Saturday, 22 August 2020

Bombay HC: Court should not grant an extension of time for investigation in NDPS Case if police fail to disclose the progress of the probe

The Application dated 06.05.2020, purported to be the report
under the proviso to sub-section (4) of Section 36 A is signed by the
complainant/Investigating Officer. The said application was submitted
to the Court by the learned APP on 08.05.2020 by merely appending
his signature at the bottom of the page, without even making an
endorsement that he had perused the grounds and that he was satisfied
about the progress of the investigation and the reasons set out for
extension of time to complete the investigation. The decision in
Surendra Pundalik Gadling( supra)is not applicable to the facts of the
case as in the present case the application does not even remotely
reflect independent application of mind by the public prosecutor. The
application dated 6.5.2020 is nothing but a transmission of the request
of an Investigating Officer for extension of time. Such request, which is
submitted without being satisfied of the progress of the investigation
and the reasons of detention, cannot be construed as a report of the
public prosecutor as envisaged by proviso to Sub-section (4) of Section
36(A) of the NDPS Act.
32. It is also pertinent to note that the reasons stated in the
application for extension of time are that the persons involved in

abetting the accused no.2 could not be summoned and their statements
could not be recorded, Chemical Analysis Report and Call Details
Report could not be obtained and related investigation could not be
completed due to lock down declared in the country in view of Covid
19 pandemic. Thus, the main reason for seeking extension is inability
to complete the investigation due to lockdown declared because of
Covid 19 pandemic.
33. The application/report dated 6.5.2020 only gives the details of
investigation carried out on 12.11.2019 viz. the arrest of the applicant
and the seizure of the contraband substances allegedly recovered from
the applicant. The report does not disclose the progress of
investigation, which is one of the requirements of report for extension,
under proviso to sub section (4) of Section 36A of NDPS Act. It is also
pertinent to note that the Applicant was arrested on 12.11.2019,
whereas the lockdown was declared on 23.03.2020. The
application/report does not disclose the progress of the investigation
conducted during this four and half months period i.e. from the date of
the arrest till the date of the lock down. The report does not reflect
steps taken for recording the statements of the witnesses and calling for
the CDR and Chemical Analysis report during this period of four and half months. Under the circumstances, the reasons stated in the
application cannot be considered as genuine. There are no justifiable
reasons for extending the time for completing the investigation. Suffice
it to say that the prayer for extension of time, which directly affects the
liberty of the applicant, cannot be granted on the basis of an
application/report which is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act. As a necessary corollary thereof, the applicant is entitled for bail under Section 167(2) of Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
LD/VC/OCR/115/2020

Nayantara Gupta Vs The State of Maharashtra

CORAM: SMT. ANUJA PRABHUDESSAI, J.

Dated : 10th AUGUST, 2020.


. The Applicant has challenged the legality of the orders dated
11/5/2020 and 15/05/2020 passed by the learned N.D.P.S. Special
Judge, Pune, in CNR No.MHPU01-005675 of 2020.
2. The Applicant is named as an accused in Cr. No.14 of 2019
registered by (Narcotics Cell), Customs Pune. The case of the
prosecution, in brief, is that on 12/11/2019 the Narcotic Cell at Pune
received specific information that the Applicant herein was engaged in
selling Mephedrone (MD) and LSD stamps from the Clover Highland,
NIBM Road, (near Dorabjee Stores) Pune to potential customers in

Pune area. On the same day i.e. 22.11.2019, the officers of Customs
Narcotics Cell, Pune searched the aforesaid premises under Panchanma
and recovered from the applicant transparent plastic pouch containing
off white coloured powder like substance and a pouch containing some
stamp like substances. The substance was tested using Field Testing Kit
and the same tested positive for Mephadrone and LSD Lysergic Acid.
The off white coloured substance purported to be Mephadrone
weighing 54 gms, valued at Rs.3,24,000/- and 416 perforated stamps
purported to be LSD Lysergic Acid valued at Rs.20,80,000/- was seized
and FIR was registered against the Applicant for offences under for
offences under sections 8 (c), 21 (b), 29 (1) of the Narcotic Drugs and
Psychotropic Substances Act,1985 herein after referred as NDPS Act.
The Applicant was arrested on 12/11/2019 and was produced before
the remand Court on 13/11/2019. She has been remanded to judicial
custody from time to time.
3. The period of 180 days, as prescribed under sub section (4) of
Section 36A of NDPS Act for completing the investigation/ filing
complaint was to expire on 11.05.2019. On 08/05/2020, before the
expiry of 180 days of detention, the learned App submitted an
application for extension of the period to complete the investigation

