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QUESTION IN THE REFERENCE The question of law framed by the learned Judge was as follows:-
"Is Special Court constituted under Section 36 of the NDPS Act (deemed Sessions Court) competent to entertain the pre-arrest bail petition under Section 438 of Criminal Procedure Code?"

The learned Judge, Special Court under the NDPS Act, 1985 framed the question of reference by his Order dated September 10, 2013. While discussing the necessity to refer the question to this Hon'ble Court the learned Judge considered 2013 Criminal Law Journal page 3503 (Rakesh Kumar alias Kukka v. State of Himachal Pradesh), 2001 Criminal Law Journal page 117 (Superintendent, Narcotic Central Bureau, Chennai v. R. Paulsamy), 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) and 2003 Volume 3 Gauhati Law Report page 130 (Balajit Singh v. State of Assam). He noted that Balajit (Supra) cited before him was unreported. He also considered 2003 volume 1 Gauhati Law Times page 107 (Suresh Dutta v. State of Tripura). The learned Judge explained his views requiring the reference to be made. In his view, Special Court constituted under the NDPS Act, 1985 was a Court of first production and was, therefore, not competent to entertain and hear an application under Section 438 of the Code of Criminal Procedure, 1973. According to him, provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1973 were absent in the NDPS Act, 1985 and, therefore, the ratio of Pijush Kanti Dey (Supra) was not applicable. He noted the divergent views of the Gauhati High Court in the cases of Balajit Singh (Supra) and Suresh Dutta (Supra). He found that, a reference was made to the Larger Bench of the Gauhati High Court for examining the matter. The decision of the Larger Bench of the Gauhati High Court on such reference was not placed before him. AMICUS CURIAE By an Order dated November 25, 2013 we requested Mr. L.K. Gupta, learned Senior Advocate and Mr. Sekhar Bose, learned Senior Counsel to assist us in the matter as Amicus Curiae. VIEW OF THE PETITIONER Mr. Milon Mukherjee learned Advocate for the petitioner before the Trial Court submitted that, a petition under Section 438 of the Code of Criminal Procedure, 1973 was maintainable before the Special Court trying offences under the NDPS Act, 1985. He referred to Section 5 of the Code of Criminal Procedure, 1973 which provided that, the provisions of any special Act would apply in addition to the provisions of the Code of Criminal Procedure, 1973 if such Special Act declared it to be so. He contended that, the Special Court under the NDPS Act, 1985 was constituted under the provisions of Section 36 of the NDPS Act, 1985. A Special Court constituted under Section 36 of the NDPS Act, 1985, according to him, was a Court of Session. According to him, Section 36C of the NDPS Act made the Code of Criminal Procedure, 1973 applicable to proceedings before it, save as otherwise provided in the NDPS Act, 1985. He submitted that, save as otherwise provided in the NDPS Act, 1985 all provisions of the Code of Criminal procedure, 1973 including the provisions as to bails and bonds would apply to the proceedings before a Special Court. The NDPS Act, 1985, according to him, did not take away the provisions as to bails apprehending arrest of the Code of Criminal Procedure, 1973 from the purview of the Special Court constituted under the NDPS Act, 1985. The Special Court had the jurisdiction to entertain and dispose of petition under Section 438 of the Code of Criminal Procedure, 1973. He submitted that Section 12AC of the Essential Commodities Act, 1955 as it stood with the coming into effect of the Essential Commodities (Special Provisions) Act, 1981 was pari materia with that of Section 36C of the NDPS Act, 1985. He submitted that, on a reference as to the question whether the Court of Sessions and the Special Court constituted under the Essential Commodities Act, 1955 as amended by the Essential Commodities (Special Provisions) Act, 1981 had concurrent jurisdiction to grant anticipatory bail under Section 438 of the Code of Criminal procedure, 1973 to a person apprehending arrest on an allegation of having committed an offence under the Essential Commodities Act, 1955 or not the Division Bench of this Hon'ble Court in 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) held that, the power under Section 438 of the Code of Criminal Procedure, 1973 could be exercised by the Special Court constituted under the Essential Commodities Act, 1955 in respect of offences keeping in view of proviso to Clause 1(d) of Section 12AA of the Essential Commodities Act, 1955.

