investigation was to expire on 6.9.2015 in respect of Bail Application
No.2321 of 2015 and on 7.9.2015 in respect of Criminal Application
No. 1161 of 2015. By application dated 1.9.2015 the learned
Prosecutor had submitted the report for extension of time for the
period of three months. It is true that the said application was filed
prior to expiry of 180 days. It is however, to be noted that the
proviso to subsection 4 of Section 36A of N.D.P.S. Act does not
stipulate that the application has to be filed on the last date of the
expiry of time for investigation. Nor does it preclude the
prosecution from filing the application for extension before the
expiry of 180 days. As held by this Court in Baba @ Kamalakar
Kisan Godke (supra), it is open to the prosecution to take out such
application before the accused exercises his right to avail remedy to
bail on the ground of default. Needless to state that the extenson
under Sec
would operate from the date of expiry of 180 days. Hence, the
argument of the learned counsels for the applicants that the
application for extension was not maintainable being premature is
devoid of any merit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2321 OF 2015
Nazir Ahmad Sange
v/s.
The State of Maharashtra
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : JUNE 13, 2016.
Citation: 2016 CRLJ 3696 Bom
1. The applicants are arrayed as accused in Crime No.2 of 2015
registered at the office of Customs, Narcotic Cell for offences
punishable under Section 21(b), 23(b) r/w. 8(c) of N.D.P.S. Act. The
applicant in Bail Application No.2321 of 2015 was arrested on
9.3.2015 and he was produced before the Special Court, Pune on
10.3.2015, whereas the applicants in Criminal Application No.1161
under Sec
of 2015 were arrested on 10.3.2015 and were produced before the
Special Court, Pune on 11.3.2015. They were remanded in custody
from time to time. The period of 180 days for completion of
investigation in respect of the applicant Nazir in Bail Application
No.2321 of 2015 was to expire on 6.9.2015, whereas the said period
in respect of the applicants in Criminal Application No. 1161 of 2015
was to expire on 7.9.2015.
2. By report dated 1.9.2015 filed under Section 36A (4) of the
N.D.P.S. Act, the Special Public Prosecutor sought extension of three
months for completion of investigation. Upon hearing the prosecutor
and the Advocate for the accused, the learned Special Judge by order
dated 1.9.2015 granted extension for period of four days.
3. The applicant in Bail Application No.2321 of 2015 and the
applicants in Criminal Application No. 1161 of 2015 filed separate
applications for bail dated 15.9.2015 being Application Nos. 3036 of
2015 and 3037 of 2015 under Section 36A(4) of N.D.P.S. Act r/w.
167(2) of Cr.P.C. Both these applications were dismissed by common
under Sec
order dated 13.10.2015. Consequent thereto, the applicant Nazir
Sange has filed Bail Application No. 2321 of 2015, whereas the
applicants in Criminal Application No.1161 of 2015 have challenged
the order of extension dated 1.9.2015 and have further sought
release on bail.
4. Heard learned Sr. Counsel Mr. Mundargi for the applicants in
Application 1161 of 2015 and learned Counsel Mr. Solkar for the
applicant in Bail Application No.2321 of 2015. The learned counsels
for the applicants have submitted that the application for extension
was filed on 1.9.2015 whereas the period of 180 days was to get over
on 6.9.2015. The learned Counsels therefore claim that the
application for extension was premature. The learned Counsels for
the applicants further submitted that the said application for
extension which was filed by the original complainant cannot be
treated as a report of the said Special Public Prosecutor.
5. The learned Counsels for the applicants have further submitted
that the investigation was already completed and that the Special
under Sec
Public Prosecutor had not spelt out the reasons for further extension.
6. The learned counsels for the applicants have further submitted
that the order of extension was passed without issuing notice to the
accused/in the absence of the accused. The learned Counsels for the
applicants have further submitted that Advocate Raju Mate who was
present in the Court on that day had no instructions either to oppose
the application or to argue on behalf of the applicants. The learned
counsels for the applicants therefore claim that mere presence of the
advocate in the court does constitute notice to the applicant accused
and does not meet the requirement of Section 36A(4) of the N.D.P.S.
