Law Web: Bombay HC: Court should not grant an extension of time for investigation in NDPS Case if police fail to disclose the progress of the probe

The Application dated 06.05.2020, purported to be the report

under the proviso to sub-section (4) of Section 36 A is signed by the

complainant/Investigating Officer. The said application was submitted

to the Court by the learned APP on 08.05.2020 by merely appending

his signature at the bottom of the page, without even making an

endorsement that he had perused the grounds and that he was satisfied

about the progress of the investigation and the reasons set out for

extension of time to complete the investigation. The decision in

Surendra Pundalik Gadling( supra)is not applicable to the facts of the

case as in the present case the application does not even remotely

reflect independent application of mind by the public prosecutor. The

application dated 6.5.2020 is nothing but a transmission of the request

of an Investigating Officer for extension of time. Such request, which is

submitted without being satisfied of the progress of the investigation

and the reasons of detention, cannot be construed as a report of the

public prosecutor as envisaged by proviso to Sub-section (4) of Section

36(A) of the NDPS Act.

32. It is also pertinent to note that the reasons stated in the

application for extension of time are that the persons involved in

abetting the accused no.2 could not be summoned and their statements

could not be recorded, Chemical Analysis Report and Call Details

Report could not be obtained and related investigation could not be

completed due to lock down declared in the country in view of Covid

19 pandemic. Thus, the main reason for seeking extension is inability

to complete the investigation due to lockdown declared because of

Covid 19 pandemic.

33. The application/report dated 6.5.2020 only gives the details of

investigation carried out on 12.11.2019 viz. the arrest of the applicant

and the seizure of the contraband substances allegedly recovered from

the applicant. The report does not disclose the progress of

investigation, which is one of the requirements of report for extension,

under proviso to sub section (4) of Section 36A of NDPS Act. It is also

pertinent to note that the Applicant was arrested on 12.11.2019,

whereas the lockdown was declared on 23.03.2020. The

application/report does not disclose the progress of the investigation

conducted during this four and half months period i.e. from the date of

the arrest till the date of the lock down. The report does not reflect

steps taken for recording the statements of the witnesses and calling for

the CDR and Chemical Analysis report during this period of four and half months. Under the circumstances, the reasons stated in the

application cannot be considered as genuine. There are no justifiable

reasons for extending the time for completing the investigation. Suffice

it to say that the prayer for extension of time, which directly affects the

liberty of the applicant, cannot be granted on the basis of an

application/report which is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act. As a necessary corollary thereof, the applicant is entitled for bail under Section 167(2) of Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LD/VC/OCR/115/2020

Nayantara Gupta Vs The State of Maharashtra

CORAM: SMT. ANUJA PRABHUDESSAI, J.

Dated : 10th AUGUST, 2020.

. The Applicant has challenged the legality of the orders dated

11/5/2020 and 15/05/2020 passed by the learned N.D.P.S. Special

Judge, Pune, in CNR No.MHPU01-005675 of 2020.

2. The Applicant is named as an accused in Cr. No.14 of 2019

registered by (Narcotics Cell), Customs Pune. The case of the

prosecution, in brief, is that on 12/11/2019 the Narcotic Cell at Pune

received specific information that the Applicant herein was engaged in

selling Mephedrone (MD) and LSD stamps from the Clover Highland,

NIBM Road, (near Dorabjee Stores) Pune to potential customers in

Pune area. On the same day i.e. 22.11.2019, the officers of Customs

Narcotics Cell, Pune searched the aforesaid premises under Panchanma

and recovered from the applicant transparent plastic pouch containing

off white coloured powder like substance and a pouch containing some

stamp like substances. The substance was tested using Field Testing Kit

and the same tested positive for Mephadrone and LSD Lysergic Acid.

The off white coloured substance purported to be Mephadrone

weighing 54 gms, valued at Rs.3,24,000/- and 416 perforated stamps

purported to be LSD Lysergic Acid valued at Rs.20,80,000/- was seized

and FIR was registered against the Applicant for offences under for

offences under sections 8 (c), 21 (b), 29 (1) of the Narcotic Drugs and

Psychotropic Substances Act,1985 herein after referred as NDPS Act.

The Applicant was arrested on 12/11/2019 and was produced before

the remand Court on 13/11/2019. She has been remanded to judicial

custody from time to time.