and to file the complaint. Extension was sought mainly on the ground
of inability to summon and record the statements of the persons
alleged to have abetted the accused and for non availability of of
Chemical Analyses Report and Call Detail Report due to disruption
caused by Covid 19 situation. Reliance was also placed on order dated
23/3/2020 passed by the Hon'ble Supreme Court in Suo Moto Writ
Petition (civil) No.3 of 2020 extending the period of limitation
w.e.f.23/3/2020 until further orders, to obviate difficulties faced by the
litigants due to Covid 19 situation.
4. The learned Spl. Judge considered the prayer for extension on
11.5.2020 and passed the following order:_
"Perused the Application. In suo moto WP (Civil)
No(s).3/2020 the Hon'ble Apex Court has extended period of
limitation in all proceedings. Therefore, there is no need for
passing extension order by this court, since the limitation
stands extended by the order of the Hon'ble Apex court."
5. On 12.05.2020, the Applicant filed an Application for Bail
No.1710/2020 under Section 167(2)Cr.P.C. r/w Section 36A of the
NDPS Act. It was contended that the order of the Hon'be Apex Court in
suo moto petition was not applicable in as much as it does not extend
the period for filing the charge sheet. It was further contended that the
Applicant has right to be heard on the question of extension of period of investigation.
6. The prosecution resisted the application mainly on the ground
that the Applicant was arrested for offences involving commercial
quantity of contraband substance. It was further contended that that in
view of the directions issued by the Hon'ble Supreme Court, the
limitation period for filing the complaint stood extended and hence the
application for default bail was not maintainable.
7. By the impugned order dated 15/05/2020, the learned Judge
dismissed the application for bail. The relevant portion of the
impugned order reads thus:
"6. In suo moto, Writ Petition (Civil) No.(3)/2020), the
Hon'ble Apex Court has extended the period of limitation.
On 06/05/2020 the Inspector of Customs, Pune had made
application Exh.5 to the Court for extension of period of
limitation for filing the chargesheet. By the order dated
11/05/2020 my brother judge has observed that the
Hon'ble Apex Court has extended the period of limitation in
all proceedings. Therefore, there is no need for passing
extension order by this Court, since the limitation stands
extended by the order of the Hon'ble Apex Court. This
order clearly implies that impliedly my brother judge has
extended the period of limitation for filing charge sheet. If
the accused is aggrieved by that order, then he has to
challenge it before the appropriate forum. Since the
limitation for filing the charge sheet is extended by my
brother judge impliedly, the application u/s. 167 (2) of
Cr.P.C. is not maintainable. Therefore the application
deserves to be rejected."

8. Mr. Gaurav Thote, learned counsel for the Applicant submits that
copy of the application for extension of time was not served on the
Applicant, and that the learned judge has decided the application in the
absence of the applicant, without disclosing the grounds of extension.
This is in gross violation of the law laid down by the Hon'ble Supreme
Court in the case of Sanjay Dutt vs State (1994)5 SCC 410 and Sanjay
Kumar Kedia v/s. Narcotics Control Bureau (2009) 17 SCC 631.
9. He submits that the Application for extension is signed by the
Investigating Officer and merely submitted by the Public Prosecutor
without due application of mind. He contends that the said application
cannot be construed as a report of the public prosecutor as envisaged
in the proviso to sub section (4) of Section 36A of the NDPS Act.
10. The learned Counsel for the applicant further submits that the
report does not disclose the progress of investigation and does not spell
out the reasons for extension. Relying upon the decision of the Apex
Court in Hitendra Vishnu Thakur and ors. v/s. State of Maharashtra
and Ors. (1994) 4 SCC 602, the learned Counsel for the applicant
contends that the report is not a mere formality but requires due
application of mind as to the ground for delay and the reasons for

