2011 (1) TMI 1142 - HC - Indian Laws

Extension of charge sheet - offence punishable under Section 20(b)(ii)(c), 21(b) and 22(c) of N. D. P. S. Act, 1985 - applicant filed an application for bail before the Special Judge on the ground that no chargesheet was filed till that date and also on the ground that the extension of time was granted on a false representation made by the respondent that the report of analysis of the substance sent to Directorate of Foods and Drugs Administration, Panaji ( DFDA for short) was not received prior to filing of the application seeking extension of time Held that - order granting extension was patently illegal, the learned Special Judge shall pass the order granting bail releasing the applicant on bail on such terms and conditions as he deems fit and proper

Issues Involved:

1. Legality of the extension of time granted to file the chargesheet.
2. Right of the accused to be heard before the extension of time.
3. Validity of the Public Prosecutor's statement regarding the receipt of the DFDA report.
4. Entitlement of the accused to bail due to alleged procedural lapses.

Issue-wise Detailed Analysis:

1. Legality of the extension of time granted to file the chargesheet:

The applicant was arrested on 21st February 2010, and an offence under Section 20(b)(ii)(c), 21(b), and 22(c) of the NDPS Act, 1985 was registered. The initial 180-day period to file the chargesheet was extended by 60 days, expiring on 18th October 2010. On 14th October 2010, the Public Prosecutor sought another 60-day extension, which was granted without hearing the applicant. The applicant contested this extension, arguing it was granted based on a false representation and without proper hearing, thus making it unsustainable in law.

2. Right of the accused to be heard before the extension of time:

The applicant argued that the extension of time was granted without hearing him, which breached Section 36(A)(4) of the Act. The court acknowledged that the applicant was not heard before the extension was granted, which violated his right to be heard. The order extending the time was thus set aside, and the Special Judge was directed to reconsider the application for extension after giving the applicant an opportunity to be heard.

3. Validity of the Public Prosecutor's statement regarding the receipt of the DFDA report:

The applicant contended that the Public Prosecutor made an incorrect statement in the application for extension, claiming the DFDA report on charas was not received, which was false. The court noted that the Special Judge had accepted the prosecution's explanation that the omission was due to oversight. However, the court emphasized the importance of the Public Prosecutor's independent application of mind and not merely acting as a mouthpiece for the investigating officer. The Special Judge was instructed to consider the legal effect of the non-mentioning of the DFDA report in the application for extension.

4. Entitlement of the accused to bail due to alleged procedural lapses:

The applicant sought bail on the grounds that the extension of time was granted illegally and the chargesheet was not filed within the extended period. The court held that the validity of the extension order was crucial in determining the applicant's entitlement to bail. Since the extension order was set aside, the Special Judge was directed to decide the application for extension afresh, considering all contentions and the applicant's right to be heard. If the Special Judge found the extension order to be illegal, the applicant would be granted bail.

Conclusion:

The court set aside the order dated 14th October 2010, granting the extension of time to file the chargesheet, and directed the Special Judge to reconsider the application for extension after hearing the applicant. The Special Judge was instructed to decide the application expeditiously and consider the effect of the false statement regarding the DFDA report. The applicant would remain in detention until the Special Judge passed a new order. If the extension was found to be illegal, the applicant would be granted bail.

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