3. The period of 180 days, as prescribed under sub section (4) of

Section 36A of NDPS Act for completing the investigation/ filing

complaint was to expire on 11.05.2019. On 08/05/2020, before the

expiry of 180 days of detention, the learned App submitted an

application for extension of the period to complete the investigation

and to file the complaint. Extension was sought mainly on the ground

of inability to summon and record the statements of the persons

alleged to have abetted the accused and for non availability of of

Chemical Analyses Report and Call Detail Report due to disruption

caused by Covid 19 situation. Reliance was also placed on order dated

23/3/2020 passed by the Hon'ble Supreme Court in Suo Moto Writ

Petition (civil) No.3 of 2020 extending the period of limitation

w.e.f.23/3/2020 until further orders, to obviate difficulties faced by the

litigants due to Covid 19 situation.

4. The learned Spl. Judge considered the prayer for extension on

11.5.2020 and passed the following order:_

"Perused the Application. In suo moto WP (Civil)

No(s).3/2020 the Hon'ble Apex Court has extended period of

limitation in all proceedings. Therefore, there is no need for

passing extension order by this court, since the limitation

stands extended by the order of the Hon'ble Apex court."

5. On 12.05.2020, the Applicant filed an Application for Bail

No.1710/2020 under Section 167(2)Cr.P.C. r/w Section 36A of the

NDPS Act. It was contended that the order of the Hon'be Apex Court in

suo moto petition was not applicable in as much as it does not extend

the period for filing the charge sheet. It was further contended that the

Applicant has right to be heard on the question of extension of period of investigation.

6. The prosecution resisted the application mainly on the ground

that the Applicant was arrested for offences involving commercial

quantity of contraband substance. It was further contended that that in

view of the directions issued by the Hon'ble Supreme Court, the

limitation period for filing the complaint stood extended and hence the

application for default bail was not maintainable.

7. By the impugned order dated 15/05/2020, the learned Judge

dismissed the application for bail. The relevant portion of the

impugned order reads thus:

"6. In suo moto, Writ Petition (Civil) No.(3)/2020), the

Hon'ble Apex Court has extended the period of limitation.

On 06/05/2020 the Inspector of Customs, Pune had made

application Exh.5 to the Court for extension of period of

limitation for filing the chargesheet. By the order dated

11/05/2020 my brother judge has observed that the

Hon'ble Apex Court has extended the period of limitation in

all proceedings. Therefore, there is no need for passing

extension order by this Court, since the limitation stands

extended by the order of the Hon'ble Apex Court. This

order clearly implies that impliedly my brother judge has

extended the period of limitation for filing charge sheet. If

the accused is aggrieved by that order, then he has to

challenge it before the appropriate forum. Since the

limitation for filing the charge sheet is extended by my

brother judge impliedly, the application u/s. 167 (2) of

Cr.P.C. is not maintainable. Therefore the application

deserves to be rejected."

8. Mr. Gaurav Thote, learned counsel for the Applicant submits that

copy of the application for extension of time was not served on the

Applicant, and that the learned judge has decided the application in the

absence of the applicant, without disclosing the grounds of extension.

This is in gross violation of the law laid down by the Hon'ble Supreme

Court in the case of Sanjay Dutt vs State (1994)5 SCC 410 and Sanjay

Kumar Kedia v/s. Narcotics Control Bureau (2009) 17 SCC 631.

9. He submits that the Application for extension is signed by the

Investigating Officer and merely submitted by the Public Prosecutor

without due application of mind. He contends that the said application

cannot be construed as a report of the public prosecutor as envisaged

in the proviso to sub section (4) of Section 36A of the NDPS Act.

10. The learned Counsel for the applicant further submits that the

report does not disclose the progress of investigation and does not spell

out the reasons for extension. Relying upon the decision of the Apex

Court in Hitendra Vishnu Thakur and ors. v/s. State of Maharashtra

and Ors. (1994) 4 SCC 602, the learned Counsel for the applicant

contends that the report is not a mere formality but requires due

application of mind as to the ground for delay and the reasons for

further detention. He submits that the application/report does not

meet the requirements envisaged in the proviso to sub section(4) of

Section 36A of NDPS Act. He submits that an indefeasible right

accrued in favour of the Applicant could not have been defeated and

her liberty could not be curtailed in such a casual manner.

