... 1 ... IN THE HIGH COURT OF BOMBAY, AT GOA. CRIMINAL APPLICATION (BAIL) NO.301 OF 2009 Mr. Antonios Kaminis aged 45 years, presently lodged at Mapusa Judicial Lock-up, Mapusa, Goa. ... Applicant. v e r s u s Union of India, Through the Superintendent of Customs, Marmagoa, Goa. ... Respondent Mr. Peter D'souza, Advocate for the applicant. Mr. J. Vaz, Special Public Prosecutor for the respondent. CORAM: N. A. BRITTO, J. Dated: 16th October, 2009. ORDER: Heard. 2. The applicant herein seeks bail on a technical ground, after the same has been denied to him, by Order dated ... 2 ... 05.08.2009 of the learned Special Judge, Narcotic Drugs and Psychotropic Substances (NDPS) Court, Mapusa. 3. The technical ground urged in the application is that his remand on 06.07.2009 (by Shri Deshpande) is illegal and without jurisdiction and therefore, the applicant is entitled to bail. 4. Some undisputed facts may be stated to dispose the present bail application. The applicant was arrested on 21.06.2009 with the allegation that he was found in possession of 243 grms. of cocaine, which is commercial quantity, and 361 grms. of hashish. On 22.06.2009, the accused was produced before the Judicial Magistrate, First Class, who was pleased to remand him to Judicial custody for 14 days. The applicant was again produced for further remand on 06.07.2009 when he was remanded by Shri Deshpande. The applicant applied for bail to the N.D.P.S. Court on 17.07.2009 which application came to be rejected, as already stated, on 05.08.2009. Prior to that the applicant was remanded to Judicial custody on 20.07.2009. (by Smt. Thaly). 5. There is no dispute that Shri Deshpande was the ... 3 ... Special Judge appointed for N.D.P.S. Court, Mapusa. There is also no dispute that the powers of the Special Judge, Mapusa are conferred on a Additional District and Sessions Judge, Mapusa. Pursuant to Order dated 20.05.2009 issued by the High Court, Smt. Thaly took over charge of the Additional District and Sessions Judge, Mapusa w.e.f. 08.06.2009 but she was not conferred with any powers of the Special Judge under the Narcotics Drugs and Psychotropic Substances (NDPS), Act, 1985. (Act, for short). It appears that, for that reason, that the applicant was produced before Shri Deshpande for further remand on 06.07.2009 and Shri Deshpande was pleased to remand the accused to further Judicial custody until 20.07.2009. 6. Thereafter, the Government issued Notification No.2-9(1)86-LD-Estt./3099 dated 10.07.2009. The said Notification reads as follows: No.2-9(1)86-LD-Estt/3099 Government of Goa, Law Department (Estt.), Secretariat, Porvorim, Goa. Dated: 10th July, 2009. N O T I F I C A T I O N “In exercise of the powers conferred by sub- section (2) of Section 36 of Narcotics Drugs and ... 4 ... Psychotropic Substances (NDPS) Act, 1985 (Central Act 61 of 1985), the Governor of Goa, on the recommendation of the Chief Justice of the High Court of Bombay hereby appoints Smt. Bimba K. Thaly, District Judge-I and Additional Sessions Judge, Mapusa as Special Judge of the Special Court under the said Act 1985, with effect from the date she takes charge as District Judge-I and Additional Sessions Judge, Mapusa in place of Shri B. P. Deshpande, who stands transferred by Hon'ble High Court, Bombay vide their Notification bearing No.A.3902/G/2009 dated 20th May, 2009. During the absence of Smt. Bimba K. Thali, District Judge-I and Additional Sessions Judge, Mapusa, Shri B. P. Deshpande, District Judge-I and Additional Sessions Judge, Panaji shall act as Special Judge with all powers under Narcotics Drugs and Psychotropic Substances (NDPS), Act, 1985 to try the cases under the said Act.” By Order and in the name of the Governor of Goa. Sd/- (N. P. Singnapurker) Under Secretary (Estt.) 7. On the basis of the above Notification, Shri D'Souza, learned counsel appearing on behalf of the applicant ... 5 ... submits that Smt. Thaly was the Special Judge of the N.D.P.S. Court from 08.06.2009 and as such Shri Deshpande had no jurisdiction to remand the accused to Judicial custody on 06.07.2009. To support his submission, learned counsel has placed reliance on two judgments of this Court. The first is the case of Ramdas More and ors. v. State of Maharashtra {1990 (1) Mah.LR 319}. This was a case where it is the Metropolitan Magistrate who had authorised the detention of the accused for a period exceeding 15 days in violation of Section 36 (A) (1) (b) of the Act without considering the application for bail which was filed on 12.07.1989. It was, therefore held, that on the date on which the application for bail was made, the applicant's detention was unauthorised and though it might have been possible for the learned Additional Sessions Judge, after taking cognisance of the offence, to authorise the detention, if the circumstances justified such a course until the cognizance was taken, that detention which was unauthorised could not be cured on the date on which application for bail was filed and the applicants, who were under unauthorised detention were entitled to be released on bail. 8. The second is the case of Joaquim M. Correia ... 