Section 36A which is in pari-materia to various
Sections in the special statutes like Section 21(2)(b) of MCOC
Act and Section 20(4)((b)(d) of the (The) Terrorist and
Distuptive Activities (Prevention) ACT, 1987 and Section 49(2)
(b) of the The Prevention of Terrorism Act, 2002 (POTA).
On reading of the said proviso appended to sub-section 4 of
Section 36A of NDPS Act, it can be clearly discerned that the
Special Court may extend the period of 180 days upto one year,
on the report of the Public Prosecutor, informing the Court about the progress of the investigation and the specific reason for
detention of the accused beyond the period of 180 days. {Para 11}
12 In the present case, as it can be seen that the Public
Prosecutor never submitted the report, but the Investigating
Officer directly preferred an application before the Court and
though the Public Prosecutor was present on the date of hearing
when the case was taken on Board, the application before the
Court was the one filed by the Investigating Officer.
It is settled position of law that when law requires a
particular thing to be done in a particular manner, then it shall be done only in that manner and in no other way.
13 The legislature intentionally contemplated submission
of the report by the Public Prosecutor and it also indicated what it should comprise of. The legislature did not purposely leave it to an Investigating Officer to make the application for seeking
extension of time. The legislature expect the investigation to be
completed with utmost promptitude but where it becomes
necessary to extend the period for completion of investigation,
the Investigating Agency, after inviting the attention of the Public Prosecutor to the said reasons, shall put up a report before the Court, apprising it about the progress of investigation and by furnishing reasons for further custody.
In case of Rajnikant Jivanlal & Ors.Vs. Intelligence
Officer, NCB, 1989 (3) SCC 532, the duty cast on the Public
Prosecutor was specifically highlighted in the background of the
power conferred on him, to submit the report before the
concerned Court when extension of custody is sought for.
14 The intention of the legislature, clearly surfacing
through the provision, to the effect that the report shall be
submitted by the Public Prosecutor before the Court, after proper application of mind. It is the provision designed to assist the designated Court to independently decide whether or not the
extension shall be granted. It is a serious business, as the further
incarceration of the accused in custody would be dependent upon
the Court being satisfied for the justification offered by the public Prosecutor who seek extension of the custody since the
investigation is not completed by the Investigating Officer within
the stipulated period.
15 It has been time and again reiterated that the Public
Prosecutor is neither the Post office of the Investigating Agency
nor he is forwarding agency, but he is charged with a statutory
duty and he must apply his mind to the facts and circumstances of the Court and his report must disclose on the face of it, that he
had applied his mind to the twin conditions i.e. there is progress in investigation and there are reasons for detaining the accused
beyond the period prescribed.
An important duty is cast on the Public Prosecutor to
prepare his own independent report to assist the Special Court to
decide whether the time period of custody of the
applicant/accused needs to be extended beyond 90 days or 180
days. The public prosecutor shall be convinced on the
submission of the Investigating Agency that there is a progress in
the investigation and for the reasons offered in the report, it could not be completed.
Here, in contrast, it can be seen that in the present
case, the report placed before the learned Magistrate is by the
Investigating Officer himself, which is in clear breach of the
mandate of law envisaged in the proviso appended to sub-section
(4) of Section 36A.
16 The applicant preferred an application for being
released on bail when the charge-sheet was not filed in 180 days
and on the defective application which could not have been
entertained. The Special Judge kept it pending though an
indefeasible right had accrued to the applicant on failure to file
the charge-sheet within 180 days. He availed of this right by
preferring an application, but the learned Court rejected it on a
flimsy ground.
17 Very recently, the Hon’ble Apex Court in case of M.
Ravindran vs. Intelligence Officer, Directorate of Revenue
Intelligence, 2021 (2) SCC 485, has once again reiterated the
concept of default bail which has been recognized as an integral
part of the right of the person to personal liberty under Article 21
of the Constitution of India. It has been held that once the
accused files an application for bail under the proviso to Section
167(2) of Cr.P.C, 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.
In the Law Report, Their Lordships of the Apex
Court has crystallized the position on the following words :
“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), CrPC 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.
18.2 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application; or
subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or
filing of the chargesheet during the interregnum when
challenge to the rejection of the bail application is pending
before a higher Court.