11. The learned counsel for the Applicant has relied upon the

decision of the Hon'ble Apex Court in S. Kasi vs State Through The

Inspector Of Police Samaynallur Police Station Madurai District, on 19th

June, 2020 in Criminal Appeal No.452 of 2020 to contend that the

order dated 23/3/2020 passed by the Hon'ble Supreme Court in Suo

Moto Writ Petition (civil) No.3 of 2020 has no consequence on the right

accrued to the accused under section 167 Cr.PC or 36A NDPS Act. He

therefore contends that the time limit for filing the complaint was not

extended by virtue of order dated 23.3.2020 in Suo Moto Writ Petition.

He submits that there cannot be implied extension of period of

limitation prescribed under Section 167 Cr.P.C or 36A NDPS Act. The

complaint was not filed within the time prescribed under Section 36A

of the NDPS Act, hence an indefeasible right had accrued in favour of

the applicant. This right, which was availed by the applicant before

filing of the charge sheet, could not have been defeated by contending that there was an implied extension of period.

12. The learned APP submits that the application for extension of

time was filed before the expiry of 180 days. The prosecutor has

appended his signature at the end of the application. Relying upon the

decision of the Apex Court in the State of Maharashtra v/s. Surendra

Pundlik Gadling and ors. (2019) 5 SCC 178, he submits that the said

application meets the requirement of proviso under Section 36-A(4) of

NDPS Act.

13. The learned APP further contends that the learned Judge had not

dismissed the application for extension of time, but had refrained from

passing an order in view of the order of the Hon'ble Apex Court in Suo

Moto Writ Petition No. 3 of 2020. He therefore contends that no

indefeasible right had accrued in favour of the petitioner and that at

the best it was only an inchoate right. He has also relied upon the

decision of the Apex Court in Rambeer Shokeen vs. State of NCT of

Delhi 2018 (2) SCC Cri. 498, decision of this court in Prasad Rama

Harmalkar v/s. State of Goa in Criminal Bail Application No.164 of

2009, and the decision of Delhi High Court in Sarjilimum vs. State of

NCT Delhi in Criminal M.C. No.1475 of 2020 dated10/07/2020. He

further submits that the investigation could not be completed and the complaint could not be filed within the prescribed period due to non

availability of the witnesses, as well as non availability of Chemical

Analyser's report and Call Detail Report in view of disruption caused by

COVID-19 pandemic. He therefore contends that there are reasonable

and genuine grounds for extending the time and that the applicant is

not entitled for default bail.

14. I have perused the records and considered the submissions

advanced by the learned counsels for the respective parties.

15. The Applicant has questioned the legality and propriety of the

impugned order on the ground of infringement of indefeasible right to

be released on statutory bail under section 167 (2) Cr.P.C. Before

adverting to the facts of the case it would be advantageous to refer to

the relevant provisions and the law on the subject. The right to bail is

inextricably linked to the right guaranteed under Article 21 of the

Constitution of India, which inter alia provides that no person shall be

deprived of personal liberty except according to procedure established

by law. Whereas Article 22(2) mandates that every person who is

arrested and detained in custody shall 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 the

arrest to the court and no such person shall be detained beyond the

said period without the authority of a magistrate. Section 57 of the

Cr.P.C., which creates an embargo on detention of a person arrested

without warrant for a period exceeding 24 hours, exclusive of time

necessary for the journey from the place of the arrest to the court, in

the absence of a special order under section 167 Cr.P.C, secures this

constitutional object and mandate. Sub section 2 of Section 167 deals

with powers of the Magistrate to detain the accused in custody where

the investigation relates to an offence punishable with death,

imprisonment for life or imprisonment for a term of not less than ten

years and for 60 days, where the investigation relates to any other

offence. The proviso to sub section (2) of Section 167 confers powers

on the magistrate to release the accused on bail if the investigation is

not completed within this period and the accused makes an application

for that purpose and is prepared to furnish bail.

16. In S. Kasi (supra), while reiterating the scope and object of

Section 167 (2), the Apex Court has observed that the provisions of

Section 57 as well as Section 167 are supplementary to each other,

which recognize right of personal liberty of a person as enshrined in the Constitution of India. It has been held that the proviso to sub

section 2 of Section 167 is a beneficial provision for curing the mischief

of indefinitely prolonging the investigation thereby affecting the liberty

of a citizen. The Apex Court has held that the right for default bail is

indefeasible right, which cannot be allowed to be frustrated by the

prosecution on any pretext. The Apex Court after referring to several

earlier judgments, has reiterated that except under special enactments,

which have modified the provisions of the Code including section 167

empowering the Court to extend the period, no court can directly or

indirectly extend such period of 90 days or 60 days, as the case may be.

