Oral Order: (U.L. Bhat, CJ.)

1. Four tea companies in Assam have filed this petition under Article 226 of the Constitution of India challenging tender notices published by Charaideo Mahkuma Parishad proposing to settle certain hats and market places on successful tenderers. On behalf of the Parishad Chief Administrator has sworn to counter affidavits. Petitioners have filed reply affidavits.

2. The common contention of the petitioners is that the market places or hats proposed to be settled under the impugned tender notices belong to the respective petitioners as part of tea garden area, that the hats were established by the petitioners for the benefit of their employees, that in these private hats of petitioners in the tea company areas Mahkuma Parishad has no right or any sort and Mahkuma Parishad can not validly seek to settle these hats by lender or otherwise. The short answer of the Parishad is that after Assam Panchayati Raj Act, 1972 was amended by Assam Act 11/77 bringing the tea companies areas also within the jurisdiction of Gaon Panchayats or Mahkuma Parishads, all hats or market places within tea Company areas are to be settled by Parishads and not by the Companies.

3. As Section 1(2) of the Assam Panchayati Raj Act, 1972 (for short the Act) that originally stood, the Act extended to villages of the State subject to the specific exceptions indicated therein. By the amending Act 11 of 77 Section 1(2) of the Act was amended to state "It applies to all the villages and the tea garden areas in the whole of the State of Assam" There should therefore be no doubt after the enactment of Act 11 of 1977 Gaon Panchayats and Mahkuma Parishads have jurisdiction over tea garden areas also.

4. Learned counsel representing Parishad relies on Section 70 of the Act. Sub-Section (1) of Section 70 states, inter alia, "all hats within the jurisdiction of a Mahkuma Parishad shall be settled in a manner for a period of one year by inviting tenders at the office of......". It is argued that by virtue of this provision Mahkuma Parishads have the right to settle all hats within their respective jurisdictions whether the hats are private or public. The words "all hats" can have wide or narrow connotation. They can be understood as all hats whether private or public or they can be understood as meaning those hats which vest in Mahkuma Parishads. Whether one or the other interpretation is to be given is the aspect to be considered.

5. Section 68 of the Act declares the power of Gaon Panchayat to impose taxes and fees as indicated therein. Clause (a) of Sub-section (1) of Section 68 gives statutory power to impose "tax on private hats or market places". This would clearly indicate that the legislature was conscious that hats are of two kinds, namely, private hats and public hats. So far as public hats are concerned, legislature has enacted provision for settlement. Regarding private hats legislature has taken care to provide an arrangement for imposition of tax. This is further elaborated in Section 77 of the Act.

6. Title of the Section 77 of the Act is "power of Gaon Panchayat to prohibit use of unlicenced hat" Sub-Section (1) of Section 77 reads as follows:

".... the Gaon Panchayat may issue an order that within its jurisdiction no land other than the land used as hat established by or vested in the Mahkuma Parishad or Gaon Panchayat shall be used as hats without obtaining a licence from the Gaon Panchayat.

(emphasis supplied.)

Sub-Section (2) contemplates the imposition of a tax for using such land as hat. Gaon Panchayat is given power to cancel/suspend the licences so granted. Under Sub-Section 7 the owner or occupier of any land using or permitting user of land as a hat without a licence renders himself liable to a fine.

7. It appears to us that the provisions of Section 70 can not be read in isolation since they form part of a scheme covered by a part of Section 68, Section 70 and Section 77 and other related provisions and therefore the provisions of Section 70 have to be understood in this setting.

