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TMI Blog2011 (3) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is dismissed - Criminal Application (Bail) No. 31 of 2011 - - - Dated:- 17-3-2011 - A.P. Lavande, J. Peter D'Souza, Adv. for the Applicant C.A. Ferriera, Public Prosecutor for the Respondent ORDER 1. Heard Mr. D'Souza, learned Counsel for the applicant and Mr. Ferreira, learned Public Prosecutor for the respondent. 2. This is an application for bail filed by the applicant after his application for bail has been dismissed by the Special Judge, N.D.P.S. Court, Mapusa by order dated 31st December, 2010. 3. On 18th January, 2010, the accused was arrested for alleged possession of 3.88 grams of Cocaine, 0.5 grams of LSD, 16.45 Grams of MDMA. On 16th July, 2010 since the period of 180 days was to expire, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time was under consideration and, therefore, the said order also is illegal and is liable to be set aside. He, therefore, submitted that the detention of the applicant beyond the period of 180 days being in violation of law, the applicant is entitled to be released on bail. Mr. D'Souza further submitted that according to the prosecution itself the contraband seized from the applicant was tested on the spot and as such, there was no question of seeking extension to file chargesheet on the ground that CA report was not received by the prosecution. According to Mr. D'Souza, the impugned order dated 10th November, 2010 discloses total non-application of mind by the Public Prosecutor as well as the learned Special Judge and, therefore, the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render the further detention of the applicant illegal and having regard to the fact that the chargesheet has been already filed, the applicant is not entitled to be released on bail on the ground that he was not heard before passing of the orders dated 16th July, 2010 and 15th September, 2010. According to Mr. Ferreira, right to get bail for not filing chargesheet is not available after the chargesheet has been filed by the prosecution. Mr. Ferreira further submitted that the prosecution has complied with Section 36(A)(4) of The Act. Mr. Ferreira, placed reliance upon the judgment of the Delhi High Court in the case of Narcotics Control Bureau vs. Ashok Mittal and another dated 4 th January, 2011 in Criminal Miscellaneous Application no.43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered, is alone sufficient for the purpose. 53(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 enures 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before this Court, the applicant has not stated that he was not heard on the aspect of the extension of time to file chargesheet. In paragraph nos.2 and 3 of the application, the applicant has stated that the respondent moved an application seeking extension of time to file chargesheet and order was passed by the Special Judge granting extension to complete investigation and file chargesheet against the applicant. Therefore, in my considered view, the order passed by the learned Special Judge is in compliance with Section 36(A)(4) of The Act. I do not find any merit in the submission of Mr. D'Souza that there was non-application of mind either on the part of learned Public Prosecutor while seeking extension of time or on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not advance the case of the applicant. 15. In the case of Bhagaban Pradhan (supra), the Orissa High Court dealing with the scope of Section 116 of Cr.P.C. held that period of six months limitation starts from either when opposite party appears and shows cause or his plea is taken. The said judgment also does not help the applicant. 16. In the case of Rafael Gracia (supra), the learned Single Judge was dealing with controlled substance and not narcotic or psychotropic substances and, therefore, the said judgment also would not advance the case of the applicant. 17. In the case of Uday Mohanlal Acharya (supra), the Apex Curt has held that the accused gets indefeasible right to get bail if the application for bail is filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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