Gauhati High Court
Jayanandan Prasad & Anr vs The State Of Assam on 10 January, 2012
IN THE GAUHATI HIGH COURT
(High Court of Assam,Nagaland,Meghalaya,Manipur,Tripura,
Mizoram and Arunachal Pradesh )
BAIL APPLICATION No. 2020 of 2011
1.Shri Jayanandan Prasad,
S/O Shri Jagadish Yadav,
R/O-Vill- Jiktawara,
P.S.-Nawada,
District-Nawada, Bihar.
2. Shri Prabin Kr. Pandey,
S/O Shri Siv Balak Panday,
R/O-Vill- Kadilpur,
P.S.-Akangasarai,
District-Nalanda, Bihar
.................Petitioners
Versus
The State of Assam
............... Respondent
PRESENT
HON'BLE MR. JUSTICE B. D. AGARWAL
For the petitioners ... Mr. Mr. BK Mahajan, TH Hazarika,
A.Choudhury, Mr. L.P.Nath,
Advocates
For the Respondent ... Mr. K Munir, learned Addl.Public
Prosecutor.
Date of Order ... 10.01.2012
Bail Application No. 2020 of 2011 Page 1 of 10
ORDER( Oral)
B. D. Agarwal, J
1. This application under section 439 of the Code of Criminal Procedure, 1973 has been filed by two accused persons, praying for releasing them on bail, who have been arrested in connection with Golakganj Police Station Case No.43 of 2011 under Section 420/468 of the Indian Penal Code read with Section 20(b)/ 22 of the NDPS Act, 1985. The bail prayer has been basically made on the ground of their completing statutory period of pre-arrest bail.
2. Heard Mr. BK Mahajan, learned senior counsel for the petitioner. The State was represented by Mr. K Munir, learned Additional Public Prosecutor. I have also perused the FIR, Arrest memo and other documents annexed with the bail application. The learned Addl.P.P. also produced the relevant case diary to show that commercial quantity of psychotropic substances have been recovered from the possession of the accused persons. It may also be mentioned here that the IPC Provisions have been incorporated in the police case on the ground that the accused persons (drivers) were found transporting large quantity of prohibited medicines on the basis of fake and false challans. Few fake number plates were also recovered from the truck.
3. The admitted fact is that both the accused persons are the drivers. On 04.02.2011, their truck bearing No. NL-02 G-9265 was Bail Application No. 2020 of 2011 Page 2 of 10 subjected to routine verification of the documents at check gate at Chagalia (inter-state check gate) and after physical verification of the truck, it was found that the accused persons were transporting large quantity of medicines without proper documents. Accordingly, they were taken into custody and forwarded to the Court on 5.2.2011. Since then, both the petitioners are in judicial custody.
4. Section 36 A of the NDPS- Act. prescribes various periods for which an accused can be detained in judicial custody. Section 36 C of the Act lays down that all the provisions of the Code of Criminal Procedure shall apply to the offences under NDPS- Act, including the provisions as to bails and bonds. However, Section 36 A is an overriding provision since it begins with non-obstante clause. Section 36 A(4) of the Act stipulates that if the offence is punishable under section 19 or 24 or 27 A or for offences involving " commercial quantity" , the period of statutory detention shall extend to 180 days instead of 90 days, as provided under section 167(2) of the Code of Criminal Procedure. This period can further be extended to one year on the report of the Public Prosecutor. For ready reference Sub-Sec. (4) to 36 A of the NDPS Act is extracted below:
"Section 36 -A. Offences triable by Special Courts- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a)-(d) *** *** *** (2)-(3) *** *** *** (4) In respect of persons accused of an offence punishable under section 19 or Section 24 or Section 27-A Or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 Bail Application No. 2020 of 2011 Page 3 of 10 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."
5. As noted earlier , both the accused persons were produced in the Court on 5.2.2011 and remanded to custody on the same day. Besides this, there is also no dispute that the seized psychotropic substance falls under "commercial quantity" category for which rigorous imprisonment for a term of not less than 10 years, which may also extend to 20 years with fine, has been provided under the law. Hence, the primary offence is squarely covered by 36A (4) of the NDPS, Act, which authorises the Court to detain an accused for a period of 180 days during investigation. Accordingly, the trial Court was legally competent to remand the accused to judicial custody till 2.8.2011. As noted earlier, under proviso to Sub section (4) of Sec.36 A, the detention period can be extended to one year also, albeit under certain circumstances and on fulfilment of certain conditions.
6. In the case of Sanjay Kumar Kedia -vs- Intelligence Officer, Narcotic Control Bureau: (2009) 17 SCC 631, the Hon'ble Supreme Court was called upon to examine the pre- conditions required for extension of statutory period of detention. After adverting to relevant law, the Apex Court has culled out the pre-condition of extension of detention period in the following ways:
Bail Application No. 2020 of 2011 Page 4 of 10" The maximum period of 90 days fixed under Section 167(2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorises a yet further period of detention which may in total go up to one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are:
(1) a report of the Public Prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused.".