6 ... v. State of Goa (unreported judgment of this Court dated 18.07.1998). This case shows that the accused was remanded on 12.06.1998 by Shri Kenkre who then was the Additional District and Sessions Judge, Mapusa, but as on that date it was Shri Salkar who was the Special Judge and in that context this Court held that Shri Kenkre was not appointed as Special Judge and as such he had no power either to remand the accused or take cognizance on the basis of the charge sheet filed by the police. This Court held that the provision of Section 36-A (1) (c) and (d) of the Act shows that where a Special Court has been constituted under the N.D.P.S. Act and a Special Judge is appointed, he alone can exercise powers of remand under Section 167 of the Code (Code of the Criminal Procedure Code 1973) in relation to the accused who is forwarded to him and it is the Special Judge alone who can take cognizance of the offence under the provision of N.D.P.S. Act. This Court held that Shri Kenkre had no authority to exercise powers of remand on the applicant/accused. The proper course for him was to have referred the case to Shri Salkar who was appointed as Special Judge and whose appointment was in force from 12.06.1998 despite his transfer from Mapusa Court to Panaji Court. He was not de-notified and therefore, he continued to be the Special Judge of the Special Court in which charge sheet ... 7 ... against the accused was presented. Since Shri Salkar alone could have granted remand to the accused on 12.06.1998 and could have taken cognizance of the offences alleged against the accused, this Court, held that the detention of the applicant/accused from 12.06.1998 onwards was unauthorised for two reasons. Firstly, because no cognizance of the offence alleged against him was taken on the basis of the charge sheet which was filed on 12.06.1998 and the period of 90 days expired on 26.06.1998. The second reason was that Shri Kenkre who was not appointed as a Special Judge at the relevant time, had no authority to remand the accused and consequently the contention of Shri D'souza was upheld and the application for bail filed by the applicant/accused was allowed. 9. Shri J. Vaz, learned Special Public Prosecutor, appearing on behalf of the respondent, has submitted that because there was no Notification until 10.07.2009 from the Government appointing Smt. Thaly as the Special Judge of the N.D.P.S. Court at Mapusa, that Shri Deshpande had continued to be the Special Judge of N.D.P.S. Court, Mapusa appointed pursuant to the earlier Notification. The learned Special Public Prosecutor also submitted that as of today and w.e.f. 20.07.2009, ... 8 ... the applicant has been remanded by Smt. Thaly, who is now appointed as the Special Judge of the N.D.P.S. Court, Mapusa and as such the applicant will have no right as of today to seek for bail. Learned Special Public Prosecutor has placed reliance on the case of V.L. Rohlua v. Deputy Commissioner {1970 (2) Supreme Court Cases 908}, Pranab Chatterjee v. State of Bihar and anr. {1970 (3) Supreme Court Cases 926} and Ramesh Kumar Singh v. State of Bihar and ors. {1987 (Supp) Supreme Court Cases 335}. 10. The respondent/complainant produced the applicant for remand before Shri Deshpande on 06.07.2009 and that is in conformity with the judgment of this Court in the case of Joaquim M. Correia (supra), but for the Notification dated 10.07.2009. In the case of Joaquim M. Correia (supra) the accused was granted bail also because no cognizance was taken on the basis of the charge sheet which was filed on 12.06.1998. That apart, it does not appear that the provisions of Section 37 (1) (b) of the Act were brought to the notice of this Court, which section has now placed rigorous conditions before a bail application can be considered in favour of an accused. ... 9 ... 