Act. The learned counsels for the applicants have stated that there
was no progress in the investigation and that the learned Special
Judge has granted extension mechanically, without application of
mind.
7. The learned Counsel for the applicants have relied upon the
decision of the Apex Court in Hitendra Thakur v. State of
under Sec
Maharashtra 1994 (4) SCC 602, Sanjay Dutt v. State 1994 SCC
(Cri.) 1433, Ateef Mulla v. State of Maharashtra (2005) 7 SCC 29.
8. The Learned Addl.PP, Ms. Rebecca Gonsalves submitted that
the period of 180 days for completion of investigation in respect of
the applicant in Bail Application No. 2321 of 2015 was to expire on
6.9.2015, whereas the period in respect of applicants in Criminal
Application No. 1161 of 2015 was to expire on 7.9.2015. She
submitted that since the investigation could not be completed within
180 days, the Special Public Prosecutor had filed the report
indicating the progress of the investigation and also specified the
detail reasons which necessitated further extension beyond the
period of 180 days. She has submitted that Advocate Raju Mate
had filed Vakalatnama on behalf of the applicants and that he was
appearing on behalf of the applicants since the date of their first
production before the Court. She has submitted that Advocate Raju
Mate had represented all the applicants on 1.9.2015. He neither
made any submission, nor opposed the prayer for extension of time.
under Sec
He also did not ask for further time to seek instructions from the
applicants and instead submitted that the court should pass
appropriate order. Learned Counsel Ms. Gonsalves has therefore
submitted that the advocate who was representing the applicants was
present in the court and he was given an opportunity to make
submissions on behalf of the applicants, which meets the
requirements of Section 36A(4) of the Act.
9. Learned Counsel Ms. Rebecca Gonsalves has further submitted
that the applicant in Bail Application No.2321 of 2015 has not
challenged the order of extension dated 1.9.2015 and had filed the
bail application after time for investigation was already extended.
She submits that the said application was therefore not maintainable.
Learned Counsel Ms. Gonsalves has further submitted that the
learned Special Judge had extended the time after perusing the
records and considering the grounds raised by the Special Public
Prosecutor. She has stated that there is no infirmity either in the
order of extension or order of rejection of bail application. She has
relied upon the decision rendered by this Court in Baba @
under Sec
Kamalakar Kisan Bodke & Anr. v. State of Maharashtra (Cri.
Application No.3522 of 2004), as well as the decision of Delhi High
Court in Mohd. Maroof @ Ibrahim & Ors. v. State ( Cri. Misc.
Application No.3644 of 2014).
10. I have perused the records and considered the arguments
advanced by the learned Counsels for the applicants and the learned
Addl.PP. for the respondent no.2.
11. The records reveal that on 8.3.2015 at about 21.45 hours
Deputy Commissioner, Customs (prev.) Pune had received
information that one Ayub Makandar would be taking delivery of 50
kgs of Mephedrone, a psychotropic substance under the N.D.P.S. Act,
1985 from Ravindra Konduskar (applicant in Application No.1161 of
2015) and that thereafter he would be handing over the same to the
applicant Nazir Sange (Applicant in Bail Application No. 2321 of
2015). The information disclosed that the said psychotropic
substance was being transported in white colour Toyoto Etios vehicle
under Sec
bearing No. MH 06 J 9490. Accordingly, on 9.3.2015 the officers
laid a trap. They intercepted the vehicle bearing No. MH 06 J 9490
near Talegaon Tol Plaza in presence of two panchas. Said vehicle
was driven by the applicant Nazir Sange.