18 In the wake of the aforesaid position of law, clearly
emnating from the authoritative pronouncement of the Hon’ble
Apex court, the applicant deserve his release on bail under
Section 167(2) read with Section 36A of the Narcotic Drugs &
Psychotropic Substances Act, 1985.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 4215 of 2021
Shlok Rakesh Todankar Vs The State of Maharashtra
CORAM: BHARATI DANGRE, J.
DATED : 6th SEPTEMBER, 2022
1 By the present application, the applicant seek his
release on bail u/s.167(2) of Cr.P.C read with Section 36A of the
Narcotic Drugs & Psychotropic Substances Act. His application
seeking default bail came to be rejected by the Special Judge,
NDPS, City Civil and Sessions Court, Gr.Mumbai on 17/4/2021.
2 Heard the learned counsel for the applicant Mr.Gopal
Satam and Mrs.Rutuja Ambekar, the learned APP for the State.
3 In order to appreciate the legality and correctness of
the order passed by the Sessions Judge, it would be necessary to
briefly refer to the important and relevant dates and events,
preceding the rejection.
ANC Bandra Unit, while on patrolling duty on S.V.
Road, Khar (West), Mumbai, found an individual with suspicious
behaviour and when intercepted, he was found carrying a black
colour sack on his shoulder, and the search, led to possession of 17
LCD papers and 1 Kg.100 gms of ganja. He was apprehended
and arraigned as accused in C.R.No.27/2021 registered with
ANC Bandra Unit for the offence punishable u/s.8(c) r/w Section
20(b), 22(c) of the Narcotics Drugs and Psychotropic Substances
Act, 1985.
4 On his arrest from 3/4/2021, it was imperative for the
NCB to follow the procedure prescribed u/s.36A of the NDPS
Act. Sub-section (4) of Section 36A reads thus :-
“(4) In respect of persons accused of an offence
punishable under section 19 or section 24 or section
27A 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 the 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 As per the said provision, stipulated period of
limitation of filing the charge-sheet by the prosecution was, on or
before 1/10/2021 i.e. on completion of 180 days from the date of
the first remand. On 23/9/2021, the Assistant Police Inspector,
ANC, Bandra Unit forwarded an application to the Special Court,
seeking extension of 60 days, for filing of charge-sheet as the
investigation was not complete, and the necessary details of the
completed investigation and the unfinished investigation, was
contained in the said application.
The Investigating Officer himself preferred an
application before the learned Judge on 23/9/2021 for taking the
case on Board, in the wake of the application being filed, seeking
extension of time to complete the investigation. The verification
on the said application was also made by the API himself.
6 On the very same day, the Special Court passed the
following order :-
“SPP Ms.Geeta Nayyar for State present.
API Karkar attached to ANC Bandra Unit present.
Exh.9 – Application for taking the matter on today’s
board.
O – Allowed.
Application for extension of time of 60 days to file
charge-sheet.
O – Otherside to say.
Accused is at present lodged at Arthur Road Jail. It
is directed to the Jail Superintendent to serve the
copy of Misc. Application to accused.
Registrar Sessions, to register the NDPS Misc.
Application for statistical purpose.
The case is adjourned for reply to 28/09/2021.”
Application was attempted to be served on the
applicant through the Jail Superintendent, who made the
following endorsement.:-
“Shlok Todankar cannot sign this paper without talking
with my Advocate.
Shlok Todankar”
7 Application for extension was filed on 23/9/2021,
but it was kept pending, as it was neither refused nor granted.
On 28/10/2021, the learned Judge recorded as under :-
“Received new charg-sheet from Department.
SPP Ms.Geeta Nayyar for ANC present.
The perusal of case papers prima faice disclose that the accused
have committed an offence under Section 8(c) punishable
under Section r/w 22(c) of NDPS Act, 1985. There is
sufficient ground to proceed against the accused under these
sections.
Hence, issue process against the accused.
C.A. Report filed.
Issue production warrant against accused.
The case is adjourned for appearance to 18.11.2021”.
8 On 25/10/2021, the applicant responded to the
application for extension by filing a response and the application
was opposed specifically, contesting the grounds on which the
extension was sought. The reply to the application raised the
following objections :-
“(a) The said application was mainly sought on the
ground of non receiving of C.A. report. The said
ground is not tenable as charge-sheet can be filed
without C.A. report as it would not amount to
incomplete charge-sheet as held by the Hon’ble
Bombay High Court in Manas Krishna T.K vs. State
in CRMAB/88/2021.
