NDPS Special Court Not Exercising Magisterial Powers While Remanding Accused Under Sec.309 CrPC At Post-Cognizance Stage : Calcutta HC [Read Judgment]

The Calcutta High Court has dismissed a habeas corpus petition holding that Special Court under the Narcotic Drugs and Psychotropic Substances Act is not exercising magisterial powers while remanding an accused at post-cognizance stage under Section 309 of the Code of Criminal Procedure.

The petition was filed contending that as per first proviso of Section 309 of CrPC, remand in excess of 15 days cannot be ordered. Since the proviso of Section 309 expressly used the term 'Magistrate', the Court had to discuss the issue whether Special Judge under NDPS Act will come within the sweep of the provision.

The petitioner's counsel Ayan Bhattacharya argued that the definition of 'Magistrate' in Section 3(32) of the General Clauses Act 1897 included every person exercising the powers of the Magistrate under CrPC. Since remanding an accused is a magisterial power, the special court should be construed as a 'Magistrate' within the meaning of proviso of Section 309. Therefore, remand of accused cannot be made for a period in excess of 15 days, argued the petitioner. Alleging such remand to be illegal, the petitioner sought for writ of habeas corpus.

The Division Bench of Justice Manojit Mandal and Joymala Bagchi noted that Special Courts under Section 36 of the NDPS Act are presided by judges in the rank of a Session Judge. Section 36A states that they can exercise powers of a Magistrate under Section 167 CrPC and that they can take cognizance on police report without the case being committed it for trial.

The Bench proceeded to hold that powers of Magistrate are exercised by the Special Judge only in relation to pre-cognizance remand under Section 167 CrPC. It held:

"Special Court while remanding an accused in the post cognizance stage under section 309 (2) Cr.P.C. does not exercise magisterial powers as envisaged under Section 167 Cr.P.C. and cannot be treated as a Magistrate within the ambit of the definition clause of the General Clauses Act. Although remand of an accused at the pre-cognizance and post cognizance stage may fall in the same genus, but they are of different species deriving jurisdiction from independent provisions, namely, Section 167(2) in the former and Section 309(2) in the latter."

The Court drew a distinction between pre-cognizance remand and post-cognizance remand on the ground that the latter power can be exercised only by a court having power to try the case. It held :

"While the power to remand an accused at pre-cognizance stage under section 167 of the Code is purely magisterial, the power to remand an accused during inquiry or trial at postcognizance is vested in every Court having jurisdiction to inquire or try the offences and not upon a Magistrate only".

It was hence held that "the Special Court under N.D.P.S. Act exercising power of remand during inquiry and trial shall be treated as 'Court of Sessions' in terms of section 36 C of N.D.P.S. Act and not a Magistrate in the light of section 3(32) of the General Clauses Act, 1897".

So, the restriction on the magisterial power to remand beyond 15 days engrafted in the first proviso of section 309(2) Cr.P.C. does not apply to Special Court while remanding the accused during inquiry and trial.

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