further detention. He submits that the application/report does not
meet the requirements envisaged in the proviso to sub section(4) of
Section 36A of NDPS Act. He submits that an indefeasible right
accrued in favour of the Applicant could not have been defeated and
her liberty could not be curtailed in such a casual manner.
11. The learned counsel for the Applicant has relied upon the
decision of the Hon'ble Apex Court in S. Kasi vs State Through The
Inspector Of Police Samaynallur Police Station Madurai District, on 19th
June, 2020 in Criminal Appeal No.452 of 2020 to contend that the
order dated 23/3/2020 passed by the Hon'ble Supreme Court in Suo
Moto Writ Petition (civil) No.3 of 2020 has no consequence on the right
accrued to the accused under section 167 Cr.PC or 36A NDPS Act. He
therefore contends that the time limit for filing the complaint was not
extended by virtue of order dated 23.3.2020 in Suo Moto Writ Petition.
He submits that there cannot be implied extension of period of
limitation prescribed under Section 167 Cr.P.C or 36A NDPS Act. The
complaint was not filed within the time prescribed under Section 36A
of the NDPS Act, hence an indefeasible right had accrued in favour of
the applicant. This right, which was availed by the applicant before
filing of the charge sheet, could not have been defeated by contending that there was an implied extension of period.
12. The learned APP submits that the application for extension of
time was filed before the expiry of 180 days. The prosecutor has
appended his signature at the end of the application. Relying upon the
decision of the Apex Court in the State of Maharashtra v/s. Surendra
Pundlik Gadling and ors. (2019) 5 SCC 178, he submits that the said
application meets the requirement of proviso under Section 36-A(4) of
NDPS Act.
13. The learned APP further contends that the learned Judge had not
dismissed the application for extension of time, but had refrained from
passing an order in view of the order of the Hon'ble Apex Court in Suo
Moto Writ Petition No. 3 of 2020. He therefore contends that no
indefeasible right had accrued in favour of the petitioner and that at
the best it was only an inchoate right. He has also relied upon the
decision of the Apex Court in Rambeer Shokeen vs. State of NCT of
Delhi 2018 (2) SCC Cri. 498, decision of this court in Prasad Rama
Harmalkar v/s. State of Goa in Criminal Bail Application No.164 of
2009, and the decision of Delhi High Court in Sarjilimum vs. State of
NCT Delhi in Criminal M.C. No.1475 of 2020 dated10/07/2020. He
further submits that the investigation could not be completed and the complaint could not be filed within the prescribed period due to non
availability of the witnesses, as well as non availability of Chemical
Analyser's report and Call Detail Report in view of disruption caused by
COVID-19 pandemic. He therefore contends that there are reasonable
and genuine grounds for extending the time and that the applicant is
not entitled for default bail.
14. I have perused the records and considered the submissions
advanced by the learned counsels for the respective parties.
15. The Applicant has questioned the legality and propriety of the
impugned order on the ground of infringement of indefeasible right to
be released on statutory bail under section 167 (2) Cr.P.C. Before
adverting to the facts of the case it would be advantageous to refer to
the relevant provisions and the law on the subject. The right to bail is
inextricably linked to the right guaranteed under Article 21 of the
Constitution of India, which inter alia provides that no person shall be
deprived of personal liberty except according to procedure established
by law. Whereas Article 22(2) mandates that every person who is
arrested and detained in custody shall be produced before the nearest
Magistrate within a period of twenty four hours of such arrest

excluding the time necessary for the journey from the place of the
arrest to the court and no such person shall be detained beyond the
said period without the authority of a magistrate. Section 57 of the
Cr.P.C., which creates an embargo on detention of a person arrested
without warrant for a period exceeding 24 hours, exclusive of time
necessary for the journey from the place of the arrest to the court, in
the absence of a special order under section 167 Cr.P.C, secures this
constitutional object and mandate. Sub section 2 of Section 167 deals
with powers of the Magistrate to detain the accused in custody where
the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten
years and for 60 days, where the investigation relates to any other
offence. The proviso to sub section (2) of Section 167 confers powers
on the magistrate to release the accused on bail if the investigation is
not completed within this period and the accused makes an application
for that purpose and is prepared to furnish bail.
16. In S. Kasi (supra), while reiterating the scope and object of
Section 167 (2), the Apex Court has observed that the provisions of
Section 57 as well as Section 167 are supplementary to each other,
which recognize right of personal liberty of a person as enshrined in the Constitution of India. It has been held that the proviso to sub
section 2 of Section 167 is a beneficial provision for curing the mischief
of indefinitely prolonging the investigation thereby affecting the liberty
of a citizen. The Apex Court has held that the right for default bail is
indefeasible right, which cannot be allowed to be frustrated by the
prosecution on any pretext. The Apex Court after referring to several
earlier judgments, has reiterated that except under special enactments,
which have modified the provisions of the Code including section 167
empowering the Court to extend the period, no court can directly or
indirectly extend such period of 90 days or 60 days, as the case may be.
17. The NDPS Act is one such special enactment which under subsection
(4) of section 36A has modified the period of 90 days stipulated
in sub section (2) of section 167 to 180 days for certain categories of
offences and has further empowered the Court to extend such period
for further maximum period up to one year. In Sanjay Kumar Kedia
v/s. Narcotics Control Bureau (2009) 17 SCC 631, while dealing with
the provisions of NDPS Act, the Apex Court has observed as under :-
"Section 167 of the Code deals with the procedure wherein
investigation cannot be completed in 24 hours and the
various sub-sections provide for the maximum period
beyond which a person cannot be detained and this period
varies between 60 and 90 days keeping in view the gravity
of the offence - the maximum period of 90 days being