12. The case of the prosecution is that two cartons were found in
the dicky of the said vehicle, which were opened in the presence of
panchas. One of the said cartons contained laminated plastic
packets. The substance from the said plastic packet appeared to be
Mephedrone. The contents were emptied in one polythene bag. The
total weight of the said substance was 25 kgs. Two samples of 25
gms each were drawn and sealed. The second carton was also
opened and it contained similar substance, which weighed about 25
kgs. Two samples of 25 gms each were drawn and sealed. The
second carton was also opened and it contained similar substance,
which weighed about 25 kgs. Two samples of the said substance
were drawn from the second carton. The statement of the applicant
Nazir was recorded under Section 67 of the N.D.P.S.Act. He was
placed under arrest and was produced before the Special Judge
under Sec
(N.D.P.S.) Pune, on 10.3.2015, on which date he was remanded to
judicial custody.
13. On the same day the factory premises of M/s. Onkar Industries,
Islampur was searched. The applicantRavindra was present in the
factory and he had stated that the product Benzitrol was
manufactured in the said factory and upon being questioned he
admitted that Mephedrone HCL was also manufactured in the said
factory premises. At the instance of applicant Ravindra 18 bags
weighing 337.865 gms. allegedly containing Mephedrone HCL were
recovered, samples were drawn from the said bag and the said
psychotropic substance was seized. The residence of Ravindra was
also searched and Rs.7,10,000/ were recovered from the bathroom,
which was also seized under the belief that the same were sale
proceeds of Mephedrone psychotropic substance. The statements of
Ravindra and coaccused Ayub were recorded under Section 67 of the
N.D.P.S. Act and they were placed under arrest on 10.3.2015. They
were produced before the Special Judge (N.D.P.S.), Pune on
10.3.2015 and were remanded to judicial custody.
under Sec
14. The records reveal that the said samples were sent to the
Central Forensic Science Laboratory, Ramanthapur, Hyderabad13.
Report dated 12th August, 2015 of CFSL, Ramnathpur confirmed that
samples tested positive of mephedrone.
15. Since the investigation could not be completed within 180 days,
the Special Public Prosecutor filed a report dated 1.9.2015 under
proviso to Section 36A(4) of the N.D.P.S. Act and sought extension of
three months for completion of investigation. By order dated
1.9.2015 the learned Special Judge granted extension of two months
time for completion of the investigation. The applicant in C.C.No.
2321 of 2015 has not challenged the said order, but has merely
challenged the order of rejection of bail. Having failed to assail the
correctness of the order of extension of time, the application for bail
would not be maintainable.
16. Be that as it may, Sub Section (4) of Section 36A of the N.D.P.S.
Act provides that:
under Sec
“(4) In respect of persons accused of an offence punishable
under Section 19 or Section 24 or Section 27A or for
offences involving commercial quantity the references in
subsection (2) of Section 167 of the Code of Criminal
Procedure, 1973 (2 of 1974), thereof to 'ninety days',
where they occur, shall be construed as reference to 'one
hundred and eighty days.'
Provided that, it if is not possible to complete the
investigation within the said period of one hundred and
eighty days, the Special Court may extend the said period
up to one year 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 of one hundred and eighty days.”
17. The Apex Court in Sanjay Kumar Kedia v. Narcotics Control
Bureau (supra) while considering the scope of the proviso to sub
section 4 of Section 36A of N.D.P.S. Act has observed as under :
“12. The maximum period of 90 days fixed under Section
167(2) of the Code has been increased to 180 days for
several categories of offence under the Act but the proviso
authorises a yet further period of detention which may in
total go up to 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.”
under Sec
18. In Hitendra Thakur (supra) the Apex Court while dealing with
the proviso inserted in clause (bb) of sub section 4 of Section 20 of
the TADA Act, which is para materia with the proviso to sub section
(4) of Section 36A of the Act has observed as under :
“21... It is true that neither clause (b) nor clause (bb) of
subsection 20 TADA specifically provide for the issuance of
such a notice but in our opinion the issuance of such a
notice must be read into these provisions both in the
interest of the accused and the prosecution as well as for
doing complete justice between the parties. This is a
requirement for the principles of natural justice and the
issuance of notice to the accused or the Public Prosecutor, as
the case may be, would accord with fair play in action,
which the courts have always encouraged and even insisted
upon. It would also strike a just balance between the
interest of the liberty of an accused on the one hand and
the society at large through the prosecuting agency on the
other hand. There is no prohibition to issuance of such a
notice to the accused or the public prosecutor in the scheme
of the Act and no prejudice whatsoever can be caused by
issuance of such a notice to any party.”