11. Shri D'souza learned counsel on behalf of the applicant submits that the applicant had filed the application for bail on 17.07.2009 before Smt. Thaly, as Special Judge and thus his right to be released on bail accrued on 17.07.2009 before his remand by Smt. Thaly, was regularised on 20.07.2009, after the Notification dated 10.07.2009 was issued. Be that as it may, in my view, the applicant would not be entitled for bail for reasons more than one. 12. The learned Special Judge, (Smt. Thaly) by the impugned order dated 05.08.2009 rejected the application by making the following observations: “No doubt, the Notification dated 10.07.2009 states that it is applicable retrospectively i.e. from the date the undersigned took charge as District Judge-I and Additional Sessions Judge, Mapusa but it cannot be disputed that it was received by the undersigned by Fax on 14.07.2009 and therefore, in such situation, the applicant was produced before Judge Shri B. P. Deshpande who was the Special Judge of the Special Court under N.D.P.S. Act, before the undersigned took charge of this Court. That apart, as rightly pointed out by learned Special Public Prosecutor, Notification dated 10.07.2007 does not state that ... 10 ... Judge Shri B.P. Deshpande has been de-notified and on the contrary this Notification mentions that in the absence of undersigned Judge Shri B. P. Deshpande shall act as Special Judge with all powers under N.D.P.S. Act 1985 to try the cases under the said Act.” That may not be the correct way of deciding the application. It is not the complainant's case that the applicant was produced for remand before Shri Deshpande on 06.07.2009 because Smt. Thaly was on leave on that day. 13. First. There can be no dispute that prior to the Notification dated 20.09.2009 issued by the High Court, it is Shri Deshpande (like Shri Salkar, in Joaquim M. Correia's case) who was appointed as the Special Judge under the Act after he was transferred and posted at Mapusa as Additional District and Sessions Judge. There is no doubt that Shri Deshpande was then transferred from Mapusa as Additional District and Sessions Judge and posted at the Children's Court but he continued to have the powers conferred upon him of the Special Judge (as Mr. Salkar) until the Government's Notification dated 10.07.2009. Though the said Notification dated 10.07.2009 has divested Shri Deshpande of the powers as Special Judge retrospectively from 08.06.2009 ... 11 ... i.e. from the date Smt. Thaly took charge at Mapusa. The said Notification cannot invalidate, by any stretch of imagination, on any principle of interpretation known to law, the orders passed by him, while he had the powers of the Special Judge, particularly the order of remand dated 06.07.2009. On 06.07.2009, when he remanded the applicant he was very much the Special Judge of the N.D.P.S. Court and therefore, the order dated 06.07.2009 is legal and within jurisdiction. Even in cases or repeal of statutes, things done under the repealed statute remain as valid as if there was no repeal. It appears that the applicant was produced before Shri Deshpande, very much in conformity with the observations of this Court in case of Joaquim Correia (supra) and the remand granted to the applicant by him on 06.07.2009 cannot be said to be invalid or without jurisdiction. The applicant therefore, was rightly remanded by Shri Deshpande on 06.07.2009 as on that date he was the Special Judge of N.D.P.S. Court though by virtue of the Government Notification dated 10.07.2009, the powers of the Special Judge were taken away from him and the same were conferred on Smt. Thaly from the date she assumed charge. 14. Second. The applicant's entitlement for bail has got to be considered as on the date of the application filed before this ... 12 ... Court if not as on today, and not from the date it was filed before the N.D.P.S. Court that is to say 17.07.2009. This is not a Revision against the order dated 05.08.2009 of the learned Special Judge but a fresh application for bail, and, the contention that the application was already filed on 17.07.2009 before the Special Court that is to say before the remand of the accused was regularised by the Special Judge Smt. Thaly on 20.07.2009 is of no significance at all. This legal position can be spelt out at least from three decisions of the Apex Court relied upon by Shri Vaz, the Special Public Prosecutor. 14.1. In Ramesh Kumar Singh (supra) a writ petition was filed under Article 32 of the Constitution and the contention raised was that the accused was remanded without being produced in the Court on the dates fixed and that was a non-compliance of the mandatory provisions of the Code (Criminal Procedure Code, 1973). The Apex Court, therefore, held that on account of such non production and the detention having become illegal, the petitioner would not become entitled to be released on bail. 14.2. In the case of V.L. Rohlua (supra) the ... 