8. From reading of Section 68 and Section 77 it is manifest that the legislature contemplated two kinds of hats with reference to which Mahkuma Parishad or Gaon Panchayat have a role to play, namely private hats and non-private hats. Non-private or public hats are those which attract the provisions of Section 70 whereby Mahkuma Parishads are granted the right to settle by tender process for a period of one year. Section 77 appears to be the provision relating to private hats, that is, hats not established by or vested in Mahkuma Parishads. If a hat is established by Mahkuma Parishad Gaon Panchayat has no right to demand tax or fee from the Parishad. In the case of private hat, that is, hat not established by or not vested in Mahkuma Parishad or Gaon Panchayat according to Section 77, Gaon Panchayat may in proper cases issue an order that no such private land shall be used as hats without obtaining licences from the Gaon Panchayat. In such a case, tax can be imposed. This would make it clear that when an individual desires to establish a hat in private land, if Section 77(1) has been invoked by the Panchayat requiring taking out a licence from the Gaon Panchayat, the individual has to obtain licence and pay the tax prescribed therefore. It is for the individual to decide in what manner that hat should be operated. He is the owner of the hat and the hat is at his disposal, subject to the condition that he obtains a licence and pays the prescribed tax. It does not stand to reason that in the case of such a private hat for which a private individual is required to obtain a licence and pay tax, the Mahkuma Parishad can step in and settle it by tender or otherwise and collect revenue. The revenue must belong to the private individual who establishes the hat. It must necessarily follow that the words "all hats" used in Sub-section (1) of Section 70 must receive a narrow construction namely "all hats" which are established by or vest in offences under the Act proviso (a) to section 167(2) of the Code is applicable. The learned single Judge before whom these applications came up (Mrs. Sharma, J.) referred the matter to a Division Bench.

6. In Rajnikant Jivanlal Patel and anr. v. Intelligence Officer Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 [LQ/SC/1989/337] , the Vacation Judge considered the matter in the light of the provisions of the Act as it stood before the amendment by Act 2 of 1989 and held that a release order of bail on default under proviso (a) to section 167(2) of the Code is not an order passed in the exercise of discretion, but one passed by the command of the law and can be cancelled after the charge sheet is filed if the investigation reveals that the accused had committed a serious offence, as such an accused has no special right to remain on bail.

7. This decision has been overruled by the decision in Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 [LQ/SC/1992/615] . The offences involved in the later case are those punishable under the Indian Penal Code and not offences punishable under the Act and therefore the Supreme Court did not take into consideration the impact of the provisions of the amended Act and, in particular, section 37 of the Act. The court held that bail granted under proviso (a) to section 167(2) of the Code for failure to complete investigation and submit charge-sheet within the prescribed period cannot be automatically cancelled on the filing of the charge-sheet, though it can be cancelled for reasons germane to cancellation under section 437(5) and section 439(2) of the Code. The applicability of proviso (a) to section 167(2) of the Code was not in dispute and there was no intervention of any special statute, like the one under consideration in the present case.

8. The impact of section 37 of the Act (as amended) came up for consideration before the Supreme Court in Narcotics Control Bureau v. Kishanlal and ors., AIR 1991 SC 558 [LQ/SC/1991/49 ;] . Section 37 has imposed certain conditions on the power of releasing accused on bail in cases arising under the Act. The question was whether these restrictions would apply in relation to High Court also. The Supreme Court held that the limitations placed under section 37 of the Act on the power to grant bail are applicable to the High Court in relation to exercise of power to grant bail under section 439 of the Code. A close reading of the judgment shows that in that case also investigation was not completed and charge sheet was not filed within the stipulated period and an application for bail was moved invoking the proviso to section 167(2) of the Code. The High Court took the view that the limitations prescribed in section 37(2) of the Act did not fetter the power of the High Court under section 439 of the Code and this view was reversed by the Supreme Court in the light of the object of the Act, the stringent provision necessary to curb the menace of drugs, the non-obstante clause in section 37 of the Act and the provision in section 4(2) of the Code.

