STATE OF TAMIL NADU v. PARAMASIVA PANDIAN

Citation: [2001] SUPP. 4 S.C.R. 525

Court: Supreme Court of India

Bench: D.P. MOHAPATRA, K.G. BALAKRISHNAN

Judgment text

STATE OFTAMIL NADU v. PARAMASIVA PANDIAN OCTOBER 30, 2001 [D. P. MOHAPATRA AND K. G. BALAKRISHNAN, JJ. ] Essential Commodities (Special Provisions) Act, 1981-S. 12-A-Essential Commodities Act, 1955-S. 7(1)(a)(ii)-Special Court-Constituted to deal with cases under EC Act-Subsequently empowered to deal with cases under NDPS Act also-Ceased to exercise jurisdiction under EC Act on lapse of Special Provisions Act but continued to exercise powers under the NDPS Act-Remand of accused for offences under EC Act passed by the Special Court long after lapse of EC (Special Provisions) Act and ceased to have jurisdiction under EC Act-Correctness of-Held, orders of remand of accused by Special Court are without jurisdiction-Special Court constituted. for trial ofcases under NDPS Act has no power to exercise power under EC Act- High Court justified in directing prosecution of cases by area Magistrate- Code ofCriminal Procedure, 1973-S.

167-Narcotic Drugs and Psychotropic Substances Act, 1985-Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1984. Special Courts were constituted under the Essential Commodities (Special Provisions) Act, 1981 to deal with cases under Essential Com· modities Act, 1955 (EC Act). Subsequently, the said Special Courts were also empowered to deal with cases under the Narcotic Drugs and psychotropic Substances Act, 1985 (NDPS Act). The Special Court constituted under the EC Act ceased to exist after October, 1998 as the EC (Special Provisions) Act lapsed by efflux of time. However, the said Special Courts continued to function under the NDPS Act. Accused-respondents were alleged to have committed offences under the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1984 read with Section 7(1)(a)(ii) of the EC A en to the detenus to attend the area Magistrate before which Courts the respo.

ndent may proceed with the · prosecution of cases for violation of Essential Commodities Act. " The said judgment/order is under challenge in these appeals. Shri T. LV. Iyer, learned senior counsel appearing for the appellants contended that the Presiding Officer of the special Court at Madurai which was initially constituted for trial of cases under the EC Act and subsequently entrusted with the cases under the NDPS Act might have ceased for the purpose of trial of EC Act cases after the Ordinance lapsed in October, 1998 but the special court continued to exercise powers under the NDPS Act, and since the Presiding Officer of the said court was a Sessions Judge who was exercising powers of a judicial Magistrate he could pass the order of remand even when he had no jurisdiction to try cases under the EC Act.

Alternatively, Shri Iyer contended that the defect, if any, in the remand order was curable and no writ of habeas corpus quashing the order of detention could be passed in the facts and circumstances of the case. Per contra Mr. S. Sivasubramanian, learned senior counsel appearing for the respondents contended that in the facts and circumstances of the case the A· conelusion drawn by the High Court in the judgment under challenge that the remand order passed by the special court at Madurai was without jurisdiction, and therefore, illegal, is unassailable. The High Court according to Sri Sivasubramanian has given cogent reasons in support of its findings/ccmclusions. The factual position which was not controverted before us was that the special court. at Madurai constitute~ for trial of EC Act cases ceased to exist after October, 1998 when the last period of extension of EC (Special Provisions) Act lapsed.

In the present case the offences under the EC Act were alleged to have been committed by the respondent~ ~in February, 2000 long af•er the special court for EC Act cases had ceased to exist. The accused were arrested in . the months of February . and April, 2000. The cases registered against the accused were, therefore, to be dealt with in accordance with the provisions of the principal. Act i. e. EC Act, 1955 and section 11 of the EC Act provides that no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Co. de or any person aggrieved or any recognised consumer association, whether such person is amember of that association or not. It is not disputed before us that prior to enforcement of the EC (Special Provisions) Act, 1981 which was enforced on 1. 9.

1982 cases under the EC Act were being tried by the area Magistrates within their respective territorial jurisdiction. As noted earlier, the special courts were constituted under section l 2A ofthe EC (Special Provisions) Act. · The said section provided, inter. alia, that the State Government may for the purpose of providing speedy trial of the offence under the Act by notification in the official gazette constitute as many special courts as necessary for such areas as may be, specified in the notification, A Special Court shall consist ofa single judge who shall be appointed by the High Court upon a request made by the State Government. A person shall not be qualified for appointment as a judge of a Special Court unless (a) he is qualified for appointment as a judge of a High Court, or (b) he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge. r.

,· On a fair reading of the above provisions it is clear that during the period ( the EC (Special Provisions) Act was in force the special court constituted for trial of offences under EC Act had exclusive jurisdiction to try such cases. The special court had also the power to pass order of remand under section 167 but the position changed after the EC (Special Provisions) Act lapsed by efflux of STATEv. PARAMASIVAPANDIAN[MOHAPATRA,J. ] 533 time. Thereafter, the position that used to prevail before the EC ·(Special Provisions) Act was enforced, stood restored and the judicial magistrates who were previously competentto try the EC Act cases got the jurisdiction to deal with such cases. The positio~... is beyond any pale of doubt that the remand orders passed by the special court at Madurai, long after it had ceased to exercise jurisdiction in cases under the EC Act are incompetent.

Coming to the question whether the special Court constituted for trial of cases under the NDPS Act could exercise the power of remand of an accused in the EC Act case, which it was doing when the special court constituted for the EC Act cases was in existence, the answer to the question is in the negative; for the simple reason that the special court constituted for NDPS Act cases is a Court of exclusive jurisdiction for trial of the particular class of cases provided under the NDPS Act and it has not been vested with power ofjudicial Magistrate for the purpose of dealing with EC Act cases. To accept the contention raised on behalf of the appellant in this regard would in our view be contrary to the scheme of things under the Criminal Procedure Code which specifically vests the power of remand under section 167 in judicial magistrate. The High Court was, therefore, right in negativing the contention raised on behalf of the State Government in this regard.

It is relevant to note here that even after holding that the remand orders were passed by the Court not competent to pass such orders, the High Court has not granted the prayer of the writ petitioners for their release but has only ordered their release' on conditions as noted in the judgment. The resultant position that emerges from the discussions in the foregoing paragraphs is that the judgment of the High Court under challenge is unassailable and accordingly the appeals are dismissed. · S. V. K. Appeals dismissed.