13 ... petition was filed for the release of the petitioner by a writ of habeas corpus. The Apex Court noted that the petitioner's detention each time was slightly longer than 15 days but not so unconscionably long as to violate the spirit of the Code. There was a gap when the petitioner was in the custody of the Apex Court but no request was made for his release then. It was further noted that at the time of deciding the writ petition, that the petitioner was on a proper remand and in fact was remanded to the custody of the Magistrate by the Apex Court and thus the Apex Court concluded that they would not hold his detention to be illegal. 14.3. In the case of Pranab Chatterjee (supra) the petitioner had filed a writ petition, again under Article 32 of the Constitution, for his release from detention. The petitioner was arrested on 09.08.1970 under section 151 of the Code and was not produced before the Magistrate within 24 hours nor he was informed of the ground of his arrest. It was, inter alia, contended that the petitioner was never produced before the Magistrate. The petitioner's detention was attacked on two grounds. First, that the petitioner was not informed of the grounds of his arrest and hence there was violation of Article 22 ... 14 ... (1) of the Constitution. The second ground of attack was that the petitioner after his arrest on 09.08.1970 was not produced before the Magistrate and hence there was again violation of Article 22 (2) of the Constitution. Regarding the second ground, the Apex Court held that the petitioner after his arrest on 09.08.1970 along with others was produced before the Sub Divisional Officer and remanded to jail custody and therefore, it was clear that the petitioner was produced before the Magistrate within the period referred to in Section 61 of the Code and Article 22 (2) of the Constitution. The Apex Court did not accept the plea of the petitioner that after his arrest he was never produced before the Magistrate and further held that the question as to whether he was produced before the Magistrate subsequently when further remand orders were passed has no bearing on this contention which is really based on Article 22 (2) of the Constitution. Ultimately, the Apex Court held that : “It is true that on 25.08.1970, when the petitioner was in custody in Case No.3(6) of 1970, there was actually no remand order in force. On that date, as we have already pointed out, the doctor had stated that the petitioner was sick and unfit to attend the Court. But in view of the fact that we have to consider the legality of the petitioner's ... 15 ... detention on the date when the return has been filed in this Court, that is, on 24.09.1970, the petitioner's detention on that date cannot be considered to be illegal because he was kept in detention under proper orders of remand as an under-trial prisoner.” and therefore, the second contention was rejected. 14.4. The ratio of the above decisions is that if on the date of filing of the application or for that matter, even on the date of decision, the petitioner's detention was in order, the previous infirmities like improper remand would not matter and because of that, an accused cannot be entitled for bail. Following the said principle, in the case at hand, it must be stated that the applicant has now been remanded by the learned Special Judge on 20.07.2009 and therefore, on 05.08.2009 (when his application was decided by the learned Special Judge as well as on the date of the application filed before this Court, the applicant's detention was in order and therefore, the applicant was not entitled to bail only on the ground that earlier his remand on 06.07.2009 was not in accordance with law. I have already concluded that the remand on 06.07.2009 was otherwise perfectly legal. ... 16 ... 14.5 Shri D'souza has placed reliance on the case of Union of India v. Thamisharasi and ors. (1995 DC 129) and Uday Mohanlal Acharya v. State of Maharashtra (2001 Cri. L.J. 1832). Both the cases dealt with the grant of bail for default in terms of Section 167 (2) of the Code. The first case was in relation to N.D.P.S. Act and it was held that the proviso to Sub Section (2) of Section 167 of the Code was applicable to the case under N.D.P.S. Act. This was prior to Section 36-A of the Act, was substituted by Act 9 of 2001. Again, in the second case, the Apex Court held that the right of the accused to be released on bail under section 167 (2) of the Code was indefeasible and subsequent filing of the charge sheet did not extinguish the right accrued to the accused person to be released on bail. In my view, the applicant can derive no assistance from the aforesaid two cases. 