9. The Code, inter alia, prescribes procedure for investigation of offences and procedure to be followed by courts. Chapter V of the Code deals with arrest of persons. Section 57 states that no police officer shall detain in custody a person arrested without warrant for a longer period than is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates court. This provision reflects the constitutional concern for personal liberty manifested in Article 22(2) of the Constitution requiring a person arrested and detained in custody to be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond such period without the authority of a magistrate. Chapter XII deals with information to the police and their powers to investigate in cognizable and non-cognizable cases. Section 157 prescribes the procedure for investigation, which includes taking measures for the discovery and arrest of the offender. Section 167 deals with procedure when investigation cannot be completed in twenty-four hours. Where investigation is completed within twenty-four hours, section 170 of the Code requires the investigator to forward the accused under custody to the competent magistrate, or, if the offence is bailable and the accused is able to give security to take security from him for his appearance before such Magistrate. The Magistrate shall thereupon proceed with the matter and either remand the accused to custody or grant him bail on an appreciation of the facts and circumstances of the case. When the investigator forwards an accused under section 170, he must also forward a report under section 173 along with records referred to in sub-section (5) of section 173 of the Code. Cases where investigation cannot be completed within twenty-four hours are governed by section 167 of the Code. If there are grounds for believing that the accusation or information is well-founded the investigator shall forthwith transmit to the nearest Judicial Magistrate a copy of the case diary entries relating to the case along with the accused. This is the mandate of sub-section (1) of section 167 of the Code. According to sub-section (2) the Magistrate (if he has jurisdiction to try the case or commit it for trial) may from time to time authorise the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole; if the Magistrate has no such jurisdiction and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction.

10. The Code of 1898 did not contain any provision similar to the proviso to sub-section (2) of section 167 of the Code. In enacting the present Code, the proviso was incorporated with a view to prompt the investigator to complete investigation expeditiously so as to avoid harassment and harm to the parson arrested by prescribing a time limit for completion of investigation. The time limit prescribed under the Code has been modified in 1978. As the provision stands at present, in case of an offence punishable with death, imprisonment for a term of not less than ten years, investigation shall have to be completed within ninety days and in other cases, in sixty days, According to the proviso, the Magistrate may authorise detention otherwise than in the custody of the police beyond the period of fifteen days mentioned in sub-section (2) if he is satisfied that there are adequate grounds for doing so, but shall not authorise detention in custody for a total period exceeding ninety days, or sixty days, as the case may be, and on expiry of the period, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person so released on bail shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. According to sub-section (3), the detention must be supported by recorded reasons. It is clear that the release on bail contemplated under the proviso is not one ordered in the exercise of the judicial discretion of the Magistrate, but is one mandated by the statute. It is called release-on-default in some of decisions referred to earlier. Such release-on-default under proviso to section 167(2) is by legal fiction deemed to be one under Chapter XXXIII of the Code.

11. Power of the Magistrate to release on bail is derived from section 437 of the Code while the power of the Sessions Court or High Court is derived from section 439 of the Code. Section 437 empowers the Magistrate to grant bail and imposes certain limitations on the power, namely, that the accused shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The power of the Sessions Court and the High Court under section 439 is also subject to imitation that in the case of a person accused of an offence triable exclusively by the Sessions Court or in offence punishable with imprisonment for life, notice of the application shall be given to the Public Prosecutor unless, for reasons to be recorded in writing, the court is of opinion that it is not practicable to give such notice.

12. Default release by the Magistrate under proviso (a) to section 167(2) of the Code is deemed to be release under Chapter XXXIII of the Code, that is, section 437 of the Code. See, Gurcharan Singh and ors. vs. State (Delhi Administration), AIR 1978 SC 179 [LQ/SC/1977/334] . We notice the decision in State of U.P. vs. Lakshmi Brahman and anr., AIR 183 SC 439, that on the expiry of 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void. Proviso (a) to 167(2) speaks of completion of investigation, but courts have understood this as filing of the charge-sheet. That is because charge-sheet is laid on the completion of investigation. It is also worthwhile to notice that under the scheme or section 167 police custody cannot be ordered for more than 15 days. See, Central Bureau of Investigation vs. Anupam J. Kulkarni, AIR 1992 SC 1768 [LQ/SC/1992/398] .