17. The NDPS Act is one such special enactment which under subsection

(4) of section 36A has modified the period of 90 days stipulated

in sub section (2) of section 167 to 180 days for certain categories of

offences and has further empowered the Court to extend such period

for further maximum period up to one year. In Sanjay Kumar Kedia

v/s. Narcotics Control Bureau (2009) 17 SCC 631, while dealing with

the provisions of NDPS Act, the Apex Court has observed as under :-

"Section 167 of the Code deals with the procedure wherein

investigation cannot be completed in 24 hours and the

various sub-sections provide for the maximum period

beyond which a person cannot be detained and this period

varies between 60 and 90 days keeping in view the gravity

of the offence - the maximum period of 90 days being

provided with respect to offences punishable with death

etc. and 60 days for other offences, and if the investigation

is not completed within this period, the accused is entitled

to bail under Section 167 sub-section (2) if he makes an

application for that purpose and is prepared to furnish bail.

It will be seen that Section 167 does not envisage an

extension of the period of detention of an accused in

custody beyond the specified periods. The legislature,

however, thought in its wisdom, that certain special

categories or situations required that the investigating

agencies should be given more time to investigate a matter

and to file their complaint or charge-sheets and such

provisions have been made under special statutes.

8. The Terrorist and Disruptive Prevention Act, 1987

(hereinafter called the `TADA') and the Act are two such

special legislations. Section 36A (4) of the Act in so far as

is relevant, reads as under :-

"Section 36 A.

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974),-

(a) xxxx

(b) xxxx

(d) xxxx (2) xxxx (3) xxxx

(4) In respect of persons accused of an offence punishable

under Section 19 or Section 24 or section 27 A or for

offences involving commercial quantity the references in

sub-section (2) of section 167 of the Code of Criminal

Procedure, 1973 (2 of 1974), thereof to "ninety days",

where they occur, shall be construed as reference to "one

hundred and eighty days":

Provided that, if it is not possible to complete the

investigation within said period of one hundred and eighty

days, the Special Court may extend the said period up to

one year on the report of the Public Prosecutor indicating

the progress of the investigation and the specific reasons

for the detention of the accused beyond the said period of

one hundred and eighty days.

(5) xxxx

9. The maximum period of 90 days fixed under Section

167 (2) of the Code has been increased to 180 days for

several categories of offences under the Act but the proviso

authorizes a yet further period of detention which may in

total go upto one year, provided the stringent conditions

provided therein are satisfied and are complied with. The

conditions provided are:

(1) a report of the public prosecutor, (2) which indicates

the progress of the investigation, and (3) specifies the

compelling reasons for seeking the detention of the

accused beyond the period of 180 days, and (4) after

notice to the accused.”

