Transitional remand under the NDPS Act and present legality of detention governed the habeas corpus outcome.

During the transitional period before Special Courts were constituted under the NDPS Act, the Code of Criminal Procedure continued to govern remand and committal, so a Metropolitan Magistrate could authorise judicial custody for 15 days at a time under Section 167. The statutory scheme in Sections 36, 36A and 36D was read as preserving the Magistrate's power until committal to the Court of Session, and the contrary construction was rejected. In habeas corpus, the relevant inquiry is whether detention is lawful at the time of decision; earlier irregularity does not require release if custody has since become valid. On that basis, the detention was held lawful when the matter was decided.

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Issues: (i) whether, during the transitional period before constitution of Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985, a Metropolitan Magistrate could remand an accused in judicial custody under the Code of Criminal Procedure, 1973 for 15 days at a time; (ii) whether a habeas corpus petitioner must be released if the detention was earlier irregular but has become valid by the date of hearing.

Issue (i): whether, during the transitional period before constitution of Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985, a Metropolitan Magistrate could remand an accused in judicial custody under the Code of Criminal Procedure, 1973 for 15 days at a time.

Analysis: The statutory scheme in Sections 36, 36A and 36D shows that Special Courts are to be constituted by notification, and until that occurs the offences are to be tried by a Court of Session. The transitional provision does not render the Code of Criminal Procedure, 1973 inapplicable before committal to the Court of Session. During that period, the Magistrate retains the power under Section 167 of the Code to authorise judicial custody for 15 days at a time. The construction that Section 36A(1)(b) operates as if a Special Court already exists was rejected as inconsistent with the scheme and language of the Act.

Conclusion: The Magistrate was competent to remand the accused in judicial custody for 15 days at a time during the transitional period, and the remand orders were not illegal.

Issue (ii): whether a habeas corpus petitioner must be released if the detention was earlier irregular but has become valid by the date of hearing.

Analysis: Earlier Supreme Court decisions on habeas corpus were read in their factual context and were not treated as laying down an absolute rule that only the position on the date of return can ever matter. The controlling principle applied was that the legality of detention must be assessed with reference to the detention as it stands when the Court decides the matter. If present detention is lawful, prior irregularity does not itself compel release. Applying that principle, the later valid committal and remand before the Court of Session cured any complaint about the earlier stage of custody.

Conclusion: The petitioner was not entitled to release on the ground of earlier illegality once the detention had become valid by the time of hearing.

Final Conclusion: The writ petition failed because the custody was held lawful under the transitional scheme of the Act and, in any event, the detention was valid when the matter was decided.

Ratio Decidendi: Under the transitional regime of the Act, before constitution of Special Courts, an accused is governed by the Code of Criminal Procedure, 1973 for remand and committal, and in habeas corpus proceedings the relevant consideration is the legality of detention as it stands at the time of decision.

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