13. We will now examine the provisions of the Act as it originally stood and as amended. The Act was intended to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected there-with. Central Government is required to take all necessary measures to prevent and combat abuse of these drugs and substances and illicit traffic therein and related matters. There is to be a committee to advise the Central Government. Chapter III contains provisions for prohibition, control and regulation. Chapter IV deals with offences and penalties. The application of section 360 of the Code and the Probation of Offenders Act, 1958 is negatived except in the case of a person under eighteen years of age or in case the conviction is under section 26 or section 27 of the Act. Section 35 provides for presumption of culpable mental state. Section 36, as it originally stood, required the offences to be tried summarily by a Magistrate of the first class. Section 37 made the offences cognizable. Chapter V deals with the procedure relating to issue of warrant and authorising the power of search, seizure or arrest without warrant, power of entry, search, seizure and arrest without warrant, power of seizure and arrest in public places, procedure where seizure of goods liable to confiscation not practicable, duties of land-holders and officers to give information, power of attachment of crop illegally cultivated, power to stop and search conveyance, disposal of persons arrested and articles seized. Section 51 lays down that the provisions of the Code shall apply in so far as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. Section 53 authorises the Central Govt. in consultation with the State Govt. to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or Border Security Force or any class of such officer with the powers of an officer-in-charge of a police station for the investigation of the offences under the Act. It has also conferred similar power on the State Government to invest such power in any officer of the department of drugs control, revenue or excise or any class of such officers. Sections 60 to 63 deal with confiscation.

14. The Act was drastically amended by Amending Act 2 of 1989. The statement of object and reasons of the amending Act states, inter alia.

"In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill over from such traffic has caused problems of abuse and addition. The Narcotic Drugs and Psychotropic substances Act, 1985 provides deterrent punishments for drug trafficking offences. Even though the major offences are non bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it has been felt. "

(Emphasis supplied)

Paragraph 2 of the statement states that in the light of the recommendations of the Cabinet Sub Committee and the working of the Act in the previous three years, it is proposed to amend the Act and the amendments, inter alia, provided for matters specified in the seven clauses. The seventh clause reads:

"(vii) to provide that the offences shall be cognizable and non bailable."

15. We will notice some of the relevant amendments. The Act has been amended to enable Central Government to control and regulate controlled substances and for punishment for contravention of orders thereof. Death penalty is introduced in regard to certain offences after previous conviction. One of the amendments makes it clear that no sentence awarded under the Act (other than section 27) shall be suspended, or remitted or commuted. Section 36 has been completely replaced by providing for constitution of special courts consisting, of a single Judge to be appointed by the Government with the concurrence of the Chief Justice of the High Court and the person to be appointed is required to be a Sessions Judge or an Additional Sessions Judge. Section 36-A dealing with offences triable by special courts, section 36-B dealing with appeal and revision section 36-C dealing with application of the Code to proceedings before a special court and section 36-D containing transitional provisions have been introduced and we shall refer to the same in due course. Section 37 has been drastically amended laying down that every offence punishable under the Act shall be cognizable and prescribing limitations in the matter of grant of bail. Section 53-A has been introduced rendering relevant statements made under certain circumstances. Chapter V-A relating to forfeiture of property derived from, or used in illicit traffic has been incorporated.

16. Clause (a) of sub-section (1) of section 36-A states that all offences under the Act shall be triable only by the Special Court. Clauses (b) and (c) modify section 167 of the Code to some extent in its applicability to offenders under the Act. These clauses read as follows:

"(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that where such Magistrate considers- (i) When such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him that the detention of such persons is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section."

