Wednesday, 12 October 2016

Whether prosecution can file application for extension of time to complete investigation before completion of time for investigation?

 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
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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
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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
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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
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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
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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.
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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     @
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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
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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
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(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.
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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:
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“(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.”
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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
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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
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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
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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
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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
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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
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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.   
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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
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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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