JKJ 2006 (2) J-1
Investigation, Inquiry And Trial Under N.D.P.S. Act
By:- Justice (Retd.) O.P Sharma
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ‘Act’ hereinafter) is a Central legislation which extends to the whole of India including the State of Jammu and Kashmir. It creates new offences and prescribes special procedure for investigation, inquiry and trial of offences punishable under the Act. However, two recent judgments of the High Court of Jammu and Kashmir delivered by two different co-ordinate Benches expressing divergent views about the application of Section 36-A of the Act to the proceedings have prompted me to express my views on the subject.
In case Excise Commissioner Vs. Hilal Ahmed and another, 2006 (1) JKJ 71 decided on 04.08.2005, the Special Judge (Sessions Judge) Kathua had released the accused on bail under Section 167(2) of the Code of Criminal Procedure 1989 (for short ’the State Code’) on the ground that prosecution had failed to produce the challan within 60 days. While setting aside the order Nirmal Singh-J (His Lordship Mr. Justice Nirmal Singh) held that “From the report of the FSL the Poppy Plants were recovered from the possession of the respondents which comes under the definition of the Act, so it prima facie cannot be said that the said accused are not guilty of the offence under Section 15 of the Act.....” Further while referring to Section 167(2) of the State Code, the Court observed “that the accused has a right to bail by default in case the report as prescribed under sub-clause-2 of Section 173 Cr.P.C., has not been filed within 60 days but the accused has to move the application for bail and should be ready to furnish bail bond. In case the accused has not filed the application immediately after expiry of 60 days, the right of the accused to be released on bail after the expiry of stipulated period is subject to one exception i.e., on filing of the charge-sheet the accused forfeits his right to bail under sub-section (2) of Section 167 Cr.P.C.”
The other case Mohd. Ashraf Vs. State, 2006 (2) JKJ HC-47 (Cr. Rev. No.67/2005) arose out of order passed by the Special Court (Sessions Judge) Udhampur releasing the accused on bail under section 167(2) after the police had failed to file the charge-sheet before expiry of 120 days was assailed by the State. The learned Sessions Judge while granting bail under Section 167(2) of the State Code held as under :-
“....The difficulty that arises is the interpretation of the words mentioned in sub-section (4) of the section 167(2) Cr.P.C., that the reference in sub-section 167 Cr.P.C. of 1973. Section 167 Cr.P.C. of 1973 which is exclusively applicable in other parts of the country, excludes the State of J&K from its ambit. The period of detention and completion of investigation is 90 days whereas u/s 167(2) Cr.P.C. of 1989 which though analogous provisions, is exclusively applicable to the State of J&K, the period prescribed for completion of investigation and in the event of failure to do so and produce challan in the court, is only 60 days and not ninety days as prescribed in the 1973 Code. In this part of country the provisions of Code of Criminal Procedure 1989 only apply and the provisions of Code of Criminal Procedure 1973 have no application to the State of J&K. Reading Section. 167 (2) of the code of Criminal Procedure of 1989 in juxtaposition with Sec.36-A of the Act, an irresistible inference that can be safely drawn is that the period of 60 days prescribed in sec 167(2) of the 1989 Code has to be doubled and not the period of 90 days prescribed in 1973 code is to be taken into consideration...” Considering the provision 167(2) of 1989 Code the accused persons are proved to be in police judicial custody for the last 121 days that is the period of 120 days has since expired and investigation is not complete as yet. He then released them on bail under Section 167(2) of the State Code.
While setting aside the order in Revision Petition filed by the State, His Lordship Mr. Justice Y. P. Nargotra held:
“....It is cardinal rule of interpretation of statutes that a provision of a statute is to be read as it is without any addition or alteration. The provisions of the N.D.P.S. Act are applicable in the State of J&K, therefore, its Sec. 36-A has to be read in the same language in which it has been enacted. As Sec. 36-A refers to the provision of Sec. 167 of Central Cr. P.C., 1973, therefore, by applying the legal fiction the same are to be treated as part of the section itself and have to be read within the section. Sec. 167 of Central Cr. P. C. though a Central Act and independently not applicable to the State of J&K yet by its incorporation in Sec. 36-A of the Act it is to be deemed to be applicable in the State in its modified form in the manner indicated in Section 36-A and construed as integral part of the section itself....”
