… 1 … IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO.263 OF 2010 Mr. David Driham @ Dudu, Major, Israeli National, Passport No.9707090, R/o. H.No.789, Gaonkar wado, Anjuna, Bardez, Goa. Presently lodged at Judicial Lock Up, Sub Jail Sada, Vasco, Goa. .. Applicant Vs. State of Goa (as represented by officer in charge ANC Police Station, Goa.) .. Respondent Mr. J. P. D'Souza, Advocate for the applicant. Mr. C. A. Ferreira, Public Prosecutor for the respondent. CORAM :- A. P. LAVANDE, J. RESERVED ON : 14 th January, 2011. PRONOUNCED ON: 18 th January, 2011. ORDER : Heard Mr. D' Souza, learned Counsel for the applicant and Mr. Ferreira, learned Public Prosecutor for the respondent. 2. The applicant was arrested on 21st February, 2010 by the staff of Anti Narcotic Cell on the allegation that he was found in possession of 144 ecstasy tablets weighing 55 … 2 … grams, heroine powder weighing 5 grams, cocaine weighing 6.5 grams, liquid LSD 7.30 grams and 1.165 kilograms of charas. An offence punishable under Section 20(b)(ii)(c), 21(b) and 22(c) of N. D. P. S. Act, 1985 ('The Act' for short) was registered against the applicant. Since the period of 180 days in filing the chargesheet against the applicant was to expire on 28th August, 2010, at the request of Public Prosecutor the time to file chargesheet was extended for 60 days, which was to expire on 18th October, 2010. 3. On 14th October, 2010, an application was filed by learned Public Prosecutor seeking extension of time by 60 days to file chargesheet against the applicant in terms of Section 36(A)(4) of the Act. The learned Special Judge passed an order “notifying the accused”. On the same day, he granted extension for a period of 60 days for filing the chargesheet. Indisputably, the applicant was not heard before the order was passed by the Special Judge granting extension of time of 60 days. 4. On 26th October, 2010, the applicant filed an application for bail before the Special Judge on the ground that no chargesheet was filed till that date and also on the … 3 … ground that the extension of time was granted on a false representation made by the respondent that the report of analysis of the substance sent to Directorate of Foods and Drugs Administration, Panaji ('DFDA' for short) was not received prior to filing of the application seeking extension of time. Indisputably, the report from DFDA, Panaji in so far as charas alleged to have been seized from the applicant is concerned was received prior to 2nd July 2010. 5. The application for bail was opposed by the respondent. By order dated 1st November, 2010, the learned Special Judge dismissed the application for bail. The learned Judge accepted the version of the prosecution that Public Prosecutor did not mention about the receipt of the report from DFDA, Panaji in respect of the charas due to oversight. 6. Mr. D'Souza, learned Counsel appearing for the applicant submitted that the applicant was not heard before granting extension which is clearly in breach of Section 36(A) (4)of the Act and, therefore, the order granting extension of time to file chargesheet is patently unsustainable in law and consequently, the applicant is entitled to be released on bail. He further submitted that the learned Public Prosecutor in … 4 … his application dated 14th October, 2010 which was filed seeking extension of time to file chargesheet, had made patently an incorrect statement that no report was received from DFDA in respect of the charas and the prosecuting agency could have very well filed chargesheet on the basis of the said report and, therefore, the extension granted by the learned Special Judge is patently illegal. Learned Counsel further submitted that under the Act, the Public Prosecutor has to discharge the statutory duty in terms of Section 36(A) (4) of the Act while seeking extension of time to file chargesheet and he has to independently apply his mind to the case and not act as a mouthpiece of investigating officer. He further submitted that the investigating agency having withheld the important fact from the Special Judge at the time of seeking extension of time, the order dated 14th October, 2010 passed by the Special Judge granting extension is liable to set aside and consequently, the applicant is liable to be released on bail notwithstanding the fact that chargesheet has been filed on 13th December, 2010. According to learned Counsel, the order granting extension of time discloses total non-application of mind and as such, the order granting extension of time is liable to be set aside and consequently the applicant is entitled to bail for not filing the … 5 … chargesheet within the extended period granted by the Special Judge, which expired on 18th October, 2010. In support of his submissions, Mr. D'Souza placed reliance upon the following judgments : (i) Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau and Anr; 2010 All MR (Cri)1310 (S.C.). (ii) Hitendra Vishnu Thakur Vs. State of Maharashtra and Ors.; 1994 SCC (Cri) 1087. (iii) Order dated 7 th June 2010 passed by this Court in Criminal Application (Bail) no.123/2010 and iv) Order dated 21 st December, 2010 passed by this Court in Criminal Writ Petition No.83/2010. 