Sessions Judge or Special Court is competent to grant extension of period of judicial custody of the accused beyond 180 days answers the J&K High Court.

Justice Sanjay Dhar
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  • Post published:August 2, 2021
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The Hon’ble Court in a plea questioning the jurisdictional competency of the Sessions Court and the Special Court held that where an accused is facing investigation for offences under UA(P) Act together with offences under NDPS Act, concerned Sessions Judge, until a Special Court under Section 36 of NDPS Act is constituted, is vested with jurisdiction to extend the custody of such an accused beyond the period of 180 days.

The Hon’ble Court was dealing with a writ petition under Section 482 CrPC for the quashment of the Order of the Learned Additional Sessions Judge, Jammu whereby it had extended the judicial custody of the accused beyond 180 days involving offences under NDPS Act and Unlawful Activities Prevention Act.

Brief Facts of the Case:

That the petitioner along with other accused persons were booked in FIR No.38/2019 for offences under Section 8/21/22/27-A/29 NDPS Act and Section 13, 16, 17 and 21 UAPA Act by Police Station, Jammu. Initially the FIR was registered for offences under Section 8/21/22/27-A/29 NDPS Act only and the petitioner was arrested on 27.05.2019. However, during investigation of the case, offences under Section 13, 16, 17 and 21 UAPA Act were added on 30.07.2019.

After obtaining initial remand of the accused in connection with investigation of offences under NDPS Act, upon addition of offences under UA(P) Act, remand of the accused from time to time, was obtained by the Investigating Agency from Special Court designated under Section 22 of the National Investigation Agency Act [“NIA Act” for short]. Ultimately, the judicial remand for extending the period of investigation beyond 90 days in terms of Section 43-D of UA(P) Act was granted by the Designated Court under NIA Act, in terms of its order dated 23.08.2019. The extended period of judicial custody of the accused including that of the petitioner expired on 22.11.2019.

After the expiry of extended period of custody granted by the Designated Court under NIA Act, the Investigating Agency approached the Court of Principle Sessions Judge, Jammu, with an application seeking extension of period of investigation beyond 180 days in terms of Section 36-A of NDPS Act. The application came to be assigned to learned Additional Sessions Judge, Jammu, who vide his order dated 22.11.2019 extended judicial custody of the accused including that of the petitioner herein for a further period of 20 days. It is this order of learned Additional Sessions Judge, Jammu, which has been challenged by the petitioner through the medium of instant petition. 

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Arguments on behalf of the Petitioner:

Mr. Pranav Kohli, Senior Counsel for the petitioner argued that the order granting or extending the judicial custody of the accused in the instant case could be passed only by a Special Court Designated under NIA Act and not an ordinary Sessions Judge. Mr. Kohli further argued that once the period of 180 days of petitioner’s custody had expired, he was entitled to be enlarged on default bail, particularly when he had made an application for grant of such relief before the Designated Court under NIA Act as the investigating agency had failed to file the challan against the petitioner upon the expiry of aforesaid statutory period of 180 days.

Arguments on behalf of the Respondents.

Appearing for the respondents, Mr. Aseem Sawhney, AAG  argued that the petitioner has not only been booked for offences under UA(P) Act but he has also been booked for various other offences under NDPS Act, as such, the learned Additional Sessions Judge was well within his jurisdiction to extend the custody of the petitioner beyond 180 days in terms of Section 36-A of NDPS Act.

Observations of the Court:

The Court while determining the issues noted that the jurisdiction to extend detention of an accused beyond the period of 90 days in relation to a case where the accused is booked for offences under UA(P) Act, which is included in the Schedule appended to NIA Act, vests with Special Court constituted in terms of provisions of NIA Act.

After analysing the provision contained in NDPS Act, the Court noted that initially detention of a person, who is booked for an offence under NDPS Act, can be authorized by a Judicial Magistrate for a period not exceeding fifteen days and by an Executive Magistrate for a period exceeding seven days, where-after, in the cases that are triable by a Special Court, the person detained has to be forwarded to the Special Court having the jurisdiction.

The Court Observed that

“18) Proviso to sub-section (4) of Section 36-A, as quoted above, gives jurisdiction to Special Court to extend the custody of a person who is accused of offences under NDPS Act beyond 180 days up to one year on the report of the Public Prosecutor indicating progress of the investigation and the specific reasons for detention of the accused beyond said period of 180 days.

Also Read:  The Period During Which An Accused Has Been Enlarged On Bail Cannot Be Computed While Calculating The Period Of Custody For The Purposes Of Considering The Default Bail: High Court of J&K and Ladakh

19) Section 36-D of the NDPS Act provides for a situation where Special Courts in terms of Section 36 of the NDPS Act have not been constituted. Since in the Union Territory of Jammu and Kashmir, Special Courts have not been constituted, as such, the aforesaid provision assumes significance.

The court after referring to Section 36D of the NDPS concluded that very offence under NDPS Act, which is triable by a Special Court, shall, until a Special Court is constituted, be tried by a Court of Session. 

The Court thus answered the legal question raised in the petition as

“32) For the foregoing reasons, the answer to the legal question formulated in para (1) of this judgment has to be in negative. Accordingly, it is held that in a case where an accused is facing investigation for offences under UA(P) Act together with offences under NDPS Act, concerned Sessions Judge, until a Special Court under Section 36 of NDPS Act is constituted, is vested with jurisdiction to extend the custody of such an accused beyond the period of 180 days subject to fulfilment of the conditions mentioned in proviso to sub-section (4) of Section 36A of NDPS Act.”

The Court while dismissing the petition also expressed its anguish over the governments of erstwhile State of Jammu and Kashmir for not setting up a special Court in terms of Section 36 of NDPS Act despite the lapse of more than three decades from the date of enactment of NDPS Act. The Court further said that in the absence of Special Courts, the cases under NDPS Act are being tried by ordinary Session Courts thereby resulting in delay in disposal of Cases and the very object of the Act is getting defeated.

The Hon’ble Court also referred to the Judgment of the Supreme Court in a case titled Thana Singh vs. Central Bureau of Narcotics, (2013) 2 SCC 590, wherein directions were issued to a few States including the State of Jammu and Kashmir to set up Special Courts.

Case Details:

CRM(M) No.653/2019
ARSHAD AHMAD ALLAIE …PETITIONER(S)
Mr. Pranav Kohli, Sr. Advocate
With Mr. Farhan Mirza, Advocate.
Counsel for the Petitioner

UT OF J&K & ANR. …RESPONDENT(S)
Mr. Aseem Sawhney, AAG.
Counsel for the Respondents