The proposition that “Section 167 of the Central Cr.P.C. though not applicable to the State of J&K yet by its incorporation in Sec. 36-A of the Act it is deemed to be applicable in the State in its modified form in the manner indicated in Section 36-A and construed as integral part of the section itself”, it is submitted with utmost respect, is too widely stated because even if any provisions of the Central Code is read as “integral part of the Section”, this by itself will not amount to application of the Central Code of the State, but these will only apply to the proceedings before the Special Court as shall be presently noticed.
Chapter-IV of NDPS Act provides for punishments, constitution of Special Courts, jurisdiction of the Special Courts, investigation, inquiry and trial under the Act:
“36. Constitution of Special Courts:- The Government may, for the purpose of providing speedy trial of the offences under this act, by notification in the Official Gazette, constitute as many special Courts as may be necessary for such area or areas as may be specified in the notification.”
Section 36-A defines the offences triable by Special Courts and also fixes the period of 180 days and 120 days within which investigation is to be completed instead of 90 days and 60 days prescribed under section 167 (2) of the Central Code. Section 36-B empowers the High Courts to exercise all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure 1973 in respect of appeal and revision as if the special court is a court of Sessions.
Next in the chain is Section 36-C which reads as under:
“36-C Application of the Code to the Code to proceedings before a Special Court.- Save otherwise provided in this Act, the provision of the Code of Criminal Procedure, 1973 (2 of 1974, (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a court of Session and the person conducting a prosecution before a Special Court8 shall be deemed to be a public prosecutor.”
So it is either the procedure prescribed by the Act or the procedure laid down in the Central Code which is applicable to the proceedings before special Court. Similarly, Section 37 provides that every offence punishable under the Act shall be cognizable and the limitation on granting of bail specified therein shall be in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on grant of bail.
Sections 41 to 52-A of Chapter V prescribe the procedure for (i) issue of warrants; (ii) entry, search, seizure and arrest with or without warrant; (iii) disposal of persons arrested and articles seized; and (iv) disposal of seized Narcotic drugs and Psychotropic Substances. But Section 51 makes the Central Code applicable to such case. This Section reads:
51. Provisions of the Code of Criminal Procedure 1973 to apply to warrants, arrests searches and seizures:
“The provisions of the Code of Criminal Procedure 1973 (2) of 1974) shall apply in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.”
The mandate of the Section is that in case of inconsistency between the Provisions of the Cr. P.C., 1973 and the Act, the Act will have primacy. This is based on the doctrine “Generalia Specialibus non derogant.”
This takes us to the findings recorded by the High Court that “Section 167 of Central Cr.P.C. though a Central Act and independently not applicable to the State of J&K, yet by its incorporation in Section 36-A of the Act, it is to be deemed to be applicable in the State in its modified form in the manner indicated in section 36-A and construed as integral part of the Section itself.” The moot question is whether this amounts to application of the Central Code to the State as has been held.
We have already noticed that Section 36 provides for the constitution of Special Courts for the trial of offences punishable under the Act and Section 36-A deals with the jurisdiction of the Special Court to try the offences and the period within which investigation is to be completed. While Section 36-B mandates that the High Court may exercise all the powers conferred by chapter XXI and XXX of the Cr.P.C., 1973 as if a special Court within the local limits of the jurisdiction of the High Court is a court of Sessions, Section 36-C provides that the provisions of Central Code shall apply to the proceedings before a special court and for the purposes of the said provisions special court shall be deemed to be a court of session. Similarly, Sections 41 to 50 being only the enabling provisions, the procedure prescribed in the Central Code is to be followed as mandated by Section 51.
From the examination of these provisions, we find that the Act has provided for investigation, inquiry and trial of the offences punishable under the Act. If that be so as it really is, the question of “deemed application” of the relevant provisions of the Central Code to the State does not arise, in view of the mandate of section 5 of the State Code which reads as under:
5(1) Trial of offences under Ranbir Penal Code.