Next he submitted that, mere mentioning of the provision as to bails and bonds in Section 36C would not introduce all the provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 to the NDPS Act, 1985. He contrasted Section 36B with 36C of the NDPS Act, 1985 and submitted that, all powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 were preserved in respect of Section 36B. Section 36C of the NDPS Act, 1985 provided that, the provisions of bails and bonds would apply to the proceedings before a Special Court. According to him, had the legislature the intention to vest the power of anticipatory bail to a Special Court the same would be expressly mentioned in Section 36C. This was a contrast on which he laid stress upon. He submitted that, Sections 36A, 36B and 37(2) of the NDPS Act, 1985 were some provisions of legislation by incorporation. He sought to make a distinction between legislation by incorporation, and a mere reference to an earlier Act in the later Act. According to him, a mere reference of any provision of an earlier Act was not legislation by incorporation. In such context, he submitted that, so far as Section 36C related to the powers under Section 438 of the Code of Criminal Procedure, 1973 was concerned, the same was not incorporated by legislation. The provisions under Section 438 of the Criminal Procedure Code, 1973 were not bodily transposed into Section 36C. According to him, had the legislature any intention of vesting the power under Section 438 of the Code of Criminal Procedure, 1973, Chapter XXXIII of the Code of Criminal Procedure, 1973 would be mentioned in Section 36C of the NDPS Act, 1985. He relied on 2013 Volume 7 Supreme Court Cases page 754 (Bank of Maharashtra v. Pandurang Keshav Gorwardkar) in support of the contention that, the mention of a section was neither legislation by reference nor a legislation by incorporation. On Section 12AA(1)(d) of the Essential Commodities Act, 1955, (as was introduced by way of amendment), he submitted that, there was no relevant provision in the NDPS. Act, 1985 which was analogous to Section 12AA(1)(d). Therefore, Section 12AA of the Essential Commodities Act, 1955 as was existing and Sections 36A and 36C of the NDPS Act, 1985 could not be termed as pari materia.

He went on to submit that, the legislator was deemed to know the existing law on the subject while enacting a law. Therefore, while amending Section 36A of the NDPS Act, 1985 the provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1985 was deemed to be within the contemplation of the legislator. The legislator in its wisdom did not reproduce the same in the NDPS Act, 1985. This, according to him, made the crucial difference. The provisions of Section 36C of the NDPS Act, 1985 according to him, could not be read in a manner to make any portion of it dead letter or superfluous. He, thereafter, sought to distinguish Pijush Kanti Dey (Supra). He submitted that, the issue before the Division Bench in Pijush Kanti Dey (Supra) was not the same as the reference taken up for consideration here. According to him, as there was no provision analogous to the provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1955 in the NDPS Act, 1985, Pijush Kanti Dey (Supra) would not be applicable to the present reference. Moreover, in Pijush Kanti Dey (Supra) the Division Bench observed that Essential Commodities Act, 1955 was a self-contained Code. However, NDPS Act, 1985 could not be termed to be a self- contained Code. He submitted that invocation of Section 5 of the Code of Criminal Procedure, 1973 by Pijush Kanti Dey (Supra) was misplaced. He relied on 2002 Volume 4 Supreme Court Cases page 713 (Moti Lal v. CBI & Anr.) in support of his contention that, when specific provisions of the statute were contrary to the provisions contained in the Code of Criminal Procedure, 1973, the statute would prevail during trial. However, it could not be said that, the operation of the rest of the provisions of the Code of Criminal Procedure, 1973 would not apply to a proceeding before a Special Court constituted under the NDPS Act, 1985. The Court ought to answer the reference keeping in view the in house limitations provided under Section 37(1)(b) of the NDPS Act, 1985. VIEWS OF THE AMICUS CURIAE Joint submission was made by the Amicus Curiae. They analyzed diverse provisions of the NDPS Act, 1985 to demonstrate the extent NDPS Act, 1985 dispensed with the applications of the provisions of the Code of Criminal Procedure, 1973. Such exercise according to them, were necessary to obtain a view on the opening words of Section 36C particularly "Save as otherwise provided in this Act................". They identified Sections 32A, 33, 36A, 37, 51, 52A(4) of the NDPS Act, 1985 which gave overriding effect of the provisions of the NDPS Act, 1985 over the Code of Criminal Procedure, 1973. They submitted that, such provisions as enumerated in the preceding sentence made either the provisions of the Code of Criminal Procedure, 1973 in their application to be dispensed with or incorporated into the NDPS Act, 1985 with modifications, which were necessary for the purpose of giving effect to the provisions of the NDPS Act, 1985. They reasoned that, the provisions of the Code of Criminal Procedure, 1973 were not barred from their application in a proceeding under the NDPS Act, 1985.On the contrary they were very much applicable, save to the extent specifically ousted or modified by the provisions of the NDPS Act, 1985 itself.