18. In Hitendra Vishnu Thakur and ors.(supra), the Apex Court while

considering the scope of the proviso inserted as clause (bb) in subsection

(4) of Section 20 of TADA, which is pari materia with the

proviso to Sub-Section (4) of Section 36-A of the NDPS Act, has

highlighted the importance of the report of the public prosecutor and

emphasized that he is neither a 'post office' of the investigating agency

nor its 'forwarding agency' but is charged with a statutory duty. The

relevant paragraph reads thus:-

"23. We may at this stage, also on a plain reading of clause

(bb) of sub-section (4) of Section 20, point out that the

Legislature has provided for seeking extension of time for

completion of investigation on a report of the public

prosecutor. The Legislature did not purposely leave it to an

investigating officer to make an application for seeking

extension of time from the court. This provision is in tune

with the legislative intent to have the investigations

completed expeditiously and not to allow an accused to be

kept in continued detention during unnecessary prolonged

investigation at the whims of the police. The Legislature

expects that the investigation must be completed with utmost

promptitude but where it becomes necessary to seek some

more time for completion of the investigation, the

investigating agency must submit itself to the scrutiny of the

public prosecutor in the first instance and satisfy him about

the progress of the investigation and furnish reasons for

seeking further custody of an accused. A public prosecutor is

an important officer of the State Government and is

appointed by the State under the Code of Criminal

Procedure. He is not a part of the investigating agency. He is

an independent statutory authority. The public prosecutor is

expected to independently apply his mind to the request of

the investigating agency before Submitting a report to the

court for extension of time with a view to enable the

investigating agency to complete the investigation. He is not

merely a post office or a forwarding agency. A public

prosecutor may or may not agree with the reasons given by

the investigating officer for seeking extension of time and

may find that the investigation had not progressed in the

proper manner or that there has been unnecessary, deliberate

or avoidable delay in completing the investigation. In that

event, he may not submit any report to the court under

clause (bb) to seek extension of time. Thus, for seeking

extension of time under clause (bb), the public prosecutor

after an independent application of his mind to the request of

the investigating agency is required to make a report to the

Designated Court indicating therein the progress of the

investigation and disclosing justification for keeping the

accused in further custody to enable the investigating agency

to complete the investigation. The public prosecutor may

attach the request of the investigating officer along with his

request or application and report, but his report, as envisaged

under clause (bb), must disclose on the face of it that he has

applied his mind and was satisfied with the progress of the

investigation and considered grant of further time to

complete the investigation necessary. The use of the

expression "on the report of the public prosecutor indicating

the progress of the investigation and the specific reasons for

the detention of the accused beyond the said period" as

occurring in clause (bb) in sub-section (2) of Section 167 as

amended by Section 20(4) are important and indicative of

the legislative intent not to keep an accused in custody

unreasonably and to grant extension only on the report of the

public prosecutor. The report of the public prosecutor,

therefore, is not merely a formality but a very vital report,

because the consequence of its acceptance affects the liberty

of an accused and it must, therefore, strictly comply with the

requirements as contained in clause (bb). The request of an

investigating officer for extension of time is no substitute for

the report of the public prosecutor. Where either no report as

is envisaged by clause (bb) is filed or the report filed by the

public prosecutor is not accepted by the Designated Court,

since the grant of extension of time under clause (bb) is

neither a formality nor automatic, the necessary corollary

would be that an accused would be entitled to seek bail and

the court 'shall' release hi on bail if he furnishes bail as

required by the Designated Court. It is not merely the

question of form in which the request for extension under

clause (bb) is made but one of substance. The contents of the

report to be submitted by the public prosecutor, after proper

application of his mind, are designed to assist the Designated

Court to independently decide whether or not extension

should be granted in a given case. Keeping in view the

consequences of the grant of extension i.e. keeping an

accused in further custody, the Designated Court must be

satisfied for the Justification, from the report of the public

prosecutor, to grant extension of time to complete the

investigation. Where the Designated Court declines to grant

such an extension, the right to be released on bail on account

of the 'default' of the prosecution becomes indefeasible and

cannot be defeated by reasons other than those contemplated

by sub-section (4) of Section 20 as discussed in the earlier

part of this judgment. We are unable to agree with Mr

Madhava Reddy or the Additional Solicitor General Mr Tulsi

that even if the public prosecutor 'presents' the request of the

investigating officer to the court or 'forwards' the request of

the investigating officer to the court, it should be construed

to be the report of the public prosecutor. There is no scope

for such a construction when we are dealing with the liberty

of a citizen. The courts are expected to zealously safeguard

his liberty. Clause (bb) has to be read and interpreted on its

plain language without addition or substitution of any

expression in it. We have already dealt with the importance

of the report of the public prosecutor and emphasized that he

is neither a 'post office' of the investigating agency nor its

'forwarding agency' but is charged with a statutory duty. He

must apply his mind to the facts and circumstances of the

case and his report must disclose on the face of it that he had

applied his mind to the twin conditions contained in clause

(bb) of sub-section (4) of Section 20. Since the law requires

him to submit the report as envisaged by the section, he must

act in the manner as provided by the section and in no other

manner. A Designated Court which overlooks and ignores the

requirements of a valid report falls in the performance of one

of its essential duties and renders its order under clause (bb)

vulnerable. Whether the public prosecutor labels his report as

a report or as an application for extension, would not be of

much consequence so long as it demonstrates on the face of it

that he has applied his mind and is satisfied with the progress

of the investigation and the genuineness of the reasons for

grant of extension to keep an accused in further custody as

envisaged by clause (bb) (supra). Even the mere

reproduction of the application or request of the investigating

officer by the public prosecutor in his report, without

demonstration of the application of his mind and recording

his own satisfaction, would not render his report as the one

envisaged by clause (bb) and it would not be a proper report

to seek extension of time. In the absence of an appropriate

report the Designated Court would have no jurisdiction to

deny to an accused his Indefeasible right to be released on

bail on account of the default of the prosecution to file the

challan within the prescribed time if an accused seeks and is

prepared to furnish the bail bonds as directed by the court. "