(1) All offences under the Ranbir Penal Code shall be investigated, inquired into, tried and otherwise dealt with acceding to the provisions hereinafter contained.
(2) Trial of offences against other laws:-
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 tying or otherwise dealing with such offences."
This Section lays down that all offences whether under the Penal Code or under any other law have to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the State Code (Cr.P.C., 1989) unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences in which case such an enactment will prevail over the Code.
A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code such other provision would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matter covered thereby.
Since this section corresponds to Section 4 of the Central Code, therefore, the interpretation placed on that Section by the Supreme Court would ipso facto apply. The first case in which sub-section was interpreted by the apex Court is Nilratan Sircar vs. Lakshmi Narayan Ram Niwas, AIR 1965 SC 1, in which their lordships held that:
“(14) It was also urged for the appellant that the provisions of Section 5(2) of the Code apply to the present case in matters which are not provided by the Act. His contention too has no basis. Section 5 provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, 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 Act is a special Act and its provides S. 19-A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement. The provisions of the Code of Criminal Procedure therefore will not apply to such investigation by him, assuming that the expression investigation includes the retaining of the documents for the purposes of the investigation.”
This principle was reiterated in case Directorate of Enforcement vs. Deepak Mahajan, 1994 Cr. L.J. page 2269 (SC) holding that:
“126. In A.R. Antulay v. Ramdas Sriniwas Nayak, 1984 (2) SCR 914 (AIR 1984 SC 718), a Constitution Bench of this Court while examining the similar question with regard to applicability of Section 4 with reference to the Prevention of Corruption Act has laid down the law thus (at p.729 of AIR 1984):
“In the absence of a specific provi-sion made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to Criminal P.C. In other words, Criminal Procedure Code is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations”."
“127. To sum up Section 4 is comprehensive and that Section 5 is not in derogation of Section 4 (2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4 (2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading....” 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."
“132. For the aforementioned reasons, we hold that the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently S.167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167.”
Similarly, in Gangula Ashok vs. Sate of Andhra Pradesh (2000) 2 SCC 204 while interpreting Section 4(2), it has been held that:
“13. A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if another enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provisions) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. This aspect has been emphasized by a Constitution bench of this Court in para 16 of the decision A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500.”
Again in State of West Bengal vs. Narayan Patodia, (2000) 4 SCC 447, the principle was reiterated holding that:
“11. So far as the offences under the Indian Penal Code are concerned sub-s. (1) mandates that they can be investigated into and tried according to the provisions of the Code. When we go to sub-s. (2) which concerns the offences ”under any other law" it is again the rule that such offences shall also be investigated and tried according to the provisions of the Code itself, but with a rider that such investigation or trial shall be subject to the regulation regarding “the manner or place of such investigation or trial prescribed in any enactment for the time being in force.”
So the law as declared by the summit Court in Deepak Mahajan’s case (supra 1994 Cr. LJ 2269 SC) is that:
“Section 4(2) itself makes the application of the Code subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into trying or otherwise dealing with offences” and further, holding that “the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including FERA and Customs Act.....”
NDPS Act being a special law, Section 5(2) of the State Code is attracted but the application of the provisions of the Central Code to the proceedings under the Act does not amount to deemed application of the Central Code to the State. In other words, the procedure prescribed in the NDPS Act apply only to the proceedings under the Act (NDPS Act) including investigation, inquiry and trial by the special Court, constituted under section 36 in terms of the mandate of Section 5(2) of the State Code.
The next is the competence of the Parliament to lay down the procedure for investigation inquiry and trial of the offences under NDPS Act. The power of Parliament to make laws for the State is determined by Article 370(1) (b) of Constitution of India which is reproduced below:-
“370. (1) Notwithstanding anything in this Constitution,_
(a) x x x x x x x x x x x x x x x x x x x x x
(b) the power of Parliament to make laws for the said State shall be limited to
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State: and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify."
