1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(BAIL) NO. 164 OF 2009 Prasad Rama Harmalkar r/o Anjuna, Bardez, Goa, presently lodged in Judicial Custody, Mapusa, Goa. ... Applicant versus State of Goa, represented by Office-In-Charge, A.N.C. Police Station, Police H. Q., Panaji, Goa. ... Respondent Shri J. P. D'Souza, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 8TH JUNE, 2009. ORAL ORDER The applicant herein who is an accused in Crime No.14/2008 under Sections 20(b)(ii)(A), 21(b) and 22(b) and (C) of the N.D.P.S. Act, 1985 seeks bail in default for not completing the investigations within a period of 180 days, as contemplated by sub-section(4) of Section 36-A of the N.D.P.S. Act, 1985 r/w 2 Section 167(2) of the Code of Criminal Procedure, 1973, after the same has been denied to him by the learned N.D.P.S. Court, Mapusa, by Order dated 20-5-2009. 2. Section 36-A of the said Act was substituted with effect from 2-10-2001 and sub-section(4) thereof along with the proviso below it, reads as follows:- “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 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”. 3. There is no dispute that the applicant was arrested on 19-11-2008 for having been found in possession of various narcotics drugs and psychotropic substances some of which were of commercial quantity, and was remanded from time to time, and for the last time on 11-5-2009 with a further direction that the applicant should be produced on 20-5-2009 at 10.00 hours. At the time of the said remand, the learned Special Judge of the N.D.P.S. Court, Mapusa had noted that 3 180 days of remand would be over on 20-5-2009, and therefore the accused was directed to be produced on 20-5-2009 at 10.00 hours before that Court. It is now conceded by the learned Counsel appearing on behalf of the applicant as well as the learned Public Prosecutor that 180 days expired on the midnight of 19-5-2009. 4. There can be no dispute that the learned Public Prosecutor on 13-5-2009 had filed an application in terms of the above proviso for extension of time of 60 days for filing the charge-sheet, as the analysis report from the CFSL, Hyderabad, was not received, inspite of several reminders. Notice of this application dated 13-5-2009 was ordered to be issued to the accused who was in the judicial lock-up, by the learned Special Judge by Order dated 14-5-2009, and it is stated that the accused refused to accept a copy of the said application dated 13-5-2009 filed by the learned Public Prosecutor, Mapusa. Thereafter, the learned Special Judge appears to have proceeded on leave, and the accused was produced before the substitute Judge on 20-5-2009. On the same day the accused filed an application at about 9.40 a.m. for bail and the learned substitute Judge called upon the learned Public Prosecutor/I.O. to give their say by 10.00 a.m. on that day. This application dated 20-5-2009 was filed by the applicant without making any reference to the application dated 13-5-2009 filed by the learned Public Prosecutor or to the fact that the applicant/accused had refused to accept a copy of the same. The application filed by the learned Public Prosecutor was disposed of by the learned substitute Judge at 10.40 a.m. on 20-5-2009. The application was disposed of by the learned substitute Judge by observing that in the facts and circumstances 4 of the case and as the investigations could not be completed in 180 days and prior thereto the said application for extension of time was filed on 13-5-2009, the time for filing the charge-sheet is extended by 60 days beyond 19-5-2009. Thereafter, the application filed by the accused was disposed of on the same day at 11.15 a.m. observing that in the present case the learned Public Prosecutor had filed his report on 13-5-2009 seeking extension of time, and the time was extended by the Court today by 60 days, and as such the right of the accused to seek bail by default had lapsed, and accordingly, the learned substitute Judge proceeded to dismiss the application filed by the accused. 5. As already stated there can be no dispute that 180 days of detention of the applicant expired on the midnight of 19-5-2009 as conceded on behalf of both the parties. It is also undisputed that prior to that, the learned Public Prosecutor had already filed an application dated 13-5-2009 for extension of time in terms of the said proviso, and which was awaiting consideration of the learned Special Judge, even before the time of 180 days had expired. 6. Shri J. P. D'Souza, learned Counsel on behalf of the applicant submits that the applicant had acquired an indefeasible right to be admitted to bail after the midnight of 19-5-2009, and the said right could not be defeated by passing an order of extension of time subsequently. Learned Counsel further submits that soon after the applicant had acquired the said right on the midnight of 19-5-2009, the applicant had made an application for his release on bail at 5 9.40 a.m. on 20-5-2009. Learned Counsel further submits that the learned substitute Judge could not have extended the time on 20-5-2009 after it was expired on 19-5-2009 and in support of this last submission learned Counsel has relied on the decision of Orissa High Court in Bhagaban Pradhan and others v. Jayaram Mohanty and others(1995 Cri.L.J. 607), and, as regards the other submissions, learned Counsel has relied upon the cases of Uday Mohanlal Acharya v. State of Maharashtra(2001 Cri.L.J. 1832) and the State of Maharashtra v. Sharad B. Sarda(1988(1) Bom.C.R. 578). Reliance is also placed on the case of Union of India v. Thamisharasi and others(1995 Drugs Cases 129). 7. Shri C. A. Ferreira, learned Public Prosecutor, on the other hand, has submitted that none of the cases cited on behalf of the applicant, favour the accused. Learned Public Prosecutor further submits that in this case the applicant had no indefeasible right accrued in his favour after the expiry of 180 days in view of the proviso below sub-section(4) of Section 36-A of the Act. Learned Public Prosecutor further submits that the applicant lost his right, in case he had any, after the application filed by the learned Public Prosecutor on 13-5-2009 was granted by the Court. Learned Public Prosecutor further submits that the said application was filed on 13-5-2009 much prior to any right had accrued in favour of the applicant to be released on bail upon the expiry of 180 days of the arrest of the applicant. 