provided with respect to offences punishable with death
etc. and 60 days for other offences, and if the investigation
is not completed within this period, the accused is entitled
to bail under Section 167 sub-section (2) if he makes an
application for that purpose and is prepared to furnish bail.
It will be seen that Section 167 does not envisage an
extension of the period of detention of an accused in
custody beyond the specified periods. The legislature,
however, thought in its wisdom, that certain special
categories or situations required that the investigating
agencies should be given more time to investigate a matter
and to file their complaint or charge-sheets and such
provisions have been made under special statutes.
8. The Terrorist and Disruptive Prevention Act, 1987
(hereinafter called the `TADA') and the Act are two such
special legislations. Section 36A (4) of the Act in so far as
is relevant, reads as under :-
"Section 36 A.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx (2) xxxx (3) xxxx
(4) In respect of persons accused of an offence punishable
under Section 19 or Section 24 or section 27 A or for
offences involving commercial quantity the references in
sub-section (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, if it is not possible to complete the
investigation within 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.
(5) xxxx
9. The maximum period of 90 days fixed under Section

167 (2) of the Code has been increased to 180 days for
several categories of offences under the Act but the proviso
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.”
18. In Hitendra Vishnu Thakur and ors.(supra), the Apex Court while
considering the scope of the proviso inserted as clause (bb) in subsection
(4) of Section 20 of TADA, which is pari materia with the
proviso to Sub-Section (4) of Section 36-A of the NDPS Act, has
highlighted the importance of the report of the public prosecutor and
emphasized that he is neither a 'post office' of the investigating agency
nor its 'forwarding agency' but is charged with a statutory duty. The
relevant paragraph reads thus:-
"23. We may at this stage, also on a plain reading of clause
(bb) of sub-section (4) of Section 20, point out that the
Legislature has provided for seeking extension of time for
completion of investigation on a report of the public
prosecutor. The Legislature did not purposely leave it to an
investigating officer to make an application for seeking
extension of time from the court. This provision is in tune
with the legislative intent to have the investigations
completed expeditiously and not to allow an accused to be
kept in continued detention during unnecessary prolonged
investigation at the whims of the police. The Legislature

expects that the investigation must be completed with utmost
promptitude but where it becomes necessary to seek some
more time for completion of the investigation, the
investigating agency must submit itself to the scrutiny of the
public prosecutor in the first instance and satisfy him about
the progress of the investigation and furnish reasons for
seeking further custody of an accused. A public prosecutor is
an important officer of the State Government and is
appointed by the State under the Code of Criminal
Procedure. He is not a part of the investigating agency. He is
an independent statutory authority. The public prosecutor is
expected to independently apply his mind to the request of
the investigating agency before Submitting a report to the
court for extension of time with a view to enable the
investigating agency to complete the investigation. He is not
merely a post office or a forwarding agency. A public
prosecutor may or may not agree with the reasons given by
the investigating officer for seeking extension of time and
may find that the investigation had not progressed in the
proper manner or that there has been unnecessary, deliberate
or avoidable delay in completing the investigation. In that
event, he may not submit any report to the court under
clause (bb) to seek extension of time. Thus, 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 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 must, therefore, strictly comply with the
requirements as contained in clause (bb). The request of an
investigating officer for extension of time is no substitute for
the report of the public prosecutor. Where either no report as
is envisaged by clause (bb) is filed or the report filed by the
public prosecutor is not accepted by the Designated Court,
since the grant of extension of time under clause (bb) is
neither a formality nor automatic, the necessary corollary
would be that an accused would be entitled to seek bail and
the court 'shall' release hi on bail if he furnishes bail as
required by the Designated Court. It is not merely the
question of form in which the request for extension under
clause (bb) is made but one of substance. The contents of the
report to be submitted by the public prosecutor, after proper
application of his mind, are designed to assist the Designated
Court to independently decide whether or not extension
should be granted in a given case. Keeping in view the
consequences of the grant of extension i.e. keeping an
accused in further custody, the Designated Court must be
satisfied for the Justification, from the report of the public
prosecutor, to grant extension of time to complete the
investigation. Where the Designated Court declines to grant
such an extension, the right to be released on bail on account
of the 'default' of the prosecution becomes indefeasible and
cannot be defeated by reasons other than those contemplated
by sub-section (4) of Section 20 as discussed in the earlier
part of this judgment. We are unable to agree with Mr
Madhava Reddy or the Additional Solicitor General Mr Tulsi
that even if the public prosecutor 'presents' the request of the
investigating officer to the court or 'forwards' the request of
the investigating officer to the court, it should be construed
to be the report of the public prosecutor. There is no scope
for such a construction when we are dealing with the liberty
of a citizen. The courts are expected to zealously safeguard
his liberty. Clause (bb) has to be read and interpreted on its
plain language without addition or substitution of any