15. Third. In my view, the applicant cannot get bail beyond the provisions of the Act. In other words, the applicant would not be entitled to bail unless the applicant's case is brought under the provisions of Section 36-A or Section 37 of the Act. The rigors of Section 37 of the Act were not brought to the notice of this Court while deciding the case of Suryakant More (supra) ... 17 ... as well as Joaquim Correia (supra). It is now well settled that a finding in terms of Section 37 of the Act is a sine qua non for granting bail to an accused involved in the offence under the Act. (See 2001 Cri. Law Journal 117). In other words, bail to an applicant who is the accused involved under the N.D.P.S. Act has got to be granted strictly in terms of its provisions. It is to be noted that the Act was enacted to make elaborate provisions for consolidating and amending the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matter connected therewith. Section 37 imposes certain limitations as regards grant of bail in relation to offences under Sections 19, 24, 27A and also offences involving commercial quantity and it mandates the Court that the accused is not to be released on bail (a) unless the Public Prosecutor is given an opportunity to oppose the application, (b) the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and (c) that he is not likely to commit any offence while on bail. Sub Section 2 of Section 37 of the said Act places further limitation to say that the limitation of clause (b) of sub section (1) are in addition to the limitations under the Code or any other law for the time being in force, for granting of bail. It is ... 18 ... now well settled that section 37 (1) (b) of the Act requires the Court to adopt a negative attitude towards bail but turn positive firstly, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the Act and secondly that he is not likely to commit any offence while on bail. The provisions for bail by default has almost been nullified and it has now been provided that in relation to an offence under Sections 19 or 24 or 27 A or for offences involving commercial quantity, the reference in sub-section 2 of section 167 of the Criminal Procedure Code to 90 days wherever they occur are to be construed as 180 days and not only that, the proviso further provides that in case it is not possible to complete the investigation within a period of 180 days, the Court can extend the period upto one year on the report of the Public Prosecutor indicating progress of the investigations and the specific reasons for the detention of the accused beyond the period beyond 180 days. 16. It is settled both on authority and principle that any accused in order to obtain bail, the accused must show that his case is either covered by proviso to Sub Section 2 of section 167 of the Code or that he is entitled to be released on bail ... 19 ... under the provisions of Chapter 33 of the Code and in my view, in cases under the Act, under Section 36-A or Section 37 of the Act and accused cannot get bail beyond those provisions. 17. A Full Bench of Rajasthan High Court in Mahesh Chand v. State of Rajasthan (1985 CRI.L.J. 301) held that there is no provision in the Code, even if it were to be liberally construed, which can be said to confer a right on the accused to be released on bail by reason of the mere fact that some order is passed by the Magistrate. If the Magistrate is guilty of any act of omission or commission in the exercise of his powers of remanding an accused to custody under Section 167, 209 or 309 of the new Code, the accused may be justified in complaining that his detention was illegal during the relevant period and he may have his legal remedies including the remedy of habeas corpus, against such illegal detention, but illegal detention by itself and taken alone, is not ground for bail and has not been recognised as such by the new Code. The Full Bench has further held that if the accused person is illegally detained in prison, the least that a Court of law is expected to do for him is to quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. The Full Bench ultimately held that: ... 20 ... “To