6 8. The Apex Court in Uday Mohanlal Acharya v. State of Maharashtra(supra) has held that subsequent filing of the charge-sheet does not extinguish the indefeasible right acquired by the accused, and the accused can be said to have availed of his right to be released on bail on the date he has filed the application for being released on bail and offers to furnish bail, and such an accused who is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209, and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail. The Apex Court further held that: “If an accused charged with any kind of offence becomes entitled to be released on bail under Proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated”. The Apex Court also held that:- “In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interprete the expression “availed of to mean actually being released on bail after furnishing the necessary bail required would cause 7 great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period, the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand”. 9. As seen from the factual matrix, the accused was directed to be produced on 20-5-2009 on which day the learned substitute Judge had before him two applications to be considered, one filed earlier by the learned Public Prosecutor on 13-5-2009, and the other filed on behalf of the accused on the same day at about 9.40 a.m. Both the applications were disposed of by the learned substitute Judge after hearing both the parties. To repeat, the application dated 13-5-2009 filed by the learned Public Prosecutor was also disposed of after hearing the Advocate appearing on behalf of the accused, though earlier the accused had refused to accept a copy of the said application. In this context, reference could be made to the case of Hitendra Vishnu Thakur v. State of Maharashtra((1994 4 SCC 602) wherein, the Apex Court stated that 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. 8 10. The learned substitute Judge had two options before him on 20-5-2009, either to consider both the applications together or to consider first, the application which was filed first in point of time before him i.e. the application/report filed by the Public Prosecutor. The learned substitute Judge followed the latter course of action and granted extension of time to file the charge-sheet in terms of the proviso below sub-section(4) of Section 36-A of the Act. 11. The course adopted by the learned substitute Judge cannot at all be faulted. He was bound to consider the application of the learned Public Prosecutor first, which was filed earlier before the period of 180 days had expired. The expression “may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of investigation” appearing in the proviso below sub-section(4) in the words of the Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra(supra) which case was followed in Ateef Nasir Mulla v. State of Maharashtra(2005 AIR SCW 4131) 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) [of sub-section (2) of Section 167 as amended by Section 20(4) of Prevention of Terrorism Act, 2002] (in our case the proviso). The request of an 9 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. 12. The contention raised on behalf of the accused that no extension of time could be granted after 180 days had expired needs to be rejected. The learned Special Judge/substitute Judge was bound to consider the application/report filed by the learned Public Prosecutor on 13-5-2009 first in point of time as the same was pending, even before the applicant had filed an application for bail on 20-5-2009. The Order dated 20-5-2009 on the said application dated 13-5-2009 relates back to the date of the said application. In other words, the extension is deemed to have been granted by the N.D.P.S. Court from 13-5-2009. Considering the provision of sub-section(4) and the proviso, no right to be released on bail could have accrued to the accused on 20-5-2009 when an application for extension was pending from 13-5-2009. The contention that extension was granted by legal jugglery needs to be rejected. There is no legal jugglery in this case. There might have been jugglery in case the application/report dated 13-5-2009 was kept pending and the right of the accused 10 was recognized to be released on bail on 20-5-2009 after the expiry of 180 days. The right of the accused to be released on bail on 20-5-2009 was totally dependent on the said application/report dated 13-5-2009, and once the said application was granted by the Court for reasons stated, and regarding which there is otherwise no challenge, the accused could not have acquired in his favour any right to be released on bail on completion of 180 days. The ratio in Bhagaban Pradhan and others v. Jayaram Mohanty and others(supra) is not at all applicable to the facts of the case. It was held therein with reference to sub- section(6) of Section 116 of the Code that the proceedings taken would come to an end automatically in case the inquiry was not completed within six months and no formal order was contemplated and any order passed subsequently, after expiry of six months, would be illegal and without jurisdiction. Here, the very right of the accused was subject to the application filed by the Public Prosecutor for extension of time, in terms of the proviso, and such an application was filed even before any right to be released on bail could have accrued in favour of the accused. The accused could have acquired the right only in case the application for extension was rejected or the application was filed after the accused had acquired such right, and not otherwise. 13. The approach adopted by the learned Special Judge is correct and for very reasons stated by him, which I fully endorse, and as well as given above the application deserves to be dismissed. 11 14. Application, therefore, is hereby dismissed. N. A. BRITTO, J. RD