expression in it. We have already dealt with the importance
of the report of the public prosecutor and emphasized that he
is neither a 'post office' of the investigating agency nor its
'forwarding agency' but is charged with a statutory duty. He
must apply his mind to the facts and circumstances of the
case and his report must disclose on the face of it that he had
applied his mind to the twin conditions contained in clause
(bb) of sub-section (4) of Section 20. Since the law requires
him to submit the report as envisaged by the section, he must
act in the manner as provided by the section and in no other
manner. A Designated Court which overlooks and ignores the
requirements of a valid report falls in the performance of one
of its essential duties and renders its order under clause (bb)
vulnerable. Whether the public prosecutor labels his report as
a report or as an application for extension, would not be of
much consequence so long as it demonstrates on the face of it
that he has applied his mind and is satisfied with the progress
of the investigation and the genuineness of the reasons for
grant of extension to keep an accused in further custody as
envisaged by clause (bb) (supra). Even the mere
reproduction of the application or request of the investigating
officer by the public prosecutor in his report, without
demonstration of the application of his mind and recording
his own satisfaction, would not render his report as the one
envisaged by clause (bb) and it would not be a proper report
to seek extension of time. In the absence of an appropriate
report the Designated Court would have no jurisdiction to
deny to an accused his Indefeasible right to be released on
bail on account of the default of the prosecution to file the
challan within the prescribed time if an accused seeks and is
prepared to furnish the bail bonds as directed by the court. "
19. In Hitendra Thakur (supra) the Apex Court had observed that
though Clause (b) or Clause (bb) of Sub section (4) of Section 20 TADA
does not specifically provide for the issuance of notice to the accused,
such notice must be read into these provisions both in the interest of
accused and the prosecution as to do complete justice between the
parties. In Sanjay Dutt (supra) the Constitution Bench of the Apex

Court while considering the requirement of notice as well as the nature
of indefeasible right of the accused to be released on bail by virtue of
Section 20(4)(bb) has held that :
" 2)(a) Section 20(4)(bb) of the TADA Act only requires
production of the accused before the court in accordance
with Section 167(1) of the Code of Criminal Procedure and
this is how the requirement of notice to the accused before
granting extension beyond the prescribed period of 180 days
in accordance with the further proviso to clause (bb) of subsection
(4) of Section 20 of the TADA Act has to be
understood in the Judgment of the Division Bench of this
Court in Hitendra Vishnu Thakur. The requirement of such
notice to the accused before granting the extension for
completing the investigation is not a written notice to the
accused giving reasons therein. Production of the accused at
that time in the court informing him that the question of
extension of the period for completing the investigation is
being considered, is alone sufficient for the purpose.
(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 ensures 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, so released on bail may be arrested
and committed to custody according to-the provisions of the
Code of Criminal Procedure. The right of the accused to be
released on bail after filing on the challan, notwithstanding
the default in filing it within the time allowed, as governed
from the time of filing of the challan only by the provisions
relating to the grant of bail applicable at the stage."
20. It is thus certain that under Section 36A of NDPS Act, which is a
special legislation, the Court is authorized to detain a person accused of an offence under Section 19 or 24 or 27A or for offences involving
commercial quantity for a period of 180 days. The proviso to sub-
Section (4) of Section 36A also enables the Special Court to extend the
period of investigation and to detain the accused pending such
investigation for a maximum period upto one year. Such extension can
be granted only on the report of the public prosecutor indicating the
progress of the investigation and setting out the reasons for detention
of the accused beyond the period of 180 days. The law as expounded in
Hitendra Thakur (supra) makes it clear that the report is not a mere
formality but must indicate due application of mind and subjective
satisfaction of the public prosecutor regarding progress of the
investigation and specific reasons for the detention of the accused
beyond the prescribed period. Satisfaction of this twin condition is
therefore a prerequisite of request for extension of time for
investigation. Though it is not necessary to issue a written notice to the
accused about extension of time, principles of natural justice shall
stand complied with on producing the accused and informing him that
the question of extension of period of completing the investigation is
being considered. Satisfaction of the court in respect of the report of
the public prosecutor is a sine qua non for extension of time to
complete the investigation.