16A. According to these provisions, where the Magistrate considers detention of such person is unnecessary, he shall direct him to be forwarded to the Special Court concerned and the Special Court may deal with him exercising power which the Magistrate having jurisdiction to try the case may exercise under section 167 of the Code. This would mean that while ordinarily power to order remand in the first instance is vested in the Magistrate concerned even in regard to a person arrested in connection with an offence under the Act, where the Magistrate considers detention unnecessary, he has no power to release him but is bound to forward him to the Special Court for appropriate action and it is the Special Court which has to consider the matter in the light of sub-section (2) of section 167 of the Code. In other words, if it is felt to be a case not warranting detention but warranting release, the court of higher status, namely, the Special Court alone can do it. Clause (d) of Sub-section (1) of section 36-A states that a Special Court may take cognizance of an offence without the accused being committed to it for trial and cognizance can be taken either upon a perusal of police report (that is, report under section 170 or 173 of the Code) or a complaint made by a competent officer as contemplated under section 190(1)(a) of the Code. Sub-section (3) saves the power of the High Court to grant bail under section 439 of the Code. Section 36-C lays down, inter alia, that save as otherwise provided in the 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 purpose of the said provisions, the Special Court shall be deemed to be a Court of session. Consequences of delay in establishment of Special Courts are avoided by the transitional provisions in section 36-D, according to which, until a special court is established any offence committed under the Act on or after the commencement of the Amending Act 2 of 1989 shall be tried by a Court of Session and offences punishable under sections 26, 27 and 32 may be tried summarily. According to clause (b) of sub-section (1) of section 37 of the Act, no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his own bond unless two conditions are satisfied, namely, the Prosecutor has been given an opportunity to oppose the application and where he opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Sub-section (2) states that the aforesaid limitations on grant of bail are in addition to the limitations under the Code or any other law for the time being in force for the grant of bail.

17. The object of the Act, inter alia, is to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The Act provides for deterrent punishments for various offences. The Act as it originally stood did not contain any provision indicating whether the offences under the Act are bailable or non bailable. Therefore, bailability or non-bailability had to be decided in the light of Part II of the First Schedule to the Code, according to which, offences punishable with death, imprisonment for life, or imprisonment for three years and upwards are non bailable and offences punishable with imprisonment for less than three years or with fine only are bailable. Viewed in this light, the major offences under the Act are non bailable. The Act was amended to prevent the release of drug offenders on technical ground. To find out what is the technical ground sought to be avoided, one has to examine, sections 167, 437 and 439 of the Code. We do not find any such technical ground in section 437 or section 439 of the Code. The only technical ground is the one found in proviso (a) to section 167(2) of the Code mandating release on bail of an accused person where the investigation has not been completed within the stipulated period of ninety days or sixty days, as the case may be. The statement of objects and reasons of the Amending Act 2 of 1989 would show that the legislature intended to over come this technical ground contained in proviso (a) to sub-section (2) of section 167 of the Code.

18. Section 37(1) of the Act commences with the non obstante clause "notwithstanding anything contained in the Code of Criminal Procedure, 1973." The non obstante clause applies to clause (b) of sub-section (1) of section 37 also. Clause (b) introduces limitations on the power of granting bail. Clause (b) does not indicate that the limitations are only with reference to the power of the Magistrate. The limitations would apply to the Special Court and the High Court also as has been made clear in Kishan Lals case (AIR 1991 SC 558 [LQ/SC/1991/49 ;] ).

19. The last part of proviso (a) to sub section (2) of section 167 of the Code makes it clear that every person released on bail under the sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. Section 36-C of the Act indicates that for the purposes of the provisions of the Code, the Special Court shall be deemed to be a Court of Session. Therefore, the limitations contained in clause (b) of sub-section (1) of section 37 of the Act would fetter the jurisdiction of the Special Court to grant bail. There is nothing in section 37 of the Act to indicate that the fetter has no relation to the jurisdiction to grant bail under proviso (a) to section 167(2) of the Code. Bail granted under this proviso shall be deemed to be bail granted under Chapter XXXIII of the Code. It is therefore clear that clause (b) of sub-section (1) of section 37 of the Act must necessarily override proviso (a) to section 167(2) of the Code. Section 37 of the Act would apply notwithstanding anything contained in the Code.

