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Showing contexts for: crpc section 93 in Mr Mohit Baliga vs State Of Karnataka on 25 June, 2021Matching Fragments
3. It is averred in the complaint that the complainant received an information on 01.04.2021 at about 10.00 a.m. to the effect that a person standing in front of Yamuna Block of National Games Village, Koramangala, was trying to sell LSD (Lysergic Acid Diethylamide) substance to the public and immediately thereafter the respondent - Police rushed to the said spot and apprehended the petitioner and from his person, they seized 46 strips of LSD totally weighing 0.89 grams. Thereafterwards mahazar was drawn and the petitioner was arrested and produced before the Koramangala Police Station along with the seized substance and subsequently he was produced before the jurisdictional Magistrate on 02.04.2021, who in turn remanded him to judicial custody. Thereafterwards periodically the learned Magistrate kept on remanding the petitioner to the judicial custody and on 07.06.2021, an application was filed on behalf of the petitioner under Section 167(2) of the Code of Criminal Procedure, 1973 (for short "the Code"), seeking statutory bail on the ground that the Police have failed to complete the investigation within the time prescribed and file the charge sheet. The learned Magistrate on receipt of such an application has passed the order impugned on 8.6.2021 directing the office to submit the entire papers to the Special Court as provided under Section 36A of the Act of 1985 and also directing the Investigating Officer to produce the petitioner/accused immediately before the Special Court and dismissed the application under Section 167(2) of the Code as not maintainable. Being aggrieved by the same, the petitioner is before this court.
10. The Hon'ble Supreme Court in the case of State
-vs- N.M.T.Joy Immaculate1 at para-13 has observed as follows:
"13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. . . . . . . "
2004 AIR SCW 2828
11. In the case of Anitha Mohan Waghmare -vs- IV Addl.Metropolitan Magistrate2, the Division Bench of the High Court of Andhra Pradesh, in identical circumstances has held at paras-11, 13 and 14 as follows:
"11. Sections 36A(1)(a)(b) and (c) reflect that a Special Court under the NDPS Act is not a Court for the first production of the accused for obtaining orders of judicial remand and that a Court of the learned Judicial Magistrate is a Court of first production for the purpose of authorising the detention of the person accused of commission of an offence in such custody as it thinks fit for a period not exceeding fifteen days in the whole. The Section of law itself provides that an accused, suspected of committing an offence under the NDPS Act would be forwarded by a Magistrate to the Special Court. Therefore, a contention that the learned Magistrate has no inherent jurisdiction or no jurisdiction at all to authorise detention in judicial custody on production of an accused before him cannot be countenanced. Section 36A of the NDPS Act which begins with the non-obstante clause. "Notwithstanding anything contained in the Code of Criminal Procedure, 1973...." indicates that the provision of the said Section would prevail over the provisions of the CrPC. In the event of any conflict between the provisions of 2016 SCC ONLINE HYD 335 CrPC and the provisions of Section 36A, the provisions of the said section under the NDPS Act would override the provisions of the CrPC.
"25.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have "availed of" or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), Cr.P.C. read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency."