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2019 (4) TMI 461 - HC - Indian LawsSmuggling - Methamphetamine/Pseudo Ephedrine - NDPS Act - extension of period of remand of the case - Section 36-A(4) of the NDPS Act - Held that - It is beyond cavil that the 180th day fell on 13.12.2017, because, the first remand was on 16.06.2017. It is true that the DRI had not completed the investigation as on 13.12.2017. However, the Investigating Officer had filed an application for extension of time on 06.12.2017, in which, the Special Public Prosecutor has also signed. Perhaps, realising the mistake that the petition should not have been filed by the Investigating Officer, the Special Public Prosecutor himself filed a report on 11.12.2017. In this case, the remand extension of the petitioners/accused was made on 05.12.2017 and it was extended for a further period of 15 days upto 18.12.2017. The 180th day was to expire at 12.00 midnight of 13.12.2017. Had the Special Public Prosecutor not filed the extension Report or the complaint, the accused would have been entitled to be released on default bail only on 14.12.2017 on their coming forward to furnish bail, even though they may be physically absent before the Court. It be open to the Special Public Prosecutor to reveal the contents of the case diary or the case file in his Report under Section 36-A(4) of the NDPS Act? If he does that, will it not alert the suspects, over whom, surveillance would have been mounted by the Investigating Agency? In this case, samples which were drawn were sent by the Special Court to the Customs Laboratory, Chennai and the report dated 26.07.2007 received from said laboratory showed that the samples answered positive for Ketamine Hydrochloride, which substance also falls within the ambit of the NDPS Act - it cannot be stated that the Report of the Special Public Prosecutor under Section 36-A(4) of the NDPS Act is perfunctory or it does not satisfy the requirements of law. The orders passed by the Special Court, assailing the correctness of which, these two petitions are filed, are upheld - the criminal revision and the criminal original petition stand dismissed.
Issues Involved:
1. Validity of the Special Judge acting on the Investigating Officer's petition for extension of time. 2. Sequence of hearing the default bail application and the extension of time report. 3. Adequacy of the information provided in the Special Public Prosecutor's report. 4. Legal precedents and their applicability to the case. Detailed Analysis: 1. Validity of the Special Judge acting on the Investigating Officer's petition for extension of time: The petitioners contended that the Special Judge should not have acted upon the petition dated 06.12.2017 filed by the Investigating Officer because the proviso to Section 36-A(4) of the NDPS Act contemplates only the report of the Public Prosecutor and not the request of the Investigating Officer. The court acknowledged that the Investigating Officer had filed an application for extension of time on 06.12.2017, which was signed by the Special Public Prosecutor. Realizing the mistake, the Special Public Prosecutor filed a separate report on 11.12.2017. The court held that the form should not extinguish the substance, and what matters is whether there was substance in the report of the Special Public Prosecutor for seeking an extension of time. 2. Sequence of hearing the default bail application and the extension of time report: The petitioners argued that the Special Judge should have first heard the default bail application since the complaint was not filed by 13.12.2017. The court noted that the Special Judge insisted on hearing the application filed by the prosecution first. The Special Judge was justified in this approach because if the default bail application was heard first and bail was granted, the time extension report would become moot. The court cited the Supreme Court's decision in Rambeer Shokeen, which supports the view that the application for statutory bail should be considered only if the prayer for extension of the period for filing the charge-sheet is formally and expressly rejected. 3. Adequacy of the information provided in the Special Public Prosecutor's report: The petitioners contended that neither the request petition filed by the Investigating Officer nor the report of the Special Public Prosecutor detailed the progress of the investigation and the reasons for the detention of the petitioners. The court reviewed the report and found that it contained a summary of the investigation and the reasons for requiring more time, such as examining witnesses, conducting searches, and obtaining test reports from forensic laboratories. The court concluded that the report was not perfunctory and satisfied the requirements of law. 4. Legal precedents and their applicability to the case: The petitioners cited several judgments to support their contentions. The court analyzed these precedents in detail: - Hitendra Vishnu Thakur vs. State of Maharashtra: The Supreme Court held that issuance of notice to the accused must be read into the provisions. However, the Constitution Bench in Sanjay Dutt vs. State through the CBI, Bombay clarified that production of the accused in court is sufficient notice. - Sanjay Kumar Kedia vs. Intelligence Officer, Narcotic Control Bureau: The Supreme Court found that the petition filed by the Investigating Officer did not indicate any application of mind by the Public Prosecutor. In this case, a separate report was filed by the Special Public Prosecutor. - Uday Mohanlal Acharya vs. State of Maharashtra: The issue was whether the default bail application can be kept in abeyance to allow the Investigating Agency to file the charge sheet. Here, the Special Public Prosecutor filed the report ahead of the 180th day. - Sayed Mohd. Ahmed Kazmi vs. State (Government of NCT of Delhi): The Supreme Court held that the accused is entitled to default bail if the prosecution does not file an extension application before the statutory period lapses. In this case, the report was filed on 11.12.2017. - Achpal vs. State of Rajasthan: The Supreme Court granted default bail where the final report was filed by a non-gazetted officer in violation of court directions. Here, the Special Public Prosecutor's report was filed timely. - T.A. Mohammed vs. State of Kerala: The Kerala High Court released the petitioner on bail where the Trial Court ignored the Supreme Court's ruling. This case was not analogous to the present case. Conclusion: The court upheld the orders passed by the Special Court, dismissing the criminal revision and the criminal original petition as being bereft of merits. The court found that the actions of the Special Judge and the contents of the Special Public Prosecutor's report were in accordance with the law and relevant legal precedents.
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