1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (MAIN)NO.110/2011 AND CRIMINAL APPLICATION NO.115/2011 CRIMINAL APPLICATION (MAIN)NO.110/2011 Mr. Sadanand @ Bhui Chimulkar Aged 37 years, Indian National, R/o Prais Vaddo, Anjuna, Presently lodged in Judicial Custody, Mapusa, Bardez, Goa .. Applicant Versus 1. State Through Officer-In-Charge Anti Narcotic Cell Police Station, Police Head Quarters, Panaji, Goa. 2. Public Prosecutor High Court at Panaji .. Respondents Mr. J. P. D'Souza , Advocate for the applicant. Mr. C. A. Ferreira, Public Prosecutor for the respondents. AND CRIMINAL APPLICATION NO.115/2011 Mr. Ajay Patel, Aged 32 years, Indian National, H.No.Nil, Mazal Vaddo, Anjuna, Bardez, Goa Presently lodged at Sada-Jail, Vasco-da-Gama .. Applicant Versus 1. State Through Officer-In-Charge Anjuna Police Station, Anjuna, Bardez, Goa. 2 2. Public Prosecutor, High Court at Panaji. .. Respondents Mr. J. P. D'Souza, Advocate for the applicant. Mr. C. A. Ferreira, Public Prosecutor for the respondents. Coram :- A. P. Lavande, J. Reserved on : - 29 th July, 2011. Pronounced on :- 8 th August, 2011. ORDER : Heard Mr. D'Souza, learned Counsel for the applicants and Mr. Ferreira, learned Public Prosecutor for the respondents. 2. Both these applications filed by the applicants, who are accused in N.D.P.S. cases are being disposed of by the common order since identical question of law is involved in both these applications and the facts are almost identical. 3. Briefly, the facts in Criminal Application (Main) No.110/2011 are as under : On 13th January, 2010, the applicant was arrested 3 on the allegation that he was found in possession of 90 ecstasy tablets weighing 34 grams, MDMA powder weighing 26 grams, cocaine weighing 17 grams and liquid LSD 6 ml. On 13th January, 2010, FIR No.2/2010 was filed against the applicant for the offences punishable under Sections 21(b) and 22(C) of the N.D.P.S. Act, 1985 ('The Act' for short). On 7th September, 2010, the Judge presided over the N.D.P.S. Court Smt. B. K. Thaly allowed the application filed by the respondent and granted 60 days' extension to complete the investigation to file chargesheet. By notification dated 26th October, 2010 Smt. B. K. Thaly was appointed as Registrar (Judicial) on the establishment of High Court of Bombay at Goa, Panaji, Goa. By another notification dated 28th October, 2010, Judge Shri P. V. Sawaikar was appointed to act in the absence of Smt. B. K. Thaly as Special Judge in N.D.P.S. Court. On 3rd November, 2010 extension of time was granted and period was extended upto one year to file the chargesheet. The applicant filed Writ Petition No.83/2010 for setting aside the orders dated 7th September, 2010 and 3rd November, 2010 granting extensions of time to file chargesheet. On 21st December, 2010 Writ Petition No.83/2010 was allowed and the Special Judge was directed to hear the applicant and pass appropriate orders on the two applications and opportunity was given to the applicant to 4 file fresh application for bail depending upon the outcome of the said orders. On 22nd December, 2010 chargesheet was filed by the respondents. On 28th December, 2010, the applicant was produced in the Court of Additional Sessions Judge-2 Panaji presided over by Shri P. V. Sawaikar. The accused was remanded till 21st January, 2011. On 29th December, 2010, Judge Shri Sawaikar passed a common order disposing of the said bail application no.75/2010 along with application dated 7th September, 2010 and 3rd November, 2010 rejecting the bail application and allowing the two applications. The said order was challenged by filing Criminal Writ Petition No.3/2011 in this Court which was dismissed by order dated 7th February, 2011. 4. It is the case of the applicant that the applicant learnt that Shri B. K. Thaly who was appointed as Special Judge on 10th July, 2009, was not relieved of her posting and Judge Shri Sawaikar was given powers to act only in the absence of Special Judge. Thereafter, the applicant filed the present application challenging the order dated 29th December, 2010 passed by Judge Shri Sawaikar on the ground that he had no jurisdiction to pass the said order and seeking further direction to the Special Judge duly appointed under Section 36(2) of The Act to hear the applicant in terms 5 of the order dated 21st December, 2010 passed in Criminal Writ Petition No.83/2011. 