19. It is thus evident that in terms of proviso to sub section 4 of
Section 36A the Special Court is authorised to extend the period for
completion of investigation upto one year subject to filing of the
report of the public prosecutor indicating the progress of the
under Sec
investigation and specifying the specific reasons for seeking further
extension beyond the period of 180 days. Though the Section does
not provide for issuance of notice to the accused, in terms of the
observation of the Apex Court in Hitendra Thakur (supra), it is
necessary to issue a notice to the accused before extending the term
for completing the investigation. The Apex Court in Sanjay Dutt
(supra) has further clarified that notice referred in the case of
Hitendra Thakur does not contemplate a written notice to the
accused but production of the accused in the court and informing
him that the question of extension of the period for completing the
investigation is being considered, is alone sufficient for the purpose.
20. The question which therefore falls for our consideration is
whether the application for extension filed by the Public Prosecutor
meets the necessary conditions stipulated in proviso to subsection 4
of Section 36A of the N.D.P.S.Act. It is not in dispute that the
applicant in Bail Application No.2321 of 2015 was arrested on
9.3.2015 and was produced before the court on 10.3.2015, whereas
the applicants in Criminal Application No. 1161 of 2015 were
under Sec
arrested on 10.3.2015 and were produced before the court on
11.3.2015. In the course of the investigation they were produced
before the court and remanded from time to time.
21. In the instant case, the period of 180 days for completion of
investigation was to expire on 6.9.2015 in respect of Bail Application
No.2321 of 2015 and on 7.9.2015 in respect of Criminal Application
No. 1161 of 2015. By application dated 1.9.2015 the learned
Prosecutor had submitted the report for extension of time for the
period of three months. It is true that the said application was filed
prior to expiry of 180 days. It is however, to be noted that the
proviso to subsection 4 of Section 36A of N.D.P.S. Act does not
stipulate that the application has to be filed on the last date of the
expiry of time for investigation. Nor does it preclude the
prosecution from filing the application for extension before the
expiry of 180 days. As held by this Court in Baba @ Kamalakar
Kisan Godke (supra), it is open to the prosecution to take out such
application before the accused exercises his right to avail remedy to
bail on the ground of default. Needless to state that the extenson
under Sec
would operate from the date of expiry of 180 days. Hence, the
argument of the learned counsels for the applicants that the
application for extension was not maintainable being premature is
devoid of any merit.
22. It is to be noted that the prosecution has sought extension of
time beyond 180 days. In the case of Hitendra Thakur the Apex
Court has held that the public prosecutor is not just a post office or a
forwarding agency, but he is required to apply his mind to the
request of the investigating agency before submitting the report to
the court for extension of time. The Apex Court has further held
that:
“23..... for seeking extension of time under clause (bb), the
Public Prosecutor after an independent application of his
mind to the request of the investigating agency is required to
make a report to the Designated Court 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 his 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
under Sec
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 subsection (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 in clause (bb).
The request of an investigating officer for extension of time
is no substitute for the report of the Public Prosecutor.”
23. In the instant case, a bare perusal of the application dated
1.9.2015 shows that it was a “ report of the Special Public Prosecutor
with prayer for extension for filing the complaint.” The said report
was signed by the Public Prosecutor and it does not cease to be a
report merely because it is also signed by the Inspector of Customs,
(Narcotic Cell), Pune. The report gives details of the progress of the
investigation conducted so far. The report submitted by the
prosecutor reveals that the CSFL report along with reminent samples
were received from CSFL, Hyderabad on 21.8.2015. The said report
reveals that the substance tested positive for mephedrone. The
under Sec
prosecutor had further stated that, in the meantime a FAX letter
dated 3.8.2015 was received from Inspector, ATS, Charkop Unit,
Mumbai, stating that five persons had been arrested under Section
8(c), 22 and 29 of N.D.P.S. Act and 26.500 kg of processed
mehpedrone and 100 litres of raw mephedrone of liquid and solid
form were seized. Two of these persons were found involved in the
present case. Hence application was filed before the Special N.D.P.S.
