JUDGMENT 1. The present case being C.R.M 5870 of 2010 relates to the prayer for bail of the petitioner/accused person. 2. The backdrop of the present application may briefly be summed up as follows: - 3. The petitioner was arrested in connection with C.R (NDPS) Case No. 30 of 2009 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 arising out of 04/CL/NDPS/DRI/SLG/2009-10 dated 14th October, 2009, now pending before the learned Judge, Special Court, N.D.P.S Act. He was produced before the said learned Court on 5th October, 2009 with a prayer for his remand to judicial Custody. The prosecution alleged that on the basis of an intelligence, the DRI Officers attached to the Siliguri Regional Unit intercepted a Tata Truck standing in front of a line hotel. At the time of interception of the vehicle the officers found that there were three persons inside the said truck and the petitioner was one of them. On being asked, all the said three persons stated that the truck was loaded with raw cow and buffalo hide and was proceeding towards Kolkata for unloading. On removing the tarpaulin sheet of the carrier truck, it could be seen that raw hides of cow and buffalo in partially rotten condition was loaded. After unloading the same, it could be found that there were some bricks. After removal of the bricks, huge number of coloured plastics were seen. 280 of such plastic packets were found packed with Ganja weighing 4961.88 kgs. 3. The petitioner prayed for bail on repeated occasions but it was not allowed. He approached this court with an application under Section 439 of Cr.PC but the Division Bench of this court with one of us as its member (S.P Talukdar, J.) by order dated 1st of December, 2009 rejected such prayer for bail. 4. Grievance, as ventilated, may briefly be stated as follows :- On 9th of April, 2010 the Investigating Agency filed an application before the learned Judge praying for time to submit written complaint till 30th June, 2010. Learned court by order dated 12th of April, 2010 allowed the said prayer. The period of 180 days of custodial detention expired on 12th April, 2010. Learned Special Court (Narcotic Drugs and Psychotropic Substances Act) without assigning any reason by order dated 12th April, 2010 remanded the petitioner to further custody. Learned court by order dated 12th of April, 2010 allowed the said prayer. The period of 180 days of custodial detention expired on 12th April, 2010. Learned Special Court (Narcotic Drugs and Psychotropic Substances Act) without assigning any reason by order dated 12th April, 2010 remanded the petitioner to further custody. Such order directing further detention of the petitioner beyond the period of 180 days is in clear violation of Section 36A(4) of the N.D.P.S Act. 5. The petitioner approached the learned Special Court with an application for bail which was rejected by order dated 13th April, 2010. The investigating agency has not submitted any report in final form as yet. There is no chance of early commencement of trial. In the circumstance, the petitioner has once again knocked the doors of this court with a prayer for bail. 6. Mr. Sekhar Bose appearing as learned counsel for the petitioner first invited attention of the court to Section 36A(4) of the N.D.P.S Act, 1985. The same reads as under : “Section 36A.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) . . . . .. . . (b) . . . . . . . (c) . . . . . . . (d) . . . . . . . (2) .. . .. . . . (3) . . . . . . . (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 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 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.” 7. Mr. Bose then submitted that so far the present case is concerned there had been no occasion for the Public Prosecutor to approach the learned Special Court seeking extension of time for filing report in final form. Mr. Bose then submitted that so far the present case is concerned there had been no occasion for the Public Prosecutor to approach the learned Special Court seeking extension of time for filing report in final form. He submitted that the investigating agency submitted an application on 8th of April, 2010 seeking such extension and there is nothing to indicate that the learned Public Prosecutor had any role to play in that regard. In this context attention of the court was invited to the copy of the order dated 12th April, 2010 being Annexure P-2 to the application. Mr. Bose submitted that on the said that i.e. on 12th April, 2010, an application for bail was filed on behalf of the co-accused Md. Jainul Haque Laskar. It was urged that since he had been in detention since 15th October, 2009 and prosecution failed to file complaint within 180 days, he was entitled to be released on bail in terms of Section 36A(4) of the N.D.P.S Act. 8. Learned court, however, took into consideration the fact that on 8th April, 2010 the investigating agency approached the learned court with an application seeking extension of time. Due to non-availability of regular Presiding Officer, the said application was not dealt with on that date. There was no scope for dealing with that application by any other court. It was naturally taken up on the first possible date i.e. on 12th April, 2010 and in response to the said application, time was extended till 30th June, 2010. 9. A bail application was, however, filed on behalf of the present petitioner on 13th April, 2010 and learned court rejected the prayer on the ground that time for completion of investigation and filing of complaint had since been extended till 30th June, 2010. 