21. An indefeasible right accrues in favour of the accused for being
released on bail when the investigating agency fails to file the challan
within the prescribed period, or fails to apply for extension of time to
complete the investigation or when the prayer for extension is rejected
by the Court. Nevertheless, such right can be enforced only when the
accused applies for bail and is ready to furnish surety. In such
circumstances, the Court has no other option but to release the accused
on bail. The dictum of the Constitution Bench of the Hon'ble Supreme
Court in Sanjay Dutt (supra) is that the indefeasible right accrued in
favour of the accused is enforceable only prior to the filing of the
challan. When such right is already availed of, the accused has
indefeasible right to be released on bail notwithstanding subsequent
filing of challan. On the other hand, the right for default bail, if not
already availed of, would stand extinguished and become
unenforceable once the challan is filed. In such a situation the
provision under section 167 ceases to apply and the question of grant
of bail has to be considered on merits of the case under the provisions
relating to grant of bail.
22. It is also well settled that if the prayer for extension of time to
complete investigation is made before the expiry of the prescribed

period and the accused also files application for bail, both applications
should be considered together. The right of the accused remains to be
inchoate till the application for extension is decided and the grant of
bail is subject to rejection of prayer for extension of time to complete
the investigation.
23. In the instant case, the records indicate that the applicant was
arrested on 12.11.2019 for offences under NDPS Act involving
commercial quantity. She had been produced before the Court on
13.11.2019 and pending investigation remanded to judicial custody
from time to time. The statutory period of 180 days, as prescribed in
Section 36A of the NDPS Act was to expire on 11.5.2020. Even before
expiry of the said period, an application was filed under proviso to sub
section (4) of Section 36A of the NDPS Act for extension of period to
complete the investigation. It is seen that the Applicant was not
produced before the court and was not informed of the grounds of
extension. Furthermore, a perusal of the order dated 11.05.2020
reveals that the application was neither granted nor rejected on merits
but the learned judge had refrained from passing any order on the said
application in view of the order passed by the Apex Court in suo moto
WP (Civil) No.3 of 2020 extending the period of limitation.

24. On the very next day, i.e on 12.05 2020, the applicant filed an
application for bail under section 167(2) of Cr.P.C. contending that the
order of the Apex Court in Suo Moto WP (Civil) NO.3 of 2020 was not
applicable and that there was no extension of time to file the challan.
The application for extension of time was not expressly granted or
rejected. Hence, in view of the dictum in Sanjay Dutt (supra) the
concerned Court could not have assumed jurisdiction to consider the
prayer for grant of statutory bail, which was filed during the pendency
of the application for extension of time to complete investigation. Since
the application for grant of statutory bail was dependent on rejection of
prayer for extension, of time, it was the duty of the Court to consider
the prayer for extension of time and decide the same on merits. It was
only upon extension of time for investigation that the Court could
reject the application for statutory bail. By the impugned order dated
15.05.2020, the learned judge dismissed the said application on the
ground that the Apex Court has already extended the period of
limitation in all proceedings. Referring to the order dated 11.05.2020,
the learned judge has observed that the predecessor judge has
impliedly extended the period of limitation for filing the charge sheet
and hence the application for bail under section 167(2) Cr.P.C. was not maintainable.
25. It is pertinent to note that in S. Kasi (supra) the Apex Court has
held that the order dt. 23.3.2020 in Suo Moto Wp (Civil) NO.3 of 2020
never meant to curtail any provision of the Code of Criminal procedure
or any other statute which was enacted to protect the personal liberty
of a person. It has been held that the right of prosecution to file a
charge sheet even after a period of 60 days/90 days is not barred. The
prosecution can very well file a chargesheet after 60 days/90 days but
without filing a charge sheet they cannot detain an accused beyond a
said period when the accused prays to the court to set him at liberty
due to non-filing of the charge sheet within the period prescribed. The
right of prosecution to carry on investigation and submit a chargesheet
is not akin to right of liberty of a person enshrined under Article 21 and
reflected in other statutes including Section 167 Cr.P.C. The Apex
Court has concluded that
"We thus, are of the view that neither this Court in its order
dated 23.3.2020 can be held to have eclipsed the time
prescribed under Section 167(2) of Cr.P.C. nor the
restriction which have been imposed during the lockdown
announced by the Government shall operate as any
restriction on the rights of an accused as protected by
Section 167(2) regarding his indefeasible right to get a
default bail on non-submission of charge sheet within the
time prescribed."

