). He found that, a reference was made to the Larger Bench of the Gauhati High Court for examining the matter. The decision of the Larger Bench of the Gauhati High Court on such reference was not placed before him. AMICUS CURIAE By an Order dated November 25, 2013 we requested Mr. L.K. Gupta, learned Senior Advocate and Mr. Sekhar Bose, learned Senior Counsel to assist us in the matter as Amicus Curiae. VIEW OF THE PETITIONER Mr. Milon Mukherjee learned Advocate for the petitioner before the Trial Court submitted that, a petition under Section 438 of the Code of Criminal Procedure, 1973 was maintainable before the Special Court trying offences under the NDPS Act, 1985. He referred to Section 5of the Code of Criminal Procedure, 1973 which provided that, the provisions of any special Act would apply in addition to the provisions of the Code of Criminal Procedure, 1973 if such Special Act declared it to be so. He contended that, the Special Court under the NDPS Act, 1985 was constituted under the provisions of Section 36 of the NDPS Act, 1985. A Special Court constituted under Section 36 of the NDPS Act, 1985, according to him, was a Court of Session. According to him, Section 36Cof the NDPS Act made the Code of Criminal Procedure, 1973 applicable to proceedings before it, save as otherwise provided in the NDPS Act, 1985. He submitted that, save as otherwise provided in the NDPS Act, 1985 all provisions of the Code of Criminal procedure, 1973 including the provisions as to bails and bonds would apply to the proceedings before a Special Court. The NDPS Act, 1985, according to him, did not take away the provisions as to bails apprehending arrest of the Code of Criminal Procedure, 1973 from the purview of the Special Court constituted under the NDPS Act, 1985. The Special Court had the jurisdiction to entertain and dispose of petition under Section 438 of the Code of Criminal Procedure, 1973. He submitted that Section 12AC of the Essential Commodities Act, 1955 as it stood with the coming into effect of the Essential Commodities (Special Provisions) Act, 1981 was pari materia with that of Section 36C of the NDPS Act, 1985. He submitted that, on a reference as to the question whether the Court of Sessions and the Special Court constituted under the Essential Commodities Act, 1955 as amended by the Essential Commodities (Special Provisions) Act, 1981 had concurrent jurisdiction to grant anticipatory bail under Section 438 of the Code of Criminal procedure, 1973 to a person apprehending arrest on an allegation of having committed an offence under the Essential Commodities Act, 1955 or not the Division Bench of this Hon’ble Court in 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) held that, the power under Section 438 of the Code of Criminal Procedure, 1973 could be exercised by the Special Court constituted under the Essential Commodities Act, 1955 in respect of offences keeping in view of proviso to Clause 1(d) of Section 12AA of the Essential Commodities Act, 1955.