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TMI Blog2009 (8) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd December, 2007. It appears that as the period of 180 days fixed under Section 36A(4) of the Act read with Section 167(2) of Code of Criminal Procedure, 1973 (hereinafter called the Code) was to expire on 10th August, 2007, Respondent No. 1, the Narcotics Control Bureau, filed an application under Section 36A(4) on 2nd August, 2007 seeking a further period of six months for the completion of the investigation and the filing of the complaint. The Special Judge allowed this application by Order dated 2nd August, 2007. As the extended period would have expired on 2nd February, 2008, the Bureau, moved yet another application under Section 36A(4) of the Act which too was allowed on 30th January 2008 and the time for the completion of the investigation was extended to 13th February 2008, which would have (statedly) brought the total custody to 1 year and 2 days. 2. The appellant moved another application for bail under Section 36A(4) of the Act read with Section 167(2) of the 'Code' on 4th February, 2008 on the plea that the investigation had not been completed within the stipulated period of time fixed by the Special Judge. This application was rejected on 13th February, 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent act of the filing the complaint did take away the right which had accrued to the appellant on 2nd February, 2008 as had been held by this Court in Uday Mohanlal Acharya v. State of Maharashtra 2001 (5) SCC 453. 5. Mr. Bhattacharjee, has, however, supported the judgment of the Special Judge and the High Court by submitting that two applications for extension of time had been made by respondent No. 1 in accordance with the provisions of Section 36A(4) of the Act and that the Special Judge, had, after applying his mind, granted the extensions. He has, further, pointed out that both the Special Judge and the High Court had taken all relevant factors into consideration and keeping in view the larger purpose behind the Act and the great social and legal ramifications, which it raised, required that it should be strictly enforced. 6. He has also pointed out that the submission that the period of 180 days had ended on 2nd February, 2008 was incorrect as the calculations would show that this period was to expire on 8th February, 2008 and the complaint having been filed a day earlier made the ratio of the judgment in Uday Mohan Lal Acharya's case (supra), inapplicable. 7. We have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso authorizes a yet further period of detention which may in total go upto one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are: (1) a report of the public prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused. 10. The question to be noticed at this stage is as to whether the two applications for extension that had been filed by the public prosecutor seeking an extension beyond 180 days met the necessary conditions. We find that the matter need not detain us as it is no longer res integra and is completely covered by the judgment of this Court in Hitendra Vishnu's case (supra). In this case, the Bench was dealing with the proviso inserted as Clause (bb) in Sub-section (4) of Section 20 of TADA, which is pari materia with the proviso to Sub-section (4) of Section 36A of the Act. This Court accepted the argument of the accused that an extension beyond 180 days could be granted but laid a rider that it could be so after certain conditions were satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with this request or application and report., but his report, as envisaged under Clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression 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 as occurring in Clause (bb) in Sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e report of the prosecution kept in the case file submitted herewith showing that the detention of the aforesaid accused is further necessary. In the abovementioned circumstances, it is hereby prayed before your Honour that, A further period of 6 months may kindly be given for the completion of investigation and filing of complaint And the accused person may be remanded in judicial custody for further period. And for this act of kindness, the petitioner as is duty bound shall ever pray. 14. A bare perusal of this application shows that it has been filed by the investigating officer of respondent No. 1 and does not indicate even remotely any application of mind on the part of the public prosecutor. It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days. This application was allowed by the Special Judge on 2nd August, 2007 i.e. on the day on which it was filed which also reveals that no notice had been issued to the accused and he was not even present in Court on that day. 15. The second application dated 30th January, 2008 is even more incomprehensible. We reproduce the same hereinbelow: IN TH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the period of investigation for a further period of six months was presented by the Intelligence Officer of the opposite party No. 1. However, the same was not presented by the learned Public Prosecutor himself but the order passed by the learned Trial Court would show the same was proceeded in the presence of the learned Public Prosecutor. However, Specific reasons and the progress of investigation has been set out in the petition dated, 02/08/2007 wherein it was shown that the offence against the petitioned and his associates are being investigated even in the United States of America and several electronic equipment, which have been seized, were sent to the Central Forensic Science Laboratory for deciphering and the Report is yet to be received. Further time was sought for and the learned Trial Court applied its judicial mind on the basis of a subjective satisfaction quoting the substance of the prayer and allowed the time. As such, other portion of the proviso of Sub-section (4) of Section 36A of the said Act with regard to the progress of investigation and the specific reasons for detention of the petitioner beyond the period of one hundred eighty days, in our humble view, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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