7. From the language of the relevant law as well as from the judgment of the Apex Court, it is clear that the report of a Public Prosecutor is mandatory for the Court to entertain an application for extension of detention period up to one year. In the aforesaid judgment of Sanjay Kr.Kedia, the Hon'ble Supreme Court has observed that this condition is identical and pari-materia to clause (bb) of Sub Section (4) to Section 20 of the TADA. The said provisions of TADA came into consideration before the Apex Court in the case of Hitendra Vishnu Thakur -vs- State of Maharashtra; (2001) 5 SCC 453. The view taken in the said case was also approved by the Apex Court in Sanjay Kumar Kedia(supra). In my considered opinion, the legal principle, laid down by the Apex Court with regard to relevancy of the report of a Public prosecutor for extension of time under proviso to 36 A (4) of the NDPS Act in the case of Hitesh Vishnu (supra) are necessary to be looked into, which is as below;
Bail Application No. 2020 of 2011 Page 5 of 10" ............A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The Public Prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the Public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The Public Prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the fact of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression 'on the report of the Public Prosecutor indicating the progress of the investigation and the Bail Application No. 2020 of 2011 Page 6 of 10 specific reasons for the detention of the accused beyond the said period' as occurring in clause (bb) in Sub-section (2) of Section 167 as amended by Section 20(4) 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). The request of an investigating officer for extension of time is no substitute for the report of the Public Prosecutor."
8. The record of learned Special Judge contains the application of the Investigating Officer dated 3.9.2011 for extension of time of investigation. Though this application was forwarded to the Court through Prosecuting Inspector, Dhubri Court, no separate report was submitted by the Public prosecutor. The prayer for extension of time was allowed vide order dated 28.9.2011. The said order is totally silent about any report from the Public Prosecutor. Hence, rejection of the bail prayer by the learned Special judge on the ground that detention period of the accused persons has been extended for one year from 2.8.2011 is not sustainable in law.
9. Learned counsel for the petitioners further contended that the statutory period of detention was extended to one year without any notice to the accused persons. In the case of Sanjay Kr. Kedia(supra), the Hon'ble Supreme court has held that notice to the accused is also one of the mandatory condition to invoke proviso to Section 36 A (4) of the NDPS Act.However, in the case Bail Application No. 2020 of 2011 Page 7 of 10 before me the I.O's prayer for extension of statutory period was allowed without any notice to the accused persons
10. The other ground to assail the detention of the accused persons in custody is that any application on the provisio to Section 36 A (4) of the NDPS, Act for extension of detention period must be filed before the expiry of 180 days of judicial custody. The learned counsel for the petitioners submitted that once the statutory period of 180 days is over and if there is no application by the I.O., supported by a report of the Public prosecution, an accused is entitled to be released on bail. According to the learned counsel, the period of 180 days expired on 2.8.2011. Hence, the prayer for extension of the detention period must have been filed on or before 2.8.2011. However, in the instant case, prayer was made nearly after one month i.e.on 3.9.2011. According to the learned counsel, since the application was filed after the expiry of 180 days of custody, the I.O.'s prayer was unacceptable since the accused persons earned an indefeasible right to be released on bail under default clause.
11. In support of the aforesaid submission, the learned counsel referred to the Judgment of the Hon'ble Supreme Court, given in the case of Uday Mohanlal Acharya -vs- State of Maharashtra:
(AIR 2001 SC 1910). In the cited judgment, the majority view of the Hon'ble judges of the Apex Court is that if the charge sheet is not filed within statutory period of detention, provided under section 167(2) of the Code of Criminal Procedure, the accused obtains an indefeasible right to be released on bail. In the said case, the accused surrendered in the Court on 17.6.2000 and filed bail application after the expiry of statutory period. However, bail prayer was rejected by the Magistrate. Thereafter, the matter was carried to the High Court. Although the Hon'ble Bombay High Court held Bail Application No. 2020 of 2011 Page 8 of 10 that the accused was entitled to be released on bail on expiry of the period specified in 167(2) Cr.P.C.,the liberty of the bail was withheld since charge sheet was filed during the pendency of the bail application in the High Court. Under this, circumstance also, the Apex Court has held that since the accused filed his bail application before the filing of the challan, he was entitled to be released on bail.
12. In the case before me, the factual position is little better. Although the accused persons are in custody since last eleven months, no charge sheet has yet been filed. In the case of Union of India-vs- Thamisharasi :(1995) 4 SCC 190 ,Hon'ble Supreme Court has held that provisions of application of section 167(2) of the CrPC has not been excluded under NDPS act. However after the amendment of the law, subject to overriding effect of special procedure of arrest, seizure, period of detention etc provided under NDPS act, the overall spirit of CrPC would be applicable in the investigation and trial of narcotic offences. Hence, the legal opinion regarding right of an accused to be released on bail if the charge sheet is not submitted within statutory period of detention, as laid down in the case of Uday Mohanlal Acharya(supra) would be applicable for release of accused persons under NDPS act on default ground.
13. In view of the legal position laid down by the Hon'ble Supreme Court and discussed in this order, I am constrained to accept the bail prayer. Consequently, the learned Special Judge Dhubri is directed to release the accused persons on furnishing personal bonds of Rs. 40,000 /- ( Forty Thousand) with 2(two) sureties of like amount to his satisfaction.
Bail Application No. 2020 of 2011 Page 9 of 1014. The registry is directed to forward a copy of this order to the Director General of Police, Assam, Guwahati for information. He is further directed to circulate this Order to all the police stations with an advisory note to the investigating officers to file application under section 36A(4) of the NDPS, Act 1985 before the expiry of the statutory period of detention and accompanied by a report of the Public Prosecutor in support of such application in future.
15. Return the LCR to the court of Special Judge, Dhubri with a copy of this order.
JUDGE nivedita Bail Application No. 2020 of 2011 Page 10 of 10