5. In Criminal Application No.115/2011, the applicant was arrested on 18th January, 2010 and F.I.R. was registered on 19th January, 2010 by the respondent police station against the applicant for the offences punishable under Sections 21(b) and 22(C) of The Act. On 10th November, 2010, the respondent filed an application in N.D.P.S. Court seeking extension of 60 days time for filing chargesheet. On 10th November, 2010, Judge Shri Sawaikar granted 60 days' extension from 14th November, 2010. On 22nd December, 2010, the applicant filed the bail application seeking bail which was dismissed by order dated 31st December, 2010. On 2nd February, 2011, the applicant filed Criminal Application No.31/2011 in this Court seeking bail which was opposed by the respondents. This Court by order dated 17th March, 2011 dismissed the application on the ground that the applicant was heard by the Special Judge. It is the case of the applicant that in June, 2010 he came to know that Judge Smt. B. K. Thaly was not relieved of her posting and Judge Shri Sawaikar could have acted only in the absence of Special Judge and as such, the order dated 10th November, 2010 passed by Shri Sawaikar was nonest being 6 Coram non judice. The applicant has sought a declaration that the order dated 10th November, 2010 granting extension of time to the respondents to file chargesheet be declared null and void and the Special Judge appointed under Section 36(2) of The Act be directed to pass an appropriate order on the application dated 10th November, 2010. 6. There is no serious dispute that on 10th July, 2009 the notification was issued by the State of Goa appointing Smt. B. K. Thaly, District Judge-I and Additional Sessions Judge, Mapusa as Special Judge with effect from the date she takes charge in place of Shri B. P. Deshpande, who was transferred. The notification further stated that during the absence of Smt. Thaly Shri B. P. Deshpande, Additional Sessions Judge, Panaji shall act as a Special Judge with all the powers under the Act to try the cases under The Act. Thereafter, on 26th October, 2010 the following notification was issued by the Registrar General of Bombay High Court : “Department of Law and Judiciary Law (Establishment) Division __ Notification by the High Court of Judicature Appellate Side, Bombay No.A-1201/2010 7 The Hon'ble High Court is pleased to appoint Smt. B. K. Thaly, District Judge 1 and Additional Sessions Judge, Mapusa, Panaji as Registrar (Judicial), on the establishment of the High Court of Bombay at Goa, Panaji, with immediate effect. High Court, Bombay. M. N. Gilani Registrar General Dated 26th October, 2010” 7. Thereafter, the following notification dated 28th October, 2010 was published in the official gazette dated 4th November, 2010 appointing Shri P. V. Sawaikar, District Judge I and Additional Sessions Judge Panaji to act as Special Judge : “Notification No.2-9(1)86-LD-Esstt./1808 Read : Notification No.2-9(1)86-LD-Estt./3099 dated 10-07-2009. Government of Goa on the recommendation of High Court, Bombay further appoints Shri P. V. Sawaikar, District Judge-I and Additional Sessions Judge, Panaji to act as Special Judge with all the powers under NDPS Act, 1985 to try the cases under the said Act, during the absence of Smt. Bimba K. Thaly, District Judge-I and Additional Sessions Judge- cum-Special Judge, Narcotics Drugs Psychotropic Substances (NDPS) Court, Mapusa- 8 Goa. By order and in the name of the Governor of Goa N.P. Singnapurker, Under Secretary, Law (Estt.) Porvorim, 28th October, 2010.” 8. It is the contention of Mr. D'Souza, learned Counsel for the applicants that the impugned orders passed by Judge Shri P. V. Sawaikar are without jurisdiction since he could have passed these orders in the absence of Smt. B. K. Thaly only and as on the dates when the impugned orders were passed, Smt. B. K. Thaly was not absent and as such, Judge Shri Sawaikar had no jurisdiction to pass the impugned orders and as such the impugned orders are nonest, illegal and Coram non judice. According to the learned Counsel, Judge Smt. B. K. Thaly was not de-notified of the powers given to her under Section 36(2) of The Act though by order dated 26th October, 2010 the High Court had appointed Smt. B. K. Thaly as the Registrar (Judicial) on the establishment of High Court of Bombay at Goa, Panaji, Goa. In support of his submissions, Mr. D'Souza relied upon the following judgments : (i) Nazir Ahmad Vs. King-Emperor; CDJ 1936 9 PC 042. (ii) Kiran Singh and Ors. Vs. Chaman Paswan and Ors; CDJ 1954 SC 115. (iii) Mantoo Sarkar Vs. Oriental Insurance C. Ltd. & Ors. CDJ 2008 SC 2171. (iv) M.D., Bhorukha Textiles Ltd., Vs. M/s. Kashmiri Rice Industries; CDJ 2009 SC 1106. (v) Pandurang and Ors. Vs. State of Maharashtra; CDJ 1986 SC 353. (vi) Raja Soap Factory and Ors. Vs. S. P. Shantharaj and Ors.; CDJ 1965 SC 007 (vii) Supreme Court Legal Aid Committee Vs. Union of India; CDJ 1994 SC 114. (viii) State of Assam Vs. Horizon Union and Anr.; CDJ 1966 SC 210. (ix) Suryakant Ramdas More and Ors. Vs. State of Maharashtra; CDJ 1989 BHC 207. (x) Joaquim M. Corriea Vs. State of Goa; CR. Misc. Application No.88/1998 of this Court dated 18 th July, 1998 . 