- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.491 OF 2008 in CRIMINAL APPLICATION NO.2917 OF 2008 with CRIMINAL APPLICATION NO.2917 OF 2008 Union of India through Mr.Prakash ... Applicant Anthony vs Chottath Mohnish Padmanabhan & ors ... Respondents Mr.D.J.Khambata Additional Solicitor General with Mr.Mandar Goswami for Applicant Mr.Ayaz Khan for Respondent nos. 1 and 2. Ms.P.P.Shinde APP for State CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 18th March, 2010 P.C. 1. This is an application praying for condonation of delay caused in filing Criminal Application No.2917 of 2008 under section 378 of the Code of Criminal Procedure. Originally, Criminal Application No.2917 of 2008 was filed under section 378 (2) of the Code of Criminal Procedure but, subsequently leave to amend was granted on 16th February 2010 in Criminal Application No.491 of 2008 so as to amend Criminal Application No.2917 of 2008 to bring it within the ambit of section 378 (4) of the Code - 2 - of Criminal Procedure so as to seek special leave to appeal against the order of acquittal passed on 29th August, 2007 by the Special Court under the N.D.P.S.Act. Though the order dated 2nd February 2010 stated that the Union of India would be applicant No.1 and original complainant Intelligence Officer would be applicant no.2, the fact remains that the application is for seeking Special Leave to appeal and therefore the application will have to be treated as the one filed under section 378 (4) of the Code of Criminal Procedure. 2. The applications have been filed on or about 22nd August, 2008 and order of acquittal is dated 29th August, 2007. As per sub-section 5 of Section 378 of the Code of Criminal Procedure, application for seeking Special Leave to appeal was required to be filed within six months from the date of the order of acquittal and this period of six months had expired on 28th February 2008. Thus, the application is beyond by six months. 3. As directed by this Court in its last order dated 26th February,2010 additional affidavits have been filed by Shri.Yashodhan Wanage, Zonal Director, NCB, Mumbai Zonal Unit, Shri Vipin Nair, Inspector of Customs (Preventive), Marine & Preventive Mumbai and Shri Pankaj Kapoor, Additional Government Advocate in the Ministry of Law, Department of Legal Affairs, Branch Secretariat, - 3 - Aayakar Bhawan, Mumbai. With the assistance of Mr.Khambatta the learned Additional Solicitor General, we have gone through these affidavits. 4. As per Mr.Khan,learned counsel appearing for the respondents no case has been made out to condone the delay of six months and even the additional affidavits have failed to explain the delay caused on day-to-day basis. He has referred to the decision in the case of AJIT SINGH THAKUR SINGH VS. STATE OF GUJRAT AIR 1981 (S.C.)_733 and submitted that it would be appropriate to reject this application for condonation of delay. Mr.Khan also referred to the orders passed in this application from time to time deprecating the casual attitude displayed by the officers concerned from the N.C.B. or the advocates concerned. 5. It is well-settled that though section 378 (5) of the Code of Criminal Procedure states that no application seeking Special Leave to appeal under section 378 (4) shall be entertained unless filed within the period of six months from the date of the order of acquittal,this court can invoke its powers under section 5 of the Limitation Act, 1963 and condone the delay if satisfied by the explanation provided in the application. In short, it is for the applicant to show that he has sufficient cause for not filing the application within - 4 - the time limit of six months from the date of the acquittal order. In this regard, we may rely upon the decision in the case of MANGU RAM RAM PERSHAD GONDAMAL THROUGH RAM PERSHAD AND JAIDAYAL VS MUNICIPAL CORPORATION OF DELHI AIR 1976 S.C.) 105. 6. As per the additional affidavit filed by Mr.Wanage who is the Zonal Director,NCB, Mumbai Zonal Unit, the Mumbai Unit was responsible for three States i.e. Maharashtra, Goa and Madhya Pradesh till 20th June 2008 and from 21st June, 2008 Indore Zonal Unit came to be opened for Madhya Pradesh and Mumbai Zonal unit now has only two states i.e. Maharashtra and Goa. The affiant has taken charge on 13th March 2008 at the Mumbai Unit and the earlier Zonal Director came to be transferred on 8th August, 2007 and from 8th August, 2007 to 12th March, 2008 the post remained vacant. Shri.Pankaj Kapoor from the Ministry of Law intimated his opinion on 29th February 2008 that it was not a fit case to challenge the order of acquittal before the High Court by filing an appeal and by this time the period of limitation of six months had already expired. As per the standing instructions of the Ministry of Law, Government of India, NCB re-approached the Department of Legal Affairs and in May 2008 the NCB was informed that it may proceed to challenge the order of acquittal on its own. The NCB therefore, at the first instance approached Shri - 5 - D.N.Salvi who is one of the standing counsel on the panel of the Union of India and he gave his consent letter on 26th May 2008. However, the NCB Headquarters by its letter dated 7th July, 2008 called upon the Zonal Unit to approach Shri C.P.George, Special Public Prosecutor who also declined. On 1st August, 2008 the NCB therefore, approached Shri.J.R.Solanki another Special Public Prosecutor and he too expressed his inability due to his busy schedule. It was for the first time that on 7th August, 2008 that NCB approached Shri.Mandar Goswami and on his consent, the NCB appointed him on 21st August, 2008. It is under these circumstances that an application for seeking leave to Appeal/Special Leave to appeal came to be filed on 22nd August, 2008. We do not see any laxity or casualness that could be attributed to the NCB, Mumbai Unit. It appears that it faced some difficulties in obtaining the approval. Initially, the Law Ministry opined against filing an application for seeking leave to appeal by its letter dated 29th February, 2008 and the subsequent approach also met with some unexpected queries and the NCB Headquarters could not finalise the appointment of a Special Public Prosecutor. It has been pointed out in the affidavit filed by Mr.Wanage that it does not have its own panel of prosecutors for the High Court though such a panel is available for the Special Court. We are therefore, satisfied that the delay of about six months caused in filing this application for - 6 - seeking Special Leave to appeal under section 378 (4) of the Code of Criminal Procedure deserves to be condoned. 7. Hence, this application is allowed. 8. We hope and believe that the NCB,Mumbai as well as NCB, Headquarters would henceforth, keep in mind the observations made by this Court, in the earlier orders and shall ensure that its Officers approach the Appellate Court within the time limit prescribed and also take due steps to have a panel of Special Public Prosecutors before the Appellate Forum as well. B.H.MARLAPALLE, J MRS.MRIDULA BHATKAR, J - 7 -