26. It is thus well settled that the extension of limitation vide order
in Suo Moto WP (Civil) No.3 of 2020 has no application to period
contemplated in section 167 Cr.P.C. It is pertinent to note that the
impugned order dated 11/5/2020 was passed in the absence of the
applicant without informing her the grounds of extension. In the bail
application filed on the very next date, the applicant had raised the
issue of applicability of order in suo moto Writ Petition No.3 of 2020 to
the period contemplated in Section 167 of Cr.P.C. The learned Judge
has brushed aside this issue by observing that the predecessor judge
has impliedly extended the period of investigation. Suffice it to say
that the law does not recognize implied extension of time envisaged
under sub section (4) of Section 36A of the NDPS Act. Moreover,
personal liberty guaranteed by the Constitution of India is too precious
a right to be tinkered with or defeated by implied extension of time for
investigation.
27. It is pertinent to note that Section 167 Cr.P.C. vests powers in the
court to detain a person accused of offences for a maximum period of
90 or 60 days as specified therein. Section 167 does not authorize
extension of the period of detention beyond the specified period.
Whereas, in respect of offences referred to in Section 36A, the

maximum period of detention is 180 days, with further powers to
extend such period upto one year. This procedural safeguard of
stipulating the maximum period of detention is to protect the accused
from indefinite incarceration and to have the investigation completed
with utmost promptitude. However, taking note of the fact that certain
categories of offences require more time for investigation, the
legislature has made provision for extension of time in certain special
statutes. The object of conferment of such power is to strike a balance
between the rights of the accused and the societal interest.
28. The NDPS Act is a special enactment, enacted to curb the
wide spread menace of clandestine smuggling and illegal trafficking of
narcotic drugs and psychotropic substance. Proviso to sub section (4)
of Section 36-A NDPS Act, is one of such specific provisions, which
enables the Court to extend the period of detention for a further period
up to one year. Undisputedly, such extension, which tends to curtail
personal liberty, cannot be mechanical but has to be with due
application of mind and on being satisfied about the progress of the
investigation and the reasons for detention as spelt out in the report of
the prosecutor justifying such extension. The learned Judge has
therefore grossly erred in holding that the time to complete the

investigation has been extended by the order of the Supreme Court or
that the same was impliedly extended by the predecessor Judge.
29. The ld. APP concedes that the order of the Apex Court in Suo
Moto Application NO.3 of 2020 has no application in the matter of
extension of time to complete the investigation. The learned APP also
concedes that there cannot be implied extension of the time to
complete the investigation. He submits that the matter be remitted to
the Special Court for a proper decision on the report.
30. Undoubtedly, remitting the matter is one of the options available.
However, considering the factual matrix and with a view to obviate
further delay in the matter involving the issue of personal liberty, the
parties were heard on the merits of the report for extension of time,
which reads thus:
"BEFORE THE HON'BLE SPECIAL JUDGE, NDPS, PUNE AT PUNE
Customs C.R.No.14/2019
Inspector of Customs (Prev.) ..Complainant
V/s.
Nayantara Gupta
..Accused.
2. Based on the information received Narcotics Customs
Pune, the complainant most respectfully submits before the
Hon'ble Court as under:
Narcotics Cell Customs Pune, conducted search operation on 12th

November, 2019, at the Clover high land, NIBM Road, (near
Dorabji Stores) Pune.
3. During the search at the Clover high Land NIBM Road
(Near Dorabji Stores, Pune).Accused was selling drugs from
mentioned premises and recovered 54 grams of offwhite coloured
powder purported to be Mephedrone (MD) valued at
Rs,3,24,000/- was seized and 416 numbers of stamp shaped
papers, purported to be "LSD", valued at Rs.20,80,000/- total
valued at Rs.24,04,000/- was seized under panchanama dated
12.11.2019 from the place of selling drugs Clover high land, NIBM
Road, (near Dorabji Stores) Pune.
4. The due date for filing the complaint in the present case is
10.05.2020. HOwever, the investigation in the present case is
incomplete as on today for the reasons as below.
i) Chemical Analysis report of the purported Narcotic
substance seized in the case is awaited fromm CSFL Hyderabad for
the reasons that they are not functioning due to lock down orders
all over the country because of COVID 19 virus.
ii) The interrogation and recording of statement of persons
alleged to have abetted the accused no.2 is still pending as the
persons could not be summoned due to lock down orders all over
the country because of COVID 19 virus.
iii) Obtaining of call detail report and related investigation is
incomplete till date due to lock down orders all over the country
because of COVID 19 virus.
iv) Attention is also invited to an order issued Suo Moto WP
(Civil) No.3 of 2020 by Hon'b;e Supreme Court dt. 23.03.2020
allowing extension to period of limitation in all such matters under
general law of limitation w.e.f. 23.03.2020 till further orders to be
passed by Hon'ble Supreme Court.
5. It is humbly submitted that the last date of filing complaint
is 10.5.2020. In view of the points discussed above and Hon'ble
Supreme Courts order referred to, the provisions of Section 36(4)
of NDPS Act, 1985 are applicable in the present case for extension
for filing the complaint in the present case.
6. It is therefore prayed that
(a) The extension for admissible time period for filing the
complaint may please be granted to the complainant.
(b) Any other just and equitable order may be passed in the
interest of justice.
Sd/-
06.05.2020 Inspector of Customs, Pune.
Sd/-
A.G.Sakpal. SPP.

