Karnataka High Court
Marcel Kuyo vs State Of Karnataka on 22 July, 2021
Equivalent citations: AIRONLINE 2021 KAR 1696
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
1
WP.No.11763/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION No.11763 OF 2021
BETWEEN:
Marcel Kuyo,
S/o kuyo,
Aged about 28 years,
R/at No.20, D Cross Road,
Dhoddabanasavadi,
Bangalore-560102.
... Petitioner
(By Sri Nishit Kumar Shetty, Advocate)
AND:
1. State of Karnataka,
Represented by SHO,
J.C.Nagar Police Station,
Bangalore,
Represented by
State Public Prosecutor,
High Court Building,
Bangalore-560001.
2. Nagaraj DR,
Police Inspector,
J.C.Nagar Police Station,
Bangalore-560046.
... Respondents
(By Sri R.D.Renukaradhya, HCGP for R1 & R2)
2
WP.No.11763/2021
This Writ Petition is filed under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C, 1973
praying to quash the extension order dated 25.06.2021
granting extention for another 60 days passed by the XXXIII
Additional City and Sessions Judge and Spl.Judge (NDPS),
Bangalore (CCH-33) in Crime No.105/2020, registered with
the J.C.Nagar Police Station, Bangalore vide Annexure-A
consequently allow the application filed by the petitioner
under 167(2) of Cr.P.C.
This Writ Petition coming on for Preliminary Hearing,
the Court made the following:
ORDER
Heard the learned counsel for the petitioner and learned HCGP for the respondent.
2. Petitioner is the sole accused in Crime No.105/2020 pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and Section 14 of Foreigners Act (for short 'the Act').
3WP.No.11763/2021
3. The petitioner has approached this Court challenging the order dated 25.06.2021 passed by the trial Court allowing the application filed by the prosecution under Section 36A(4) of the NDPS Act extending the time for completion of the investigation and rejecting the application filed by the petitioner under Section 167(2) of Cr.P.C. seeking statutory bail.
4. Brief facts of the case that could be necessary for the purpose of disposal of this petition are:
On the compliant of respondent No.2 - J.C.Nagar Police Station, Bengaluru registered FIR in Crime No.105/2020 against the petitioner herein for the offence punishable under Sections 22(c) of the NDPS Act and Section 14 of the Act. In the complaint it is averred that on receipt of a credible information that near Millers Road, one foreigner was in possession of narcotic drugs and was selling it to the customers, after 4 WP.No.11763/2021 entering, the said information in the station house diary and after obtaining permission from the Higher Officer, the complainant along with panchas and other police officers raided the spot at about 12.40 p.m. and from a distance he saw that the foreigner was selling narcotic substances to the public. Thereafter, a decoy was sent to verify the credible information and on receiving signal from the decoy, the complainant and the staff surrounded the petitioner and apprehended him and from his person they have seized MDMA totally weighing 26.50 grams and also a sum of Rs.1,200 in cash. The seized substances and cash were subjected to mahazar and thereaftewards, the petitioner was arrested and brought to the Police Station. On the basis of the complaint, FIR was registered in Crime No.105/2020.
The petitioner was produced before the Jurisdictional Magistrate on 11.12.2020 and on said day, he was remanded to the judicial custody and since then he is in judicial custody.
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5. The prosecutor has filed an application on 03.06.2021 under Section 36A(4) of the NDPS Act seeking extension of time for completion of investigation, whereas the petitioner had filed an application under Section 167(2) of Cr.P.C. on 09.06.2021. The trial Court vide order impugned has allowed the application filed by the prosecution and dismissed the application filed by the petitioner.
6. Learned counsel for the petitioner submits that the application filed by the prosecution was not supported by the report of the Public Prosecutor as mandated under the proviso to Section 36A(4) of the NDPS Act. He submits that even a copy of the application was not served on the petitioner and the petitioner was also not kept present before the trial Court at the time of passing order on the application filed by the prosecution seeking extension of time. 6 WP.No.11763/2021
7. Learned HCGP opposes the prayer made by the petitioner and contends that the report of the Investigating Officer has been submitted along with application seeking extension of time and in the said report, status of the investigation is clearly stated and for the reason that FSL report was not obtained from the Forensic Science Laboratory, the charge sheet could not be filed and only on this ground the trial Court extended the time for investigation which is legal and therefore prays that the impugned order does not call for interference.
8. I have carefully considered the rival arguments addressed on both the side and also perused the material on record.
9. The prosecution has filed an application seeking extension of time for completion of the investigation on 03.06.2021. The period of 180 days 7 WP.No.11763/2021 from the date of petitioner's first remand lapsed on 09.06.2021.