19. In Hitendra Thakur (supra) the Apex Court had observed that

though Clause (b) or Clause (bb) of Sub section (4) of Section 20 TADA

does not specifically provide for the issuance of notice to the accused,

such notice must be read into these provisions both in the interest of

accused and the prosecution as to do complete justice between the

parties. In Sanjay Dutt (supra) the Constitution Bench of the Apex

Court while considering the requirement of notice as well as the nature

of indefeasible right of the accused to be released on bail by virtue of

Section 20(4)(bb) has held that :

" 2)(a) Section 20(4)(bb) of the TADA Act only requires

production of the accused before the court in accordance

with Section 167(1) of the Code of Criminal Procedure and

this is how the requirement of notice to the accused before

granting extension beyond the prescribed period of 180 days

in accordance with the further proviso to clause (bb) of subsection

(4) of Section 20 of the TADA Act has to be

understood in the Judgment of the Division Bench of this

Court in Hitendra Vishnu Thakur. The requirement of such

notice to the accused before granting the extension for

completing the investigation is not a written notice to the

accused giving reasons therein. Production of the accused at

that time in the court informing him that the question of

extension of the period for completing the investigation is

being considered, is alone sufficient for the purpose.

(2)(b) The 'indefeasible right' of the accused to be released on

bail in accordance with Section 20(4)(bb) of the TADA Act

read with Section 167(2) of the Code of Criminal Procedure

in default of completion of the investigation and filing of the

challan within the time allowed, as held in Hitendra Vishnu

Thakur is a right which ensures to, and is enforceable by the

accused only from the time of default till the filing of the

challan and it does not survive or remain enforceable on the

challan being filed. If the accused applies for bail under this

provision on expiry of the period of 180 days or the extended

period, as the case may be, then he has to be released on bail

forthwith. The accused, so released on bail may be arrested

and committed to custody according to-the provisions of the

Code of Criminal Procedure. The right of the accused to be

released on bail after filing on the challan, notwithstanding

the default in filing it within the time allowed, as governed

from the time of filing of the challan only by the provisions

relating to the grant of bail applicable at the stage."

20. It is thus certain that under Section 36A of NDPS Act, which is a

special legislation, the Court is authorized to detain a person accused of an offence under Section 19 or 24 or 27A or for offences involving

commercial quantity for a period of 180 days. The proviso to sub-

Section (4) of Section 36A also enables the Special Court to extend the

period of investigation and to detain the accused pending such

investigation for a maximum period upto one year. Such extension can

be granted only on the report of the public prosecutor indicating the

progress of the investigation and setting out the reasons for detention

of the accused beyond the period of 180 days. The law as expounded in

Hitendra Thakur (supra) makes it clear that the report is not a mere

formality but must indicate due application of mind and subjective

satisfaction of the public prosecutor regarding progress of the

investigation and specific reasons for the detention of the accused

beyond the prescribed period. Satisfaction of this twin condition is

therefore a prerequisite of request for extension of time for

investigation. Though it is not necessary to issue a written notice to the

accused about extension of time, principles of natural justice shall

stand complied with on producing the accused and informing him that

the question of extension of period of completing the investigation is

being considered. Satisfaction of the court in respect of the report of

the public prosecutor is a sine qua non for extension of time to

complete the investigation.

21. An indefeasible right accrues in favour of the accused for being

released on bail when the investigating agency fails to file the challan

within the prescribed period, or fails to apply for extension of time to

complete the investigation or when the prayer for extension is rejected

by the Court. Nevertheless, such right can be enforced only when the

accused applies for bail and is ready to furnish surety. In such

circumstances, the Court has no other option but to release the accused

on bail. The dictum of the Constitution Bench of the Hon'ble Supreme

Court in Sanjay Dutt (supra) is that the indefeasible right accrued in

favour of the accused is enforceable only prior to the filing of the

challan. When such right is already availed of, the accused has

indefeasible right to be released on bail notwithstanding subsequent

filing of challan. On the other hand, the right for default bail, if not

already availed of, would stand extinguished and become

unenforceable once the challan is filed. In such a situation the

provision under section 167 ceases to apply and the question of grant

of bail has to be considered on merits of the case under the provisions

relating to grant of bail.

22. It is also well settled that if the prayer for extension of time to

complete investigation is made before the expiry of the prescribed

period and the accused also files application for bail, both applications

should be considered together. The right of the accused remains to be

inchoate till the application for extension is decided and the grant of

bail is subject to rejection of prayer for extension of time to complete

the investigation.