(b) It is further contended in the application that
statement of 2 persons is required to be recorded
and one report from Bitcoin data protection officer
is awaited. The grounds are also not tenable as six
month time was sufficient to do that.
(c) That the case against accused is of possession of
contraband where panchnama and statement of
witnesses in raiding team have recorded and not of
circumstantial evidence. Hence, the prosecution has
recorded and not of circumstantial evidence. Hence,
the prosecution has sufficient evidence to submit
charge-sheet.
(d) The prosecution can submit other documents
on record at later stage also and they can continue
further investigation u/s.173(8) Cr.P.C.
(e) The said application does not fulfil the
requirement of section 36A NDPS Act.
Hence, it is humbly prayed that the
application for extension of time to submit chargesheet
may be rejected.
9 The applicant moved an application on 1/10/2021
seeking his release on default bail and the applicant sought to
derive benefit of Section 167(2) of Cr.PC r/w Section 36-A of
NDPS Act and claim that 181 days have passed since the date of
his production before the Magistrate and the respondents have
failed to file the charge-sheet within a period of 180 days.
This application came to be rejected by the Special Judge
on 17/11/2021 by recording as under :-
“It evinces to me that, the prosecution vide Exh.10 in
R.A.No. 421/2021 has filed an application for further
extension of time upto the quantum of 60 days for
filing the charge-sheet pertaining to NDPS R.A.No.
434/2021 dated 23.09.2021. The said application is
pending for hearing. The roznama dated
23/09/2021 categorically enumerates for the reply to
be filed by the other side and also the Jail
Superintendent was directed to serve the copy of M.A
to the accused and thereafter, the Registrar Sessions
was directed to register the NDPS Misc. Application
for statistical purpose. In view of the same, it is
evident that prior to expiry of the stipulated
limitation of 180 days, the prosecution had moved
such application and thereafter, on expiry of such
limitation the present Bail Application is filed on
behalf of applicant/accused. Thus, in view of the
same it cannot be said that, the applicant herein is
entitled for such relief of enlargement on bail on
account of an indefeasible right being generated in
this favour. Moreover, rules of procedure are
handmades of justice, therefore, mere non registration
of application for statistical purpose cannot be held to
benefit of the accused in this regard. Thus, in view of
the same, I hold that the application deserves no
consideration”.
10 From the sequence of events narrated above, certain
facts are not in dispute. The first fact being the period of 180
days, as prescribed u/s.36A of the NDPS Act, expired on
1/10/2021. It is not in dispute that on the very same day, the
applicant filed an application for default bail. It is also not in
dispute that prior to the said date, the Investigating Officer filed
an application for extension on 23/9/2021. It is also not in
dispute that the application was kept pending, as it was neither
allowed nor rejected, meaning thereby that the extension was not
granted. Another undisputed fact is about the charge-sheet,
being filed on 27/10/2021, which is beyond the period of 180
days.
In the backdrop of the undisputed facts, the question
that arises for determination is whether the applicant is entitled
for being released on default bail.
11 Section 36A which is in pari-materia to various
Sections in the special statutes like Section 21(2)(b) of MCOC
Act and Section 20(4)((b)(d) of the (The) Terrorist and
Distuptive Activities (Prevention) ACT, 1987 and Section 49(2)
(b) of the The Prevention of Terrorism Act, 2002 (POTA).
On reading of the said proviso appended to sub-section 4 of
Section 36A of NDPS Act, it can be clearly discerned that the
Special Court may extend the period of 180 days upto one year,
on the report of the Public Prosecutor, informing the Court about
the progress of the investigation and the specific reason for
detention of the accused beyond the period of 180 days.
12 In the present case, as it can be seen that the Public
Prosecutor never submitted the report, but the Investigating
Officer directly preferred an application before the Court and
though the Public Prosecutor was present on the date of hearing
when the case was taken on Board, the application before the
Court was the one filed by the Investigating Officer.
It is settled position of law that when law requires a
particular thing to be done in a particular manner, then it shall be
done only in that manner and in no other way.