8.5.2020
31. The Application dated 06.05.2020, purported to be the report
under the proviso to sub-section (4) of Section 36 A is signed by the
complainant/Investigating Officer. The said application was submitted
to the Court by the learned APP on 08.05.2020 by merely appending
his signature at the bottom of the page, without even making an
endorsement that he had perused the grounds and that he was satisfied
about the progress of the investigation and the reasons set out for
extension of time to complete the investigation. The decision in
Surendra Pundalik Gadling( supra)is not applicable to the facts of the
case as in the present case the application does not even remotely
reflect independent application of mind by the public prosecutor. The
application dated 6.5.2020 is nothing but a transmission of the request
of an Investigating Officer for extension of time. Such request, which is
submitted without being satisfied of the progress of the investigation
and the reasons of detention, cannot be construed as a report of the
public prosecutor as envisaged by proviso to Sub-section (4) of Section
36(A) of the NDPS Act.
32. It is also pertinent to note that the reasons stated in the
application for extension of time are that the persons involved in

abetting the accused no.2 could not be summoned and their statements
could not be recorded, Chemical Analysis Report and Call Details
Report could not be obtained and related investigation could not be
completed due to lock down declared in the country in view of Covid
19 pandemic. Thus, the main reason for seeking extension is inability
to complete the investigation due to lockdown declared because of
Covid 19 pandemic.
33. The application/report dated 6.5.2020 only gives the details of
investigation carried out on 12.11.2019 viz. the arrest of the applicant
and the seizure of the contraband substances allegedly recovered from
the applicant. The report does not disclose the progress of
investigation, which is one of the requirements of report for extension,
under proviso to sub section (4) of Section 36A of NDPS Act. It is also
pertinent to note that the Applicant was arrested on 12.11.2019,
whereas the lockdown was declared on 23.03.2020. The
application/report does not disclose the progress of the investigation
conducted during this four and half months period i.e. from the date of
the arrest till the date of the lock down. The report does not reflect
steps taken for recording the statements of the witnesses and calling for
the CDR and Chemical Analysis report during this period of four and half months. Under the circumstances, the reasons stated in the
application cannot be considered as genuine. There are no justifiable
reasons for extending the time for completing the investigation. Suffice
it to say that the prayer for extension of time, which directly affects the
liberty of the applicant, cannot be granted on the basis of an
application/report which is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act. As a necessary corollary thereof, the applicant is entitled for bail under Section 167(2) of Cr.P.C.
34. It is pertinent to observe here that with grant of bail, liberty of
the applicant-accused stands protected but with casual approach of the
investigating officer and the public prosecutor in discharging their
statutory duties, the societal interest stands dented. It is not for the
court to conjecturise the reasons or causes for such lackadaisical
investigation or mechanical approach of the public prosecutor. Suffice it
to say that such lapses tend to render the stringent provisions of bail
nugatory and thereby deflect the criminal justice system. It is therefore
necessary that the concerned authorities look into the above noted
serious lapses, fix accountability, and take corrective measures in the
matter.

35. For the reasons stated above, the impugned order dated cannot
be sustained. Hence, the following order :-
(a)The application is allowed.
(b)The impugned orders dated 11/5/2020 and 15/5/2020
passed by the learned Special judge, Pune are set-aside.
(c) The Applicant, arrested in C.R.No.14/2019 registered
with Anti Narcotic Cell, Customs Pune, is directed to be
released from jail on executing PR bond in the sum of
Rs.1,00,000/- (Rupees One Lakh only) with two solvent
sureties in the like amount.
(d)The Applicant shall deposit the passport, if any, with the
Investigating Officer within a week from the date of his
release.
(e)The Applicant shall not leave the State without prior
permission of the Court.
(f) The Applicant shall furnish her permanent residential
address and contact details to the Investigating Officer
within seven days from her release.
(g)The Applicant shall not tamper with the evidence or
attempt to influence or contact the complainant,
witnesses or any other person in any manner.
36. Learned APP to forward copy of this judgment to the
Commissioner of Customs, Pune, Narcotic Cell.

37. Application stands disposed of in the above terms.
(SMT. ANUJA PRABHUDESSAI, J.)

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