1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO. 31 OF 2011 Mr. Ajay Patel, Aged 32 years, Indian National, H.No.Nil, Mazal Vaddo, Anjuna, Bardez, Goa Presently lodged at Sada Sub Jail, Vasco-da-gama .. Applicant Versus State (As represented by Officer in charge Anjuna Police Station, Goa) .. Respondent Mr. Peter D'Souza, Advocate for the applicant. Mr. C. A. Ferriera, Public Prosecutor for the respondent . Coram :- A. P. Lavande, J. Reserved on : - 10 th March, 2011. Pronounced on :- 17 th March, 2011. ORDER : Heard Mr. D'Souza, learned Counsel for the applicant and Mr. Ferreira, learned Public Prosecutor for the respondent. 2. This is an application for bail filed by the applicant after his application for bail has been dismissed by the Special Judge, N.D.P.S. Court, Mapusa by order dated 31st December, 2010. 2 3. On 18th January, 2010, the accused was arrested for alleged possession of 3.88 grams of Cocaine, 0.5 grams of LSD, 16.45 Grams of MDMA. On 16th July, 2010 since the period of 180 days was to expire, the application seeking extension of time to file chargesheet was filed, which was granted. Thereafter on 15th September, 2010, another application seeking extension of time was filed, which was also granted. There is no dispute that both these orders were passed without giving opportunity of being heard to the applicant. Thereafter, on 10th November, 2010, the application under Section 36(A)(4) of The Narcotic Drugs and Psychotropic Substances Act, 1985 ('The Act' for short). seeking extension of time was filed by the learned Public Prosecutor. On the same day, the learned Special Judge passed the following order : “Perused the application and heard the accused. The accused has nothing to say. I am satisfied that the investigation cannot be completed within the time extended. Time to file chargesheet is, therefore, extended by another 60 days from 14th November, 2010.” 4. Indisputably, on 18th January, 2011, chargesheet has been filed against the applicant. 3 5. Mr. D'Souza, learned Counsel appearing for the applicant submitted that since the applicant was not heard by the learned Special Judge while passing the orders dated 16th July, 2010 and 15th September, 2010 granting extension of time, his further detention was illegal. He further submitted that although the order dated 10th November, 2010 purports to state that the accused had nothing to say. The applicant/ accused was not put on notice by the learned Special Judge that the application seeking extension of time was under consideration and, therefore, the said order also is illegal and is liable to be set aside. He, therefore, submitted that the detention of the applicant beyond the period of 180 days being in violation of law, the applicant is entitled to be released on bail. Mr. D'Souza further submitted that according to the prosecution itself the contraband seized from the applicant was tested on the spot and as such, there was no question of seeking extension to file chargesheet on the ground that CA report was not received by the prosecution. According to Mr. D'Souza, the impugned order dated 10th November, 2010 discloses total non-application of mind by the Public Prosecutor as well as the learned Special Judge and, therefore, the applicant is entitled to be released on bail notwithstanding the fact that subsequently 4 chargesheet has been filed. In support of his submissions Mr. D'Souza, relied upon the following judgments : (i) Bhagaban Pradhan and others v. Jayaram Mohanty and others; 1995 CRI. L. J. 607. (ii) Babubhai Bhimjibhai V. The District Magistrate, Godhra and others; 1990 Cri. L. J. 1959. (iii) Ateef Nasir Mulla V. State of Maharashtra; CDJ 2005 SC 623. (iv) Rafael Palafox Garcia V. The Union of India and another; CDJ 2008 BHC 1489. (v) Gopal Prasad Kalowar V. State of Assam; 2001 Cri. L.J. 2678. 6. Per contra, Mr. Ferreira, learned Public Prosecutor for the respondent submitted that although the applicant was not heard by the learned Special Judge at the time of passing of the orders dated 16th July, 2010 and 15th September, 2010, the applicant was given opportunity of being heard by the learned Special Judge while passing the order dated 10th November, 2010 and hearing given to the applicant was in compliance with the judgment of the Apex Court in the case of Sanjay Dutt Vs. State through CBI, Bombay ; 1994 (5) SCC 402. According to Mr. Ferreira, the ground urged before this Court were not urged before the learned Special Judge. Mr. Ferreira further submitted that 5 the applicant having been heard before passing of the order dated 10th November, 2010, mere fact that he was not heard before granting extension by orders dated 16th July, 2010 and 15th September, 2010 would not render the further detention of the applicant illegal and having regard to the fact that the chargesheet has been already filed, the applicant is not entitled to be released on bail on the ground that he was not heard before passing of the orders dated 16th July, 2010 and 15th September, 2010. According to Mr. Ferreira, right to get bail for not filing chargesheet is not available after the chargesheet has been filed by the prosecution. Mr. Ferreira further submitted that the prosecution has complied with Section 36(A)(4) of The Act. Mr. Ferreira, placed reliance upon the judgment of the Delhi High Court in the case of Narcotics Control Bureau Vs. Ashok Mittal and another dated 4 th January, 2011 in Criminal Miscellaneous Application no.435/2009. 