9. Per contra, Mr. Ferreira, learned Public Prosecutor appearing on behalf of the respondents submitted that on the dates when the impugned orders were passed, Judge Smt. B. K. Thaly was functioning as the Registrar (Judicial) and as such in terms of the notification dated 26th October, 2010 issued by the Registrar General and notification dated 28th October, 2010 issued by the State of Goa, Judge Shri Sawaikar had jurisdiction to pass the 10 impugned orders and as such, the impugned orders cannot be termed as illegal, nonest or Coram non judice. Mr. Ferreira submitted that since Judge Smt. B. K. Thaly was already appointed as the Registrar (Judicial) by notification dated 26th October, 2010 with immediate effect, in fact, she could not perform her duties as Special Judge and has to be considered as absent on the dates when the impugned orders were passed and, therefore, Judge Shri Sawaikar had every jurisdiction to pass the impugned orders in the absence of Smt. B. K. Thaly. Mr. Ferreira placed reliance upon the meaning of the word 'absence' in the Black's Law Dictionary and submitted that having regard to the fact that Smt. B. K. Thaly was appointed as the Registrar (Judicial), it must be considered that Judge Shri Sawaikar had jurisdiction to pass the impugned orders in the absence of Smt. B. K. Thaly. Learned Counsel further submitted that de facto doctrine is squarely applicable in the present case and Judge Shri Sawaikar had exercised the powers of Special Judge under The Act in terms of the notification dated 28th October, 2010 and as such, it cannot be said that the impugned orders are passed by the Judicial Officer without any authority to pass any orders under The act. In support of his submissions, Mr. Ferreira placed reliance upon the following judgments : 11 (i) Kartar Singh Vs. State of Punjab; (1994)3 SCC 569. (ii) Gokaraju Rangaraju V. State of A. P.; (1981)3 SCC 132. (iii) M/s. Beopar Sahayak (P) Ltd. and others Vs. Vishwa Nath and Others; (1987)3 SCC 693. (iv) Pushpadevi M. Jatia Vs. M. L. Wadhawan, Additional Secretary, Government of India and others; (1987)3 SCC 367. 10. I have carefully considered the rival submissions and perused the records and the judgments relied upon. 11. From a bare perusal of the two notifications dated 26th October, 2010 issued by the Registrar General and Notification dated 28th October, 2010 issued by the State of Goa, it is evident that Smt. B. K. Thaly was appointed as the Registrar (Judicial) on the establishment of High Court of Bombay at Goa, Panaji, Goa with immediate effect from 26th October, 2010. There is no dispute that she started functioning as such. In terms of the notification dated 28th October, 2010, Judge Shri P. V. Sawaikar was entitled to act as Special Judge with all the powers under The Act to try the cases under The Act in the absence of Smt. B. K. Thaly. 12 12. It is, therefore, evident that the notification dated 28th October, 2010 was issued by the State Government in view of appointment of Smt. B. K. Thaly as the Registrar (Judicial) with immediate effect. The purpose of issuing the notification dated 28th October, 2010 was to confer powers on Judge Shri Sawaikar to act as Special Judge during the absence of Smt. B. K. Thaly. Smt. B. K. Thaly having been appointed as the Registrar (Judicial) on the establishment of High Court of Bombay at Goa, Panaji, Goa, could not be expected to discharge the duties as Special Judge although the earlier notification appointing her as Special Judge under The Act was not superseded. Though the powers of Special Judge conferred on Smt. B. K. Thaly by the earlier notification was not withdrawn, the fact remains that after her appointment as the Registrar (Judicial), she was expected to discharge her duties as the Registrar (Judicial) in the High Court and as such, she could not be expected to deal with the cases under The Act. The intention of the State Government in issuing the notification dated 28th October, 2010 appointing Shri P. V. Sawaikar as Special Judge in the absence of Smt. B. K. Thaly was to meet this situation. 