Radhakrishnan v. State

1. The application in Crl.O.P No. 5235 of 2004 is filed by the A-1 and Crl.O.P No. 779 of 2005 is filed by A-2, seeking bail for the alleged offences under Sections 8(c) r/w 21(a) of NDPS Act 1985 and s. 174, Cr.P.C in Crime No. 238/2004, on the file of the respondent police.

2. The learned counsel would contend that even though the petitioners are implicated for the alleged offences and the quantity of the contraband is a Commercial quantity, they pray for the grant of bail, by virtue of powers under Section 167(2), Cr.P.C r/w 36-A(4) of N.D.P.S Act, 1985. In this connection, the learned counsel for the petitioners would contend that even though an application was filed on 29.10.2004 for grant of bail after the lapse of statutory period of 180 days, the Special Court rejected the said application, which is contrary to law. According to him, when an application was filed on 29.10.2004 for grant of statutory bail, the respondent police has not chosen to file any application seeking extension of time as contemplated under Section 36(A)(4) of NDPS Act. However, the respondents have filed the application only on 1.11.2004 and the same was also considered along with the application for grant of bail on the same day, viz., on 23.11.2004 Even though the Special Court's orders were passed in respect of both the applications, the reasons cited by the Special Court in rejecting the application for grant of bail proceeds on the footing that on the date of filing the application, the petitioners were admittedly in custody and the period of custody was extended till 3.11.2004 and as such the respondent is entitled to maintain an application seeking extension of time and rejected the application for grant of bail. The learned counsel would further add that orders passed by the Special Court in granting further time on the application of the prosecution, is without any basis and not in accordance with law, inasmuch as the proviso relating to Section 36(A)(4) specifically emphasise the independent application of mind on the part of the Public Prosecutor, who shall submit his report specifying the reasons for the detention of the accused beyond the said period of 180 days. Admittedly, in the present case, no application has been filed by the prosecution as envisaged, seeking time and therefore, there is flaw in the order of the Special Court, and as such it is contended that the petitioners are entitled for the grant of bail.

3. Per contra, the learned Government Advocate would contend that while dealing with the application for bail in a case where the quantity possessed by the petitioner is of a commercial quantity, the statutory rule as envisaged under Section 167(2), Cr.P.C should not be followed, since Section 37 of the NDPS Act has been enacted by the legislature to eradicate drug traffic and psychotropic substance. According to the learned Government Advocate, the Apex Court held that while considering the bail under the special enactment, the legislature has specifically thought it fit that the accused should not be released by bail as in other cases, inasmuch as Section 37(1)(b) specifically puts an embargo upon the Court while considering the grant of bail.

4. I have heard the learned counsel for either side.

5. Admittedly, on 29.10.2004 when the application of the petitioners was filed seeking grant of bail, the prosecution has not filed any application seeking extension of time, more particularly by relying on the report of the Public Prosecutor as envisaged in the Act. Only on 1.11.2004, an application was filed by the prosecution in Crl.M.P No. 6568 of 2004 seeking extension of detention period and the said application is filed based on the affidavit filed by the Investigating Officer. Nowhere in the said affidavit, there is any reference about the report of the Public Prosecutor or independent application of mind on the part of the Public Prosecutor- In this connection it is useful to refer the above relevant provisions namely 36-A(4) of NDPS Act as well as 167(2), Cr.P.C

Section 36-A(4) of NDPS Act: “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 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.”

Section 167(2) of Cr.P.C- The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody to such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life, imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter;

(b) no Magistrate shall, authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

A combined reading of both provisions would make it clear that in respect of the cases, which come under N.D.P.S Act, 1985, the statutory period of limitation is fixed as 180 days. The NDPS Act specifically says that the prosecution shall seek an extension of time on the basis of the report of the Public Prosecutor indicating any specific reasons. In the case on hand, the prosecution has not chosen to apply for extension of time based on the report of the Public Prosecutor. Admittedly, the report of the Public Prosecutor was not available along with the application filed, seeking extension of time. In fact, in the entire affidavit, there is no whisper at all about the existence of the report of the Public Prosecutor.

6. In this connection it is useful to refer the decision of the Apex Court in Hitendra Vishnu Thakur and others v. State of Maharashtra and others, 1994 SCC (Crl) 1087. The relevant portion of the judgment is in paragraph 23 which reads as follows:

“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 him 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 of ‘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 emphasised 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 fails 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. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension.”

The Apex Court specifically emphasize about the importance of the report of the Public Prosecutor. The Apex Court, while considering the provisions of the Act, has chosen to refer to the application of independent mind by the Public Prosecutor, who shall examine and submit the report. An application which is filed in the normal course seeking extension is deprecated inasmuch as, such application cannot be filed in a routine manner. The Apex Court has further held that there must be a subjective satisfaction on the part of the Public Prosecutor while filing an application seeking extension of time. After setting forth the guidelines thereunder, it is concluded in the said decision that in the absence of a separate report filed by the learned Public Prosecutor supported by an application seeking extension of time, the special Court is not entitled to grant extension of time.

7. Even though the learned Government Advocate has cited the decision of the Apex Court in Narcotics Control Bureau v. Kishan Lai and others, AIR 1991 SC 558 which was rendered by two judges Bench, to the effect that while considering the grant of bail the powers of the High Court is subject to limitations contained under provisions of Section 37 of NDPS Act 1985, the decision of the Supreme Court in Union of India v. Thamizharasi and others with Intelligence officer, Narcotics Control Bureau v. Arit U. Patel, 1995 SCC (Crl) 665, which is by a Bench of three judges, it is made clear that while considering the grant of bail application under Section 37 NDPS Act, bail is automatic on account of default in filing complaint within the maximum period specified therein. The relevant portion of paragraph 10 is extracted hereunder:

“The limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. But its very nature the provision is not attracted when the grant of bail is automatic on account of the default in fling the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167, Cr.P.C The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the Court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(1)(b) of the NDPS Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.”

8. In the light of the above principles, it is clear that the date on which the application seeking bail was filed there was no extension of time granted by the Court below. A perusal of the said order discloses that the said application of the prosecution was allowed by the Court below, considering the fact that the petitioners are in custody and the quantity is a commercial quantity. Further, in the said order no reference is made about the alleged report of the Public Prosecutor and the independent application of mind on his part. In fact, para 4 of the counter affidavit filed by the prosecution in Crl.M.P No. 6448/2004, wherein the petitioners have approached the Special Court for grant of bail, discloses that the prosecution has only filed the application seeking extension of time indicating the progress of investigation and nowhere it refers about the report of the Public Prosecutor as envisaged in Section 36-A(4) of NDPS Act. Similar view is expressed by the Apex Court in its decision in Hitendra Vishnu Thakur and others v. State of Maharashtra and others, 1994 SCC (Crl) 1087.

9. For the reasons stated above, I am of the opinion that the petitioners are entitled for the grant of statutory bail and accordingly the petitioners are ordered to be enlarged on bail on each of them executing a bond for a sum of the Rs. 5000 (Rupees Five Thousand only) with two sureties each for a like sum to the satisfaction of the learned Special District and Sessions Judge for E.C Act and N.D.P.S Act, Madurai, and on further condition that the petitioners shall report before the respondent police daily at 10 a.m, until further orders.

RV/PBB