TaxTMI 
TaxTMI 
1995 (5) TMI 261
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....t a tip-off that a consignment of flasks exported from Madras to Israel contained Hashish concealed therein; and pursuant to this tip-of the consignment was seized at Israel on 8.6.1994. On the bask of information, the premises of the accused Armukham, Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the concerned authorities. These accused were arrested on 27.6.1994 and produced before the Magistrate who granted remand from time to time. We need not mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 since that is the subject matter of a different proceeding wherein the order of preventive detention was challenged. Admittedly, the complaint against the accused was not filed within the maximum period of 90 days of the arrest specified in the proviso to sub- section (2) of Section 167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on expiry of the specified period of 90 days and they have been directed to be rel....
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....ation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that - (a) the Magistrate may authorities the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is sa....
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....order such person to be forwarded to the Special Court having jurisdiction ; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under the section; xxx xxx xxx (3) Nothing contained in this section shall be deemed to affect that special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36". "36-C. Application of Code to proceedings before a Special Court. - Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings b....
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....oceedings before a Special Court." This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the N.D.P.S. Act "save as otherwise provided in this Act." Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 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. Except for Section 37 of the N.D.P.S. Act, no other provision of the N.D.P.S. Act is relied on to contend that there is any inconsistent provisions in the N.D.P.S. Act to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section (2) of Section 167 of the Code is made expressly applicable by Section 36-A of the N.D.P.S. Act. The question, therefore, is: Whether Section 37 of the N.D.P.S. Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section (2) of Section 167 is expressly made applicable by the N.D.P.S. Act? The non- obstante clause at th....
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....t permissible. Sub-section (3) of Section 36-A provides that the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure shall not be affected by anything contained in Section 36-A of the N.D.P.S. Act. Sub-section (2) of Section 167 Cr. P.C. has been expressly applied by Section 36-A of the Act and the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision in this Act in relation to arrests made under this Act. It is this context in which Section 37(l)(b) has to be construed wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the Code of Criminal Procedure with which Section 37(1) (b) of the Act can be treated to be inconsistent. In the Code of Criminal Procedure, it is Section 437 and not Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in case of non-bailable offence under Section 437 is as follows: "(i) such person shall not be so re-leased if there appear reasonable....
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.... two provisions which makes Section 37 of the N.D.P.S. Act more stringent. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. In our opinion, in order to exclude the application of the proviso to sub- section (2) of Section 167 Cr. P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision....
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....e N.D.P.S. Act for the exercise of this power. Ordinarily, there must also be an outer limit prescribed by specification of the total period of permissible remand during investigation. This too is provided in Section 167. To exclude merely this part of Section 167, an express provision in the statute was necessary, assuming there could be conferment of power of remand unlimited in point of time which, in substance, is the argument of the learned Additional Solicitor General. The effect of the proviso to sub-section (2) of Section 167 Cr.P.C. was stated in Natabar Parida (supra), thus:- "................... The law as engrafted in proviso (a) to sections 167(2) and section 309(2) of the New Code confers the powers of remand to jail custody during the pendency of the investigation only under the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded........ But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bai....