Court, Mumbai to hand over the custody of the said two persons.
The said application was rejected on 26.8.2015, since the
Investigating Officer had not placed on record the requisition of the
concerned court before whom the Crime No. 2 of 2015 was pending.
The prosecutor had therefore sought further extension of time to
draw statements of chemists and packing staff of M/s. Onkar
Industries, statement of Rajkumar Konduskar, Shankar Konduskar,
Prakash Shinde to explain the cash transaction as well as record the
statement of supplier of raw material to manufacture mephedrone.
The prosecutor had further stated that an application was also
moved before the Superintendent of Arthur Road Prison, to hand
over the custody of Sachin Bagul and Ayub Tasir Khan, arrested by
under Sec
ATS, Charkop Unit, and who was wanted in the present crime, who
used to take delivery from Nazir Sange, the applicant in Bail
Application No.2321 of 2015 and dispose of mephedrone in the
market and collect the sale proceeds in cash. The prosecutor had
stated that the further investigation was necessary to ascertain the
role of Ayub Khan and Sachin Bagul in the conspiracy to process,
transport and sell mephedrone. A perusal of the application/report
clearly indicates that the prosecutor has not only given the detail
progress of the investigation but has also spelt out the compelling
reasons for seeking detention beyond the period of 180 days. The
report submitted by the prosecutor shows application of mind and
meets the requirements specified in the proviso to sub section 4 of
Section 36A of the Act.
24. As regards notice to the applicant /accused it is not in dispute
that the applicantaccused were not produced before the court on
1.9.2015. It is also not in dispute that Advocate Mate had filed his
vakalatnama on behalf of the accused and that he was representing
the applicants from the first day they were produced before the
under Sec
court. He was present before the court on the day the prosecutor
had filed the report for extension of time and he was informed about
the report filed by the prosecutor. The records also reveal that after
the court had granted extension, learned Advocate Mate had filed an
application for bail and one of the grounds raised in the said
application was that the applicants were not given the notice of the
application for extension. While dismissing the said application, by
order dated 13.10.2015 the learned Judge has observed that the
learned Counsel Shri Mate who has been representing the applicants
since the beginning was present in the court on 1.9.2015. The
learned Judge has recorded that learned Counsel Shri Mate has
admitted that before passing any order on the said application for
extension, he was asked as to whether he wanted to make any
submission on behalf of the applicant/accused and that he had
declined to make any submissions. The learned Judge has further
recorded that before passing the said order of extension, the
attention of learned Advocate Shri Mate was invited towards the
contents of the application and despite which he had chosen not to
make any submissions.
under Sec
25. The applicants have not controverted the said statements
recorded by the learned Special Judge in order dated 13.10.2015. It
is thus evident that the Counsel representing the applicant was
present before the court when the application for extension was
filed. The contents of the application were brought to his notice and
he was given a fair opportunity to give his say in the matter. The
learned advocate for the applicants did not raise any objection for
extension of time nor did he insist on production of the accused for
the purpose of extension. Thus, there was total compliance of the
principles of natural justice. It is pertinent to note that the object of
notice/ production of the accused before the court is mainly to
appraise the accused of request for extension of time. In the instant
case though the accused were not produced before the court, the
contents of the report was brought to the notice of the advocate
representing the accused and he was given sufficient opportunity to
give his say on the question of extension. The order of extension is
therefore in total conformity with the requirements of the proviso to
sub section (4) of Section 36A of the N.D.P.S.Act. There is no
under Sec
infirmity in the impugned order of extension. Consequently, the
applicants are not entitled for bail under Section 167 (2) of Cr.P.C.
26. Under the circumstances and in view of the discussion supra the
applications have no merits and are hereby dismissed.
(ANUJA PRABHUDESSAI, J.)
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