13 The legislature intentionally contemplated submission
of the report by the Public Prosecutor and it also indicated what it
should comprise of. The legislature did not purposely leave it to
an Investigating Officer to make the application for seeking
extension of time. The legislature expect the investigation to be
completed with utmost promptitude but where it becomes
necessary to extend the period for completion of investigation,
the Investigating Agency, after inviting the attention of the Public
Prosecutor to the said reasons, shall put up a report before the
Court, apprising it about the progress of investigation and by
furnishing reasons for further custody.
In case of Rajnikant Jivanlal & Ors.Vs. Intelligence
Officer, NCB, 1989 (3) SCC 532, the duty cast on the Public
Prosecutor was specifically highlighted in the background of the
power conferred on him, to submit the report before the
concerned Court when extension of custody is sought for.
14 The intention of the legislature, clearly surfacing
through the provision, to the effect that the report shall be
submitted by the Public Prosecutor before the Court, after proper
application of mind. It is the provision designed to assist the
designated Court to independently decide whether or not the
extension shall be granted. It is a serious business, as the further
incarceration of the accused in custody would be dependent upon
the Court being satisfied for the justification offered by the public Prosecutor who seek extension of the custody since the
investigation is not completed by the Investigating Officer within
the stipulated period.
15 It has been time and again reiterated that the Public
Prosecutor is neither the Post office of the Investigating Agency
nor he is forwarding agency, but he is charged with a statutory
duty and he must apply his mind to the facts and circumstances of
the Court and his report must disclose on the face of it, that he
had applied his mind to the twin conditions i.e. there is progress in
investigation and there are reasons for detaining the accused
beyond the period prescribed.
An important duty is cast on the Public Prosecutor to
prepare his own independent report to assist the Special Court to
decide whether the time period of custody of the
applicant/accused needs to be extended beyond 90 days or 180
days. The public prosecutor shall be convinced on the
submission of the Investigating Agency that there is a progress in
the investigation and for the reasons offered in the report, it could
not be completed.
Here, in contrast, it can be seen that in the present
case, the report placed before the learned Magistrate is by the
Investigating Officer himself, which is in clear breach of the
mandate of law envisaged in the proviso appended to sub-section
(4) of Section 36A.
16 The applicant preferred an application for being
released on bail when the charge-sheet was not filed in 180 days
and on the defective application which could not have been
entertained. The Special Judge kept it pending though an
indefeasible right had accrued to the applicant on failure to file
the charge-sheet within 180 days. He availed of this right by
preferring an application, but the learned Court rejected it on a
flimsy ground.
17 Very recently, the Hon’ble Apex Court in case of M.
Ravindran vs. Intelligence Officer, Directorate of Revenue
Intelligence, 2021 (2) SCC 485, has once again reiterated the
concept of default bail which has been recognized as an integral
part of the right of the person to personal liberty under Article 21
of the Constitution of India. It has been held that once the
accused files an application for bail under the proviso to Section
167(2) of Cr.P.C, 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.
In the Law Report, Their Lordships of the Apex
Court has crystallized the position on the following words :
“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), CrPC 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.
18.2 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application; or
subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or
filing of the chargesheet during the interregnum when
challenge to the rejection of the bail application is pending
before a higher Court.
18 In the wake of the aforesaid position of law, clearly
emnating from the authoritative pronouncement of the Hon’ble
Apex court, the applicant deserve his release on bail under
Section 167(2) read with Section 36A of the Narcotic Drugs &
Psychotropic Substances Act, 1985.
The impugned order for the aforesaid reason cannot be
sustained and it is quashed and set aside. The applicant deserves
his release on bail, by the following order :-
O R D E R
(a) The Applicant – Shlok Rakesh Todankar in
connection with C.R.No.27/2021 registered with
ANC Bandra Unit, Mumbai shall be released on
bail in view of Section 167(2) of Cr.P.C. and
Section 36A of the NDPS Act on furnishing P.R.
bond to the extent of Rs.25,000/- with one or two
sureties of the like amount.
(b) The applicant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with facts of case so as to dissuade him
from disclosing the facts to Court or any Police
Officer. The Applicant should not tamper with
evidence.
(c) The Applicant shall make himself available as and
when required by the Investigating Officer.
The Application is allowed in the aforestated terms.
( SMT. BHARATI DANGRE, J.)
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