10. Perusal of the said application filed by the prosecution under Section 36A(4) of the NDPS Act which is made available to this Court goes to show that the application is not accompanied by the report of the Public Prosecutor. The proviso to Section 36A(4) of the NDPS Act would make it very clear that the application seeking extension of time has to be filed by the Prosecutor supported by the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 180 days. Unless compelling reasons are made out, the trial Court cannot casually extend the time provided by the statute to complete the investigation. The Public Prosecutor on the basis of the records submitted by the Investigating Officer is required to independently apply his mind and prepare a 8 WP.No.11763/2021 report with regard to status of the investigation and he is also required to make out a case of compelling reasons for extension of time to complete the investigation. The Hon'ble Supreme Court in the case of SANJAN KUMAR KEDIA ALIAS SANJAY KEDIA V/S INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU AND ANOTHER reported in (2009)17 SUPREME COURT CASES 631. Para No.12 of the aforesaid judgment reads as under:
"12. 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 authorities 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 9 WP.No.11763/2021 seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused."
Following the said judgment the High Court of Manipur at Imphal in the case of FARUK AHMED LASKAR V/S STATE OF MANIPUR reported in 2019 SCC ONLINE MANI 203 has held at para No.13 as follows:
13. It is not disputed that the provisions of Section 167(2) Cr.P.C. are applicable to the offence under the NDPS Act. If further extension is needed it could be possible only on compliance of the mandatory provision under Section 36(A)(4) of the Act. The report prepared by the Police was submitted by the special Public Prosecutor, which cannot be construed as report filed by the public prosecutor, as contemplated under Section 36(A)(4) of the NDPS Act. Further the report should indicate the progress of investigation which is also missing in the report. In the instant case the progress of investigation is 10 WP.No.11763/2021 also not missing in the report. In the instant case the progress of investigation is also not specifically stated with the compelling reasons, for seeing detention of the accused beyond a period of 180 days. In the aforesaid report filed by the respondent, the compelling reasons for seeking the detention of accused beyond a period of 180 days is not available, through there was notice to the accused. As the mandatory provision under section 36(A)(4) of the NDPS Act are not complied with, I am of the view that the objection raised by the respondent after 180 days without filing final report would not be justifiable. Even as per prosecution case no contraband was seized from the petitioner.
On the aforesaid facts and circumstances of the case, I am of the view that the petitioner is entitled to statutory bail.
Having regard to the pronouncement made by the Hon'ble Supreme Court, I am of the considered opinion that the application filed by the Prosecutor under Section 36A(4) of the NDPS Act seeking extension of 11 WP.No.11763/2021 time for completing the investigation on the basis of the report prepared by the Investigating Officer cannot be considered as compliance of the requirement of Section 36A(4) of the NDPS Act. The application seeking extension of time is required to be supported by the report of Public Prosecutor and not the Investigating Officer. Therefore, the trial Court has erred in allowing the application filed by the Prosecution seeking extension of time. Further the High Court of Punjab and Hariyana in the case of SABDEEP KUMAR V/S STATE OF PUNJAB reported in 2016 SCC ONLINE P & H 1657 and in the case of GURPREET SINGH @ GOPI V/S STATE OF PUNJAB, CRM.NO.M-32170(O & M), DATED 11.01.2016 has held that non receipt of the Chemical Examiner report cannot be considered as a ground for extension of time for completion of investigation under Section 36A(4) of the NDPS Act and it has been observed that compelling reasons are to be made out by the Investigating Agency. Since the trial Court has 12 WP.No.11763/2021 erroneously extended the time for completion of the investigation under Section 36A(4) of the NDPS Act. Based on a application filed by Prosecutor without his report as required under the order passed by the trial Court extending time to investigate the same is unsustainable and resultantly since the chagresheet is not filed within the prescribed period the indefeasible right for statutory bail accrues to the benefit of the petitioner. It is not in dispute that the charge sheet has not been filed on completion of 180 days from the date of first remand of the accused. Under the circumstances, since this Court has held that extension of time for completion of the investigation granted by the trial Court is bad in law the petitioner's application under Section 167(2) of Cr.P.C. is required to be allowed.
Accordingly the petition is allowed. Order dated 25.06.2021 passed by the Court of XXXIII Additional 13 WP.No.11763/2021 City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru on the application by Prosecution under Section 36A(4) of the NDPS Act seeking extension of time for completion of the investigation is rejected and the application filed by the petitioner seeking statutory bail under Section 167(2) of Cr.P.C. is allowed, subject to the following conditions:
1. The petitioner shall execute a personal bond for a sum of Rs.2,00,000/-
(Rupees Two Lakh only) with two sureties for the likesum to the satisfaction of the concerned Court.
2. The petitioner shall co-operate with the Investigating Officer and appear before the Investigating Officer on every alternative Sunday between 10.00 a.m. to 4.00 p.m. till the investigation is completed and the charge sheet is filed.
3. The petitioner shall appear before the trial Court on every dates of hearing 14 WP.No.11763/2021 unless the trial Court dispenses his presence for valid reasons.
4. The petitioner shall not tamper with the prosecution witness either directly or indirectly.
Sd/-
JUDGE ssb