Since some provisions of the central code (Cr.P.C. 1973) have been applied to the investigation of the offences and proceedings before the Special Court constituted under the NDPS Act., the question is whether Parliament was competent to do so. Again the answer would depend upon the competence to enact law of Criminal Procedure. The relevent entry is entry 2 of the concurrent list, which reads as follows:
“Criminal Procedure, including all matters included in the code of Criminal Procedure at the commencement of this Constitution.”
However while applying this to the State in exercise of the powers conferred under Article 370 (1)(b) of Constitution of India, it is stated as under :
(b) for entry 2 substitute the following entry namely:-
“Criminal Procedure (including provision of offences and constitution and organization of criminal Courts, except the Supreme Court and the High Court) in so far as it relates to;
(i) Offences against laws with respect to any matters being matters with respect to which Parliament has power to make laws; and...."
By virtue of this entry Parliament has the power to prescribe Criminal Procedure but only in so far as it relates to offences against laws with respect to which Parliament has power to make laws. It is by virtue of this constitutional power that under Section 36-C of the Act, some provisions of the Central Cr.P.C., 1973, have been applied to the proceedings before the Special Court constituted under Section 36 of the NDPS Act. But this does not amount to extension of Cr.P.C., 1973, to the State either by applying the doctrine of interpretation of statutes or by incorporation of the provisions in the NDPS Act, as held.
In view of the above, it is submitted that the observation made in 2006 (1) JKJ 71 that failure to file report within 60 days, in terms of Section 173 (2) of the State Code, entitles the accused arrested under NDPS Act to bail, does not state the law correctly being against the mandate of Section 36-A. However, the order of Special Court was not reversed under Section 167 (2) Cr.P.C., but under Section 37 NDPS Act. With utmost respect, it is submitted that revision ought to have been allowed for failure to exercise power under Section 36-A (4) as the period for production of challan is 180 days and not 60 days. Moreover, once default is complete, the right to bail under Section 167 (4) of the Central Code is indefeasible and once the default occurs, Section 37 is not attracted, as laid down in Union of India Vs. Thamisharasi, (1995) 4 SCC 190.
In conclusion, it is submitted that while the law declared in case of Mohd. Ashraf is correct subject, of course, to the condition that the provisions of the Central Code are applicable only to the proceedings under the NDPS Act and do not extend to the State. However, the observation about the application of Section 167(2) of the State Code made in the first case is not correct statement of law though it is only an obiter dicta.
Another judgment of the High Court which requires notice is Harbans Kour vs. State, reported in 1994 Cr. L.J. 328, wherein, the Court while rejecting the argument that absence of use of word ‘She’ along with ‘He’ in Section 37 attracts the exception made in favour of females under Section 497 of the State Code, it was observed that:
“.......It goes without saying that the provision is ill-drafted, but when read in its totality, it leaves no room for doubt that it applies to all the accused irrespective of their sex. It is significant to note that controlling clause (b) of S.37 (1) starts with the words, ’no person accused of an offence....” and the “person” surely includes both men and women. The later omission to use word “she” in sub-clause (ii) can at best be treated as a “Draftmen’s devil” and should not be allowed to defeat the intent and purpose of the provision which on plain reading mandates refusal to grant bail to any person accused of an offence punishable with five years imprisonment or more unless the conditions laid down therein are satisfied. Any other interpretation would place in a special class of accused irrespective of the gravity of the offence alleged against them and that too on the basis of their sex which could not have been the intention of the Legislature. Therefore, on this reasoning, I find it difficult to accept the contention and feel no hesitation in holding that S.37 of the Act applies as much to the women as to the men so long as they are accused of an offence under the N.D.P.S. Act."
With utmost respect, it is submitted that the observation “ill-drafting” ignores the mandate of Section 13 of the General Clauses Act, which reads under:
“13. Gender and number.- In all (Central Acts) and Regulations, unless there is anything repugnant in the subject or context,-
(1) words importing the masculine gender shall be taken to include females; and
(2) words in the singular shall include the plural and vice versa."
Section 37 has thus been properly drafted and requires no change.