23. In the instant case, the records indicate that the applicant was

arrested on 12.11.2019 for offences under NDPS Act involving

commercial quantity. She had been produced before the Court on

13.11.2019 and pending investigation remanded to judicial custody

from time to time. The statutory period of 180 days, as prescribed in

Section 36A of the NDPS Act was to expire on 11.5.2020. Even before

expiry of the said period, an application was filed under proviso to sub

section (4) of Section 36A of the NDPS Act for extension of period to

complete the investigation. It is seen that the Applicant was not

produced before the court and was not informed of the grounds of

extension. Furthermore, a perusal of the order dated 11.05.2020

reveals that the application was neither granted nor rejected on merits

but the learned judge had refrained from passing any order on the said

application in view of the order passed by the Apex Court in suo moto

WP (Civil) No.3 of 2020 extending the period of limitation.

24. On the very next day, i.e on 12.05 2020, the applicant filed an

application for bail under section 167(2) of Cr.P.C. contending that the

order of the Apex Court in Suo Moto WP (Civil) NO.3 of 2020 was not

applicable and that there was no extension of time to file the challan.

The application for extension of time was not expressly granted or

rejected. Hence, in view of the dictum in Sanjay Dutt (supra) the

concerned Court could not have assumed jurisdiction to consider the

prayer for grant of statutory bail, which was filed during the pendency

of the application for extension of time to complete investigation. Since

the application for grant of statutory bail was dependent on rejection of

prayer for extension, of time, it was the duty of the Court to consider

the prayer for extension of time and decide the same on merits. It was

only upon extension of time for investigation that the Court could

reject the application for statutory bail. By the impugned order dated

15.05.2020, the learned judge dismissed the said application on the

ground that the Apex Court has already extended the period of

limitation in all proceedings. Referring to the order dated 11.05.2020,

the learned judge has observed that the predecessor judge has

impliedly extended the period of limitation for filing the charge sheet

and hence the application for bail under section 167(2) Cr.P.C. was not maintainable.

25. It is pertinent to note that in S. Kasi (supra) the Apex Court has

held that the order dt. 23.3.2020 in Suo Moto Wp (Civil) NO.3 of 2020

never meant to curtail any provision of the Code of Criminal procedure

or any other statute which was enacted to protect the personal liberty

of a person. It has been held that the right of prosecution to file a

charge sheet even after a period of 60 days/90 days is not barred. The

prosecution can very well file a chargesheet after 60 days/90 days but

without filing a charge sheet they cannot detain an accused beyond a

said period when the accused prays to the court to set him at liberty

due to non-filing of the charge sheet within the period prescribed. The

right of prosecution to carry on investigation and submit a chargesheet

is not akin to right of liberty of a person enshrined under Article 21 and

reflected in other statutes including Section 167 Cr.P.C. The Apex

Court has concluded that

"We thus, are of the view that neither this Court in its order

dated 23.3.2020 can be held to have eclipsed the time

prescribed under Section 167(2) of Cr.P.C. nor the

restriction which have been imposed during the lockdown

announced by the Government shall operate as any

restriction on the rights of an accused as protected by

Section 167(2) regarding his indefeasible right to get a

default bail on non-submission of charge sheet within the

time prescribed."

26. It is thus well settled that the extension of limitation vide order

in Suo Moto WP (Civil) No.3 of 2020 has no application to period

contemplated in section 167 Cr.P.C. It is pertinent to note that the

impugned order dated 11/5/2020 was passed in the absence of the

applicant without informing her the grounds of extension. In the bail

application filed on the very next date, the applicant had raised the

issue of applicability of order in suo moto Writ Petition No.3 of 2020 to

the period contemplated in Section 167 of Cr.P.C. The learned Judge

has brushed aside this issue by observing that the predecessor judge

has impliedly extended the period of investigation. Suffice it to say

that the law does not recognize implied extension of time envisaged

under sub section (4) of Section 36A of the NDPS Act. Moreover,

personal liberty guaranteed by the Constitution of India is too precious

a right to be tinkered with or defeated by implied extension of time for

investigation.

27. It is pertinent to note that Section 167 Cr.P.C. vests powers in the

court to detain a person accused of offences for a maximum period of

90 or 60 days as specified therein. Section 167 does not authorize

extension of the period of detention beyond the specified period.

