1 cr-apln-64-11 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 64 OF 2011 (FOR CONDONATION OF DELAY) IN CRIMINAL APPLICATION NO. OF 2011 (FOR LEAVE TO APPEAL) The State of Maharashtra ..Applicant Vs. Rizwan Kasim Shaikh @ Lambu and Ors. ..Respondents .... Ms. Alpa Zaveri A.P.P. for the State Mr. Aayaz Khan with Ms. Zehra Charnia Adv. for Respondents .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : FEBRUARY 02, 2011 P.C.: 1 We have heard the learned A.P.P. This is an application filed 2 cr-apln-64-11 by the Anti Narcotic Cell of the State of Maharashtra for condonation of delay caused in filing Cri. Application No. 36 of 2011 for seeking leave to appeal under Section 378(3) of Cr.P.C. against the order of acquittal passed in N.D.P.S. Special Case No. 42 of 2008 by the learned Special Judge under N.D.P.S. Act, 1985 on 22.5.2009. As per the office note, the delay caused is 1 year and 154 days. We are, therefore, required to consider whether good and sufficient reasons have been made out by the applicant to condone this delay. 2 Undoubtedly, an appeal against the order of acquittal is required to be filed within 90 days against the order passed under N.D.P.S. Act as per the law laid down by the Apex Court in the case of State of Delhi Administration Vs. Dharmpal; 2001 A.I.R. (S.C.) 2924. In the instant case, the reasons for this inordinate delay have been been explained in paragraphs 2 to 4 of the application. Admittedly, an application for certified true copy was made on 2.6.2009 and a certified true copy of the acquittal order was received on 9.6.2009. On 25.8.2009 the Police Inspector incharge of the Anti Narcotic Cell of Mumbai, approached the learned Additional Public Prosecutor, who had conducted the trial to seek her opinion. It is stated that on 27.7.2010 the learned A.P.P. in the trial Court gave opinion in writing and stated that there was no case to file an appeal. It is also stated that the learned A.P.P. gave 3 cr-apln-64-11 five reasons to justify the opinion. In the meanwhile, the original accused no.3 approached this Court in Writ Petition No. 1728 of 2010 seeking directions for return of the frozen properties consequent to the acquittal order passed in his favour and the said petition was disposed off on 22.12.2010 in terms of the following order: “ If the respondent-State fails to appeal against acquittal and/or order of return of property within a period of four weeks from today and fails to move the Court for appropriate interim relief within six weeks from today, the Competent Authority shall forthwith release the immovable property being flat no. 303 in Kargil Apartments, Building No.1, Taluka Vasai, Dist. Thane to the petitioner before this Court, who was accused no.3 in the disposed off criminal case. However, if the respondent-State succeeds in getting interim order within the specified period of six weeks from today, the disputed property will have to abide by such directions as may be passed in the said proceedings. ” 3 We are now informed, across the bar, that the application was filed by the accused no.3 before the Competent Authority and it came to be allowed on 28.1.2011. This application for condonation of delay 4 cr-apln-64-11 appears to have been filed on or about 20.1.2011. 4 Though it has been stated that the Police Inspector from the Anti Narcotic Cell, had approached the learned Additional Public Prosecutor who appeared before the trial Court on 25.8.2009 seeking her opinion, there is nothing before us that a letter to that effect was addressed to learned A.P.P. and she gave her opinion in writing either way. It is only when this writ petition was filed on 14.6.2010 for the first time, on 20.7.2010 the Anti Narcotic Cell approached the learned Additional Public Prosecutor and she gave her written opinion on the very same day mentioning that it was not a fit case for filing an appeal before the higher Court and she set out five grounds to justify her opinion. This application is solely based on the order passed by this Court on 22.12.2010 in W.P. No. 1728 of 2010 and in our opinion, the liberty granted by this Court, cannot be a reason to condone the delay of more than one year. The delay caused prior to 22.12.2010 has not been explained and it is evident that the authorities had given up the challenge to the order of acquittal and they had accepted the finality of the acquittal, it is only when the accused no. 3 succeeded before this Court for return of property which was frozen, that the Anti Narcotic Cell decided to challenge the order of acquittal. We therefore, do not find any justification to condone such inordinate delay and more so, when the same has not 5 cr-apln-64-11 been explained satisfactorily. 5 Hence, the application is rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]