13. I do not find any merit in the submission of Mr. D'Souza that though Smt. B. K. Thaly was functioning as the 13 Registrar (Judicial) of this Court she was alone entitled to exercise the jurisdiction of Special Judge under The Act. Mr. Ferreira is right in placing reliance upon the meaning of the word 'absence' in Black's Law Dictionary which reads thus : “Absence – The State of being absent, removed, or away from one's domicile, or usual place of residence. Not present at particular time; opposite of appearance at a specified time.” 14. In view of the appointment of Smt. B. K. Thaly as the Registrar (Judicial) with effect from 26th October, 2010 she could not be expected to sit in the Court of Additional Sessions Judge, Mapusa and discharge the functions of the Special Judge at Mapusa. She must be considered to be absent from the usual place where the Court is functioning. This being the position, I find it extremely difficult to accept the submission of Mr. D'Souza that the impugned orders passed by Judge Shri Sawaikar are either illegal, nonest or Coram non judice. 15. It would be appropriate to refer to the judgment in the case of Gokaraju Rangaraju (supra) in which the Apex Court in paragraph 17 has observed thus : 14 “17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.” 16. Applying the tests laid down in the case of Gokaraju Rangarau (supra), it is evident that Judge Shri Sawaikar passed the order under the colour of lawful authority since Smt. B. K. Thaly was not, in fact, functioning as a Special Judge at the relevant time, but was functioning as the Registrar (Judicial) of this Court. Therefore, even if it is assumed that Judge Smt. B. K. Thaly, who was appointed as the Registrar (Judicial) of this Court, could have exercised the jurisdiction of Special Judge under The Act yet the fact remains that Judge Shri Sawaikar while passing the impugned order had passed the same in view of the fact that Smt. B. K. Thaly was not, in fact, functioning as Special Judge 15 at the relevant time and he had authority to act as a Special Judge under The Act in terms of the notification dated 28th October, 2010. In my considered opinion, the present cases cannot be considered to be the cases in which Judge Shri Sawaikar lacked jurisdiction to act as a Special Judge in terms of the notification dated 28th October, 2010. He was entitled to function as Special Judge in the absence of Smt. B. K. Thaly. Moreover, the applicants did not raise the issue of jurisdiction before the Judge Shri Sawaikar at the relevant time which was required to be raised since Judge Shri Sawaikar had jurisdiction to act as Special Judge in the absence of Smt. B. K. Thaly. 17. I do not deem it necessary to refer to the other authorities relied upon by Mr. Ferreira in support of his submissions. 18. In so far as the authorities relied upon by Mr. D'Souza are concerned, none of them is directly on the point. The following propositions emerge from the judgments relied upon by Shri D'Souza : (i) Without the power given to certain thing in certain way, the thing must be done in that way or not 16 at all. (ii) A decree passed by the Court having no jurisdiction can be challenged even in collateral proceedings. (iii) The judgment delivered by the learned Single Judge of this high Court in a matter which has to be heard and decided by the Division Bench is a nullity. (iv) In terms of Section 36(2) of the N.D.P.S. Act, the Special Court consists of a single Judge. (v) An accused under the N.D.P.S. Act, who is remanded by the Magistrate for a period of over 15 days, is entitled to bail on the ground that his detention was illegal. 19. In the case of Joaquim Correia (supra) relied upon by Mr. D'Souza, the applicant was remanded by Judge Shri Kenkre, who was not appointed as the Special Judge under The Act when, in fact, Judge A. D. Salkar who was appointed as the Special Judge, was available. In this factual background, the learned Single Judge of this Court granted bail to the applicant. The factual matrix in the said case, is entirely different and as such, the said judgment does not advance the case of the applicants. 17 20. For the reasons aforesaid, I do not find any merit in both the applications. Hence, the applications are dismissed. A. P. LAVANDE, J. SMA