Whereas, in respect of offences referred to in Section 36A, the

maximum period of detention is 180 days, with further powers to

extend such period upto one year. This procedural safeguard of

stipulating the maximum period of detention is to protect the accused

from indefinite incarceration and to have the investigation completed

with utmost promptitude. However, taking note of the fact that certain

categories of offences require more time for investigation, the

legislature has made provision for extension of time in certain special

statutes. The object of conferment of such power is to strike a balance

between the rights of the accused and the societal interest.

28. The NDPS Act is a special enactment, enacted to curb the

wide spread menace of clandestine smuggling and illegal trafficking of

narcotic drugs and psychotropic substance. Proviso to sub section (4)

of Section 36-A NDPS Act, is one of such specific provisions, which

enables the Court to extend the period of detention for a further period

up to one year. Undisputedly, such extension, which tends to curtail

personal liberty, cannot be mechanical but has to be with due

application of mind and on being satisfied about the progress of the

investigation and the reasons for detention as spelt out in the report of

the prosecutor justifying such extension. The learned Judge has

therefore grossly erred in holding that the time to complete the

investigation has been extended by the order of the Supreme Court or

that the same was impliedly extended by the predecessor Judge.

29. The ld. APP concedes that the order of the Apex Court in Suo

Moto Application NO.3 of 2020 has no application in the matter of

extension of time to complete the investigation. The learned APP also

concedes that there cannot be implied extension of the time to

complete the investigation. He submits that the matter be remitted to

the Special Court for a proper decision on the report.

30. Undoubtedly, remitting the matter is one of the options available.

However, considering the factual matrix and with a view to obviate

further delay in the matter involving the issue of personal liberty, the

parties were heard on the merits of the report for extension of time,

which reads thus:

"BEFORE THE HON'BLE SPECIAL JUDGE, NDPS, PUNE AT PUNE

Customs C.R.No.14/2019

Inspector of Customs (Prev.) ..Complainant

V/s.

Nayantara Gupta

..Accused.

2. Based on the information received Narcotics Customs

Pune, the complainant most respectfully submits before the

Hon'ble Court as under:

Narcotics Cell Customs Pune, conducted search operation on 12th

November, 2019, at the Clover high land, NIBM Road, (near

Dorabji Stores) Pune.

3. During the search at the Clover high Land NIBM Road

(Near Dorabji Stores, Pune).Accused was selling drugs from

mentioned premises and recovered 54 grams of offwhite coloured

powder purported to be Mephedrone (MD) valued at

Rs,3,24,000/- was seized and 416 numbers of stamp shaped

papers, purported to be "LSD", valued at Rs.20,80,000/- total

valued at Rs.24,04,000/- was seized under panchanama dated

12.11.2019 from the place of selling drugs Clover high land, NIBM

Road, (near Dorabji Stores) Pune.

4. The due date for filing the complaint in the present case is

10.05.2020. HOwever, the investigation in the present case is

incomplete as on today for the reasons as below.

i) Chemical Analysis report of the purported Narcotic

substance seized in the case is awaited fromm CSFL Hyderabad for

the reasons that they are not functioning due to lock down orders

all over the country because of COVID 19 virus.

ii) The interrogation and recording of statement of persons

alleged to have abetted the accused no.2 is still pending as the

persons could not be summoned due to lock down orders all over

the country because of COVID 19 virus.

iii) Obtaining of call detail report and related investigation is

incomplete till date due to lock down orders all over the country

because of COVID 19 virus.

iv) Attention is also invited to an order issued Suo Moto WP

(Civil) No.3 of 2020 by Hon'b;e Supreme Court dt. 23.03.2020

allowing extension to period of limitation in all such matters under

general law of limitation w.e.f. 23.03.2020 till further orders to be

passed by Hon'ble Supreme Court.

5. It is humbly submitted that the last date of filing complaint

is 10.5.2020. In view of the points discussed above and Hon'ble

Supreme Courts order referred to, the provisions of Section 36(4)

of NDPS Act, 1985 are applicable in the present case for extension

for filing the complaint in the present case.

6. It is therefore prayed that

(a) The extension for admissible time period for filing the

complaint may please be granted to the complainant.

(b) Any other just and equitable order may be passed in the

interest of justice.

Sd/-

06.05.2020 Inspector of Customs, Pune.

Sd/-

A.G.Sakpal. SPP.

8.5.2020

31. The Application dated 06.05.2020, purported to be the report