"12AC. Application of Code to proceedings before a Special Court. Save as otherwise provided in this Act, the provisions of the Code (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor".

When Section 12AC of the Essential Commodities Act, 1955 and Section 36C of the NDPS Act, 1985 were compared the only conclusion possible was that, the two sections were pari materia. Considering Section 12AC of the Essential Commodities Act, 1955 the Division Bench in Pijush Kanti Dey (Supra) was of the view that, by virtue of the deeming provision contained in Section 12AC of the Essential Commodities Act, 1955 the Special Court constituted under the Essential Commodities Act, 1955 was required to be regarded as a Court of Session in relation to a proceeding before it and that, the provision of Chapter XXXIII of the Code of Criminal Procedure, 1973 as to bail and bonds would apply to such proceedings. In such perspective, the Division Bench in Pijush Kanti Dey (Supra) returned a finding that, a Special Court under the Essential Commodities Act, 1955 was fully competent to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to a person accused of or suspected of committing any offence under the Essential Commodities Act, 1955. Moreover, the Division Bench in Pijush Kanti Dey (Supra) found that, the Essential Commodities Act, 1955 was a special enactment and a self-contained Code, conferring special jurisdiction and powers to the Special Court. It held that, the powers conferred upon the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, did not extend to a case where a person apprehending arrest of an accusation of having committed an offence under the Essential Commodities Act, 1955. The Karnataka High Court in S. Murugeshappa & Ors. (Supra) and Madhya Pradesh High Court in Karamchand & Ors. (Supra) were of the view that the Special Court under the Essential Commodities Act, 1955 as well as the High Courts were entitled to exercise powers under Section 438 of the Code of Criminal Procedure, 1973. The Rajasthan High Court in Suresh Chand & Ors. (Supra) was of the view that a High Court could grant anticipatory bail for an offence committed under the Essential Commodities Act, 1955. A Single Judge of the Andhra Pradesh High Court in B. Kuppa Naidu (Supra) was of the view that the Sessions Court and the High Court were not fettered by the provisions indicated under Section 12AA of the Essential Commodities Act, 1955 from exercising powers under Section 438 of the Code of Criminal Procedure, 1973. This view of the Andhra Pradesh High Court was different to that expressed by our Court in Pijush Kanti Dey (Supra). In Pijush Kanti Dey (Supra) our Court was of the view that it was for the Special Court constituted under the Essential Commodities Act, 1955 and not the Sessions Court to exercise powers under Section 438 of the Code of Criminal Procedure for offence relating to the Essential Commodities Act, 1955.