7. Per contra, Mr. Ferreira, learned Public Prosecutor for the respondent fairly conceded that the applicant was not heard before granting extension. However, learned Public Prosecutor submitted that the applicant is not entitled to be released on bail on this count alone and by following the ratio of the order passed by this Court in Criminal Writ Petition No.83/2010, the matter deserves to be remanded to the learned Special Judge to decide the application seeking extension of time to file chargesheet afresh notwithstanding the filing of the chargesheet by the respondent on 13th December, 2010. He further submitted … 6 … that the applicant having not challenged the order granting extension, is not entitled to seek bail on the ground that chargesheet has not been filed within the extended period granted by the learned Special Judge. Learned Public Prosecutor further submitted that in the application for bail before the learned Special Judge, the applicant had not pleaded that he was not heard by the learned Special Judge before granting extension of time to file chargesheet by order dated 14th October, 2010. Learned Public Prosecutor further submitted that it was on account of inadvertence that in the application seeking extension of time, it was mentioned that the report of DFDA, Panaji was not received as has rightly been held by the learned Special Judge. He further submitted that even if the detention of the applicant pursuant to the order dated 14th October, 2010 is held to be sustainable, his further detention is not vitiated. In support of his submissions, learned Public Prosecutor has relied upon the following judgments : (i) Daji Govind Kamble Vs. State of Maharashtra; 1990 Cri. L..J.219. (ii) Kana Vs. The State; 1980 Cri.L.J. 344. 8. I have considered the rival submissions and … 7 … perused the record and the judgments relied upon. 9. As stated above, there is no dispute that although the learned Special Judge passed an order 'to notify the accused', on the application filed by learned Public Prosecutor, the applicant was neither produced nor heard before the learned Special Judge before granting extension of time by the learned Special Judge. Therefore, applying the ratio in the case of Sadanand Chimulkar (supra) with which I respectfully agree, the order granting extension of time without hearing the applicant / accused is liable to be set aside in as much as the applicant had right to be heard by the learned Special Judge at the time of consideration of the application filed by learned Public Prosecutor seeking extension of time. 10. In so far as the argument of Mr. D'Souza that since the learned Public Prosecutor in his application had made an incorrect statement that report from DFDA, Panaji is not received in so far as charas alleged to have been recovered from the applicant, the order granting extension of time is liable to be set aside and consequently, the applicant is bound to be released on bail by this Court is concerned, I … 8 … am unable to accept the same for the reasons stated hereinafter. 11. No doubt when the application under Section 36(A)(4) is filed by the learned Public Prosecutor seeking extension of time to file the chargesheet, the accused is entitled to be heard before passing any orders thereon. The learned Special Judge dealing with such an application has to apply his mind and consider the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the period of 180 days. As has been held by the Apex Court in the case of Hitendra Thakur (supra), while dealing with similar provision in Tada Act, the Public Prosecutor is expected to independently apply his mind to the request of investigating agency before submitting the report to the Court for extension of time with a view to enable the investigating agency to complete the investigation. The Public Prosecutor is not merely a post office or forwarding agency and is free to disagree with the reasons given by the investigating officer for seeking extension of time. The contents of the report to be submitted by the Public Prosecutor, after proper application of mind, are designed to … 9 … assist to Court to independently decide whether or not extension should be granted in a given case and where the Court declines to grant such an extension, right to be released on bail on account of default of the prosecution becomes indefeasible. 