7. In rejoinder, Mr. D'Souza relied upon the judgment of the Apex Court in the case of Uday Mohanlal Acharya V. State of Maharashtra; CDJ 2001 SC 230 and submitted that once challan was not filed within the period stipulated under Section 167(2) of Cr.P.C., the applicant / accused has indefeasible right to get bail and subsequent 6 filing of chargesheet would not extinguish the right of the accused to get bail. 8. I have carefully considered the rival submissions, perused the record and judgments relied upon. 9. In the case of Sanjay Dutt (supra), 5 Judges Bench of the Apex Court after considering several judgments of the Apex Court concluded thus : 53(2)(a). Section 20(4)(bb)of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. 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 7 considered, is alone sufficient for the purpose. 53(2)(b). The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. 10. It is pertinent to note that Section 20(4)(bb) of TADA Act and Section 36(A)(4) of The Act. are in pari materia. While interpreting Section 20(4)(bb), the Apex 8 Court has held that the requirement of notice to the accused before granting extension for completing investigation is not a written notice to the accused giving reasons therein and production of the accused at that time in the Court informing him that question of extension of period for completing investigation being considered, is alone sufficient for the purpose. In my considered opinion, the order dated 10th November, 2010 is in compliance with Section 36(A)(4) of The Act. No doubt the learned Special Judge has not stated in so many words that the accused / applicant was heard on the question of extension of time, the fact remains that the said order discloses that the accused/ applicant was heard and had nothing to say. It is, therefore, to be assumed that the learned Special Judge has given opportunity of being heard to the accused on the question of extension of time to file chargesheet. Moreover, in the application filed before this Court, the applicant has not stated that he was not heard on the aspect of the extension of time to file chargesheet. In paragraph nos.2 and 3 of the application, the applicant has stated that the respondent moved an application seeking extension of time to file chargesheet and order was passed by the Special Judge granting extension to complete investigation and file chargesheet against the applicant. Therefore, in my considered view, the order passed by the 9 learned Special Judge is in compliance with Section 36(A)(4) of The Act. I do not find any merit in the submission of Mr. D'Souza that there was non-application of mind either on the part of learned Public Prosecutor while seeking extension of time or on the part of the learned Special Judge while passing the order dated 10th November, 2010. 11. Thus, the applicant was given opportunity of being heard before passing of the order dated 10th November, 2010 granting time to file the chargesheet. Merely because the applicant was not heard before passing the orders dated 16th July, 2010 and 15th September, 2010, his detention from November, 2010 does not become illegal. This being the legal position, in my considered view, the applicant at this stage, after filing of the chargesheet by the prosecution, is not entitled to seek bail on the ground of non- compliance of Section 36(A)(4) of The Act. 12. In so far as the judgments relied upon by Mr. D'Souza, learned Counsel for the applicant, none of them advances the case of the applicant. 13. In the case of Babu Bhai Bhimji (supra), the Gujrat High Court dealing with Prevention of Black 10 Marketing and Maintenance of Supplies of Essential Commodities Act has held that approval by the State Government should be during the lifetime of the detention order. The said judgment has absolutely no reliance in the present case. 14. In the case of Gopal Kalowar (supra), the learned Single Judge of Gauhati High Court has held that when the chargesheet is submitted after 6 months from the arrest of the accused and no prayer for extension of time is made beyond six months, the trial is vitiated and the accused is entitled to acquittal. The facts in the said case are entirely different and as such do not advance the case of the applicant. 15. In the case of Bhagaban Pradhan (supra), the Orissa High Court dealing with the scope of Section 116 of Cr.P.C. held that period of six months limitation starts from either when opposite party appears and shows cause or his plea is taken. The said judgment also does not help the applicant. 16. In the case of Rafael Gracia (supra), the learned Single Judge was dealing with controlled substance and not 11 narcotic or psychotropic substances and, therefore, the said judgment also would not advance the case of the applicant. 17. In the case of Uday Mohanlal Acharya (supra), the Apex Curt has held that the accused gets indefeasible right to get bail if the application for bail is filed before the chargesheet is filed after the period stipulated in Section 167(2) of Cr.P.C. and such right does not get extinguished by subsequent filing of the chargesheet. The ratio of the said judgment, in view of the factual position in the present case, does not advance the case of the applicant. 18. In the case of Ateef Mulla (supra), which was a case under Prevention Of Terrorism Act, 2002, the applicant was present in the Court along with Advocate when application seeking extension of time to complete investigation was filed. Opportunity was given to file reply and thereafter, the matter was heard on the same day and extension was granted. The Apex Court held that no error was committed while granting extension of time. Thus, the said judgment also does not advance the case of the applicant. 19. In view of the above discussion, I am of the 12 considered opinion that the applicant is not entitled to be released on bail. Hence, the application is dismissed. A. P. LAVANDE, J. SMA