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TMI Blog2019 (4) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Crl.R.C.No. 660 of 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 36-A(4) of the NDPS Act for extending the period of investigation. The Special Court directed service of notice on the petitioners/accused. 2.4 Here, there appears to be some differences in the assertion of the defence counsel and the Special Public Prosecutor, inasmuch as, it is the case of the defence counsel that the DRI attempted to serve notice on the accused in the prison in the petition filed by the Investigating Officer and not the report filed by the Special Public Prosecutor for the DRI, which is refuted by the Special Public Prosecutor. 2.5 Be that as it may, the fact remains that the petitioners/accused who were in prison, refused to receive any paper from the DRI. Ergo, the prosecution prayed to the Special Court for production of the petitioners/accused physically before the Court. 2.6 On the orders of the Special Court, presumably under Section 267 Cr.P.C., the petitioners/accused were produced physically before the Special Court on 13.12.2017, on which date, the petitioners/accused filed an application under Section 167(2) Cr.P.C. read with Section 36-A(4) of the NDPS Act, seeking default bail, which was numbered as Crl.M.P.No.3271 of 2017. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulated the following submissions: 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 report of the Public Prosecutor and not the request of the Investigating Officer. The Special Judge ought not to have insisted upon hearing the default bail application along with the report of the Special Public Prosecutor for extension of time and should have first heard the default bail application and should have granted bail, since the complaint was not filed on 13.12.2017. Even in the worst scenario, the Special Court should have completed the entire process of hearing the petitioners/accused and passing final orders on the report of the Special Public Prosecutor ahead of the expiry of the 180th day and the Special Court cannot take up the hearing beyond the 180th day. Neither in the request petition filed by the Investigating Officer nor in the report of the Special Public Prosecutor, the progress of the investigation and the reasons for the detention of the petitioners/accused have been spelt out and hence, the orders passed by the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for extension of time; the 180th day was 13.12.2017; therefore, the Special Public Prosecutor has filed his report ahead of 13.12.2017, i.e. on 11.12.2017. the investigation was completed and the complaint was filed on 27.03.2018. Even after the complaint was filed, the DRI have arrested two persons and have arraigned them as co-accused in this case. 8 In support of his contentions, Mr. N.P. Kumar placed reliance on the following judgments: Sanjay Dutt vs. State through the CBI, Bombay Constitution Bench judgment [1994 3 Crimes (SC) 344] Rambeer Shokeen vs. State of NCT of Delhi [(2018) 4 SCC 405] and judgment of this Court in Thiruselvem and others vs. State represented by the Deputy Superintendent of Police, N.I.A., Hyderabad, Camp at Puducherry [2018-2- LW (Crl.) 79] 9 This Court gave its anxious thought to the rival submissions. 10 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p for hearing and bail granted on the ground that the prosecution have failed to complete the investigation and file the final report/complaint, then, the time extension report of the Special Public Prosecutor would be rendered otiose. 12 Mr. Venkatesh s contention that the entire exercise of granting or refusing to grant extension of time should have been completed by the Special Judge before the expiry of 180th day, does not cut much ice with this Court. Supposing, in a given case, the Investigating Agency completes the investigation to the best of their endeavour and when they are about to file the final report/complaint on the 179th day and on that day, they incidentally stumble upon evidence, either implicating the accused who are already on remand or showing the involvement of their handlers and masterminds elsewhere, would it be possible for the Special Judge to complete the entire exercise within 180 days? The answer to this question is an emphatic No . 13 Even 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory bail be taken forward. In no case, the hearing on statutory bail application precede the consideration of prayer for extension of the period for filing of the charge-sheet made by the Additional Public Prosecutor. (emphasis supplied) 34. In the present case, however, the prayer for extension of period for filing charge-sheet was moved by the Additional Public Prosecutor before the statutory period had lapsed, but the same remained pending until 8-3-2017, when charge-sheet was filed in court. Until the said request was formally and expressly rejected by the competent court, in view of the exposition in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] , the court concerned could not have assumed jurisdiction to consider the prayer for grant of statutory bail of the appellant. The request made by the Additional Public Prosecutor was formally disposed of as infructuous on 8-3-2017, after filing of the charge-sheet against the appellant. That was not an order of rejection of the request of the Additional Public Prosecutor as such. The High Court has examined this aspect and, in our opinion, rightly answered the issue against the appellant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int and the accused persons may be remanded in judicial custody for further period and thus render justice. 16 In this background, would 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 should be borne in mind that the DRI officials have cracked down a manufacturing unit where production of a psychotropic substance has been going on clandestinely. They have arrested ten persons and were on the look out for others. The department had made a request to the Special Judge for sending the samples to the Central Forensic Science Laboratory, Hyderabad and Tamil Nadu State Forensic Science Department, Chennai and accordingly, the Special Court had sent the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult bail. In those circumstances, the Supreme Court held that the accused would be entitled to be released on default bail. In the instant case, the application for extension of time was filed by the Special Public Prosecutor on 11.12.2017 well ahead of 14.12.2017. 21 In Achpal (supra), final report was filed by a non gazetted officer on 05.07.2018 in violation of the specific directions of the High Court that the investigation should be completed by a superior gazetted officer. Therefore, the Magistrate returned the papers to the Investigating Officer. The statutory period expired on 03.07.2018 itself. In those circumstances, the Supreme Court granted default bail to the accused therein. In the case at hand, the Special Public Prosecutor filed his Report on 11.12.2017 well ahead of 14.12.2017. 22 In T.A. Mohammed (supra), the Trial Court had ignored the ruling of the Supreme Court and had refused to grant statutory bail to the accused therein and in those circumstances, the Kerala High Court frowned upon the act of the Trial Court and released the petitioner therein on bail. In the ultimate analysis, the orders passed by the Special Court, assailing the correctnes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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