12. In the present case, perusal of the order passed by the Special Judge while refusing to grant bail discloses that the learned Special Judge accepted that it was on account of oversight that it was mentioned that report from DFDA, Panaji was not received. Learned Judge has not considered the legal effect of the non-mentioning of such a fact of receipt of CA report from DFDA, Panaji while dealing with the application for bail. The learned Special Judge has not considered whether non-mentioning of the receipt of the report of CA from DFDA, Panaji in the report submitted by the Public Prosecutor would be a factor which should weigh in rejecting the prayer for extension of time. 13. Since it is the case of the applicant that he is entitled to bail since the order granting extension of time is vitiated and since the question is whether the applicant is entitled to bail for non-filing of the chargesheet within the … 10 … extended time, depends upon the validity of the order dated 14th October, 2010 passed by the learned Special Judge, in my considered opinion, it would be just and proper to quash and set aside the said order and direct the learned Special Judge to decide the application afresh notwithstanding the fact that in the meantime the chargesheet has already been filed. 14. In so far as the case of Sanjay Kumar Kedia (supra) relied upon by Mr. D'Souza is concerned, the same would not advance the case of the applicant having regard to the factual matrix in the present case. In the said case, the Apex Court held that both applications filed on behalf of the prosecution seeking extension of time to file chargesheet did not comply with Section 36(A)(4), the first application having been filed by the investigating officer and the second application did not satisfy the tests laid down in the case of Hitendra Thakur (supra). In the second application, it was simply stated that the prosecution was not in a position to submit the complaint and hence, prayed for further time for the same. In the present case, the Public Prosecutor himself had filed an application seeking extension along with the letter of request received from the investigating officer. … 11 … Therefore, the ratio laid down in the case of Sanjay Kumar Kedia (supra) would not advance the case of the applicant. 15. In Criminal Writ Petition no.83/2010, the applicant who was arrested on the allegation of having committed the offence punishable under Section 21(b) and 22(c) of the Act challenged the orders granting extension of time and they were set aside on the ground that the applicant / accused was required to be heard in terms of Section 36(A) (4), was not heard. In the case of Antonios Kaminis, the learned Single Judge granted bail to the applicant since the application seeking extension of time to file the complaint, was filed by the investigating officer and not by the public prosecutor. The ratio of the said judgment also would not advance the case of the applicant. 16. In so far as the judgments relied upon by Mr. Ferreira, learned Public Prosecutor are concerned, the issues arising therein are entirely different and as such, I do not deem it necessary to refer to the same. 17. In view of the above discussion, I am of the considered opinion that the order dated 14th October, 2010 … 12 … passed by the learned Special Judge granting extension of time to file chargesheet deserves to be set aside and is, accordingly, set aside. However, the applicant shall continue to be in detention till the order is passed by the learned Special Judge. The learned Special Judge shall decide the application dated 14th October, 2010 seeking extension of time after giving an opportunity of being heard to the applicant, who shall be heard either personally or through his Advocate. Although the chargesheet has been already filed in the matter on 13th December, 2010, considering the fact that the extension of time was granted to file chargesheet by order dated 14th October, 2010 without hearing the accused and the order is being set aside, in the interest of justice, the learned Special Judge to decide the application afresh in the light of the findings given above notwithstanding the fact that chargesheet has been already filed in the meantime. The applicant shall be ordered to be produced before the learned Special Judge on the date fixed for hearing of the application. The learned Special Judge shall consider the effect of the statement made in the application dated 14th October 2010 filed by the Public Prosecutor that no report from the DFDA, Panaji was received and pass an appropriate order after considering all the contentions of the applicant and after … 13 … hearing the prosecution. The learned Special Judge will pass the order on the said application dated 14th October, 2010 without being influenced by the observations made and findings given in the order dated 14th October, 2010 granting extension of time as well as in the order dated 1st November, 2010 rejecting Special Bail Application No.68/2010 filed by the applicant. In the event the learned Special Judge holds that the order granting extension was patently illegal, the learned Special Judge shall pass the order granting bail releasing the applicant on bail on such terms and conditions as he deems fit and proper. 18. Considering that the applicant has been in custody from 21st February, 2010, the learned Special Judge shall decide the application dated 14th October, 2010 expeditiously and in any case within a period of two weeks from the date of the receipt of the copy of this order. A. P. LAVANDE, J. SMA