20. It is argued that section 167 of the Code deals with non-completion of investigation and the duty of the Magistrate to release on bail under proviso (a) to section 167(2) arises in the event of non-completion of investigation, but arrest can be made and prosecution can be launched under the Act not only by an officer-in-charge of a Police Station but also by an officer empowered by the Central Govt. or the State Government and such person has no power to investigate an offence under the Act and to file a final report under section 173 of the Code and, therefore, the jurisdiction under proviso (a) to section 167(2) of the Code survives notwithstanding section 37 of the Act. We do not agree with this contention for the reasons which we will presently indicate.

21. It is true that an officer empowered under section 53 of the Act is not a Police Officer and cannot submit a report or charge-sheet under section 173 of the Code as is made clear in Raj Kumar Karwal vs. Union of India and ors, AIR 1991 SC 45 [LQ/SC/1990/171] ; but that does not mean that he has no power of investigation or to initiate prosecution. The power which can be invested in officers under section 53 of the Act is "for the investigation of offences under this Act". In other words, vesting of power of investigation in such an officer is statutorily sanctioned, though thereby he does not become officer-in-charge of a Police Station. Though such an officer can investigate offence under the Act and though he cannot file report of charge-sheet under section 173 of the Code, he can make a complaint before the Special Court as contemplated in clause (d) of-sub-section (1) of section 36-A of the Act. Necessarily such an officer who makes an arrest is bound to abide by the provisions of sub-sections (1) and (2) to section 167 of the Code. Though section 37 does not expressly state that it override proviso (a) to section 167(2) of the Code, such overriding effect is implicit in the provisions of section 37 viewed in the setting of the entire schema of the Act relating to investigation and prosecution. This is supported by the provisions in sub-section (2) of section 4 of the Code stating that all offences under any law other than he Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences as also the provisions in section 5 of the Code stating that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The clarification in sub-section (2) of section 37 that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code have no bearing on the question of applicability of clause (b) of sub-section (1) overriding proviso (a) to section 167(2) of the Code.

22. We therefore hold that the provision in clause (b) to sub-section (1) of section 37 of the Act overrides the provision in proviso (a) to section 167(2) of the Code and no person arrested in connection with any offence under the Act has a right to be released on default or on the technical grounds under proviso (b) to section 167(2) of the Code. We are in agreement with the view taken by the High Courts of Bombay and Jammu and Kashmir, though the reasons which weighed with us are different from the reasons which weighed with the High Court of Jamuu and Kashmir. The decision in Manjit Dass case, 1992 (1) GLJ 238 does not lay down good law.

23. Special Courts have not been constituted in the State of Assam and therefore the transitional provisions in section 36-D of the Act are applied in this State. It is argued that whatever may be the position in regard to Special Court, that may not apply to the Court of Session when it deals with an offence under the Act. We are unable to agree. The Act takes over so me of the offences under several existing statutes, creates new offences, creates new machinery for investigation and new courts for trying such offences. It is a complete code in itself. Provisions of the Code are applicable to the extent permitted under the Act. Section 36-D makes it clear that until a Special Court is constituted offences under the Act shall be tried by a Court of Session. Even if a Special Court is constituted, by virtue of section 36-C of the Act, the Special Court shall be deemed to be a Court of Session and the person conducting a trial before the Special Court shall be deemed to be a Public Prosecutor. This would mean that until a Special Court is constituted the Sessions Court is to discharge all the functions and duties of the Special Court. Therefore the provisions in clause (b) of sub-section (1) of section 37 of the Act would apply to the Sessions Court exercising jurisdiction under the Act. We may also clarify that Sessions Court is to try the case even without a committal by the Magistrate, since committal is foreign to the scheme introduced by the Act.

24. In view of our finding that proviso (a) to sub-section (2) of section 167 of the Code is inapplicable to persons arrested in connection with an offence under the Act, applicants are not entitled to bail under that provision.

25. The applications are therefore dismissed.