10. Mr. Bose while assailing the said order submitted that there was no scope nor any rational justification for allowing such extension since the order does not reflect that there had been any application of mind on the part of the learned Public Prosecutor. He further submitted that investigating agency had no scope to seek such extension of time and this could only be done by the leaned Public Prosecutor. He further submitted that investigating agency had no scope to seek such extension of time and this could only be done by the leaned Public Prosecutor. It was further contended that the order dated 12th April, 2010 and the order dated 13th April, 2010 would further reveal that no notice was served upon the accused person while dealing with the said application for extension of time. 11. On the other hand, Mr. Himangshu De appearing as learned counsel for the respondent authority submitted that the learned court was perfectly justified in extending time for completion of investigation beyond the period of 180 days in response to the prayer made by the investigating agency. He further submitted that assuming that the accused had an indefeasible right to be released on bail for default in submission of a challan, since time has already been extended till 30th June, 2010, the petitioner/accused person cannot claim the benefit of Section 36A(4) of the N.D.P.S Act. In this context Mr. De referred to the decision of the Apex Court in the case between Uday Mohanlal Acharya vs. State of Maharashtra reported in 2001 SCC (Cri) 760. 12. In the backdrop of the said case, the Apex Court held that “It is also further clear that the indefeasible right of the accused does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case,” [ref. 1994(5) SCC 410 .] 13. Mr. De in course of his submission further referred to the decision of the Apex Court in the case of Dr. Bipin Shantilal Panchal vs. State of Gujarat (1996 SCC (Cri) 200). There too, the Apex Court held that the accused cannot exercise the right after filing of charge sheet. Reference was further made to the Apex Court decision in the case of Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. 1994 SCC (Cri) 1087. 14. Significantly enough, Mr. Sekhar Bose also sought to derive support from the said decision of the Apex Court. In the said case the Apex Court dealt with Terrorist and Disruptive Activities (Prevention) Act, 1987. vs. State of Maharashtra & Ors. 1994 SCC (Cri) 1087. 14. Significantly enough, Mr. Sekhar Bose also sought to derive support from the said decision of the Apex Court. In the said case the Apex Court dealt with Terrorist and Disruptive Activities (Prevention) Act, 1987. In the factual backdrop of the case before it and taking into consideration the relevant provision of the TADA, it was observed by the Apex Court that “the proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail.” 15. The observation made in connection with the said case may be reproduced as follows: “But that does not mean that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. The accused will be required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating/prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of ‘default’. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution’s ‘default’.” It was further observed that when report is submitted by the Public Prosecutor to the Designated Court for grant of extension, its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. 16. Mr. Bose deriving inspiration from the decision of the Apex Court in the case between Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narco. Cont. Bur. & Anr., reported in E Cr. N 2010(1)(SC) 862 submitted that a request by Investigating Officer for extension of time is not substituted for the report of the Public Prosecutor. It was further contended that the report of the Public Prosecutor, therefore, is not merely a formality but such report must disclose on the face of it that he has applied his mind and being satisfied with the progress of the investigation, considered grant of further time to complete investigation necessary. 17. So far the present petitioner is concerned, it is not in dispute that 180 days from the date of arrest of the petitioner expired on 12th April, 2010. Though there is an order on 12th April, 2010 on the basis of a report dated 8th April, 2010 of the investigating agency whereby time was extended till 30th June, 2010, there had been no direction for service of notice upon the present petitioner nor the petitioner was given an opportunity of hearing. Moreover, it is manifestly clear that there was no report from the learned Public Prosecutor nor any material before the learned court indicating any application of mind on the part of the learned Public Prosecutor. That being a sine qua non for seeking extension under Section 36A(4) of the N.D.P.S Act, the order dated 12th of April, 2010 cannot pass the test of legal scrutiny. 18. That being a sine qua non for seeking extension under Section 36A(4) of the N.D.P.S Act, the order dated 12th of April, 2010 cannot pass the test of legal scrutiny. 18. After due consideration of all relevant facts and circumstances and having regard to the aforesaid discussions we find no reason nor any scope for brushing aside the submission as made on behalf of the present petitioner. The petitioner accordingly is entitled to get an order of bail but having regard to the nature of the alleged crime, the quantum of contraband materials allegedly recovered and taking into consideration other relevant facts and circumstances we are inclined to impose certain conditions while granting bail to the present petitioner. 19. Petitioner be, accordingly, out on bail of Rs. 1,00,000/- with one registered surety of Rs. 50,000/- and two local sureties with landed properties of Rs. 25,000/- each. Such bail bonds are to be furnished to the satisfaction of the learned A.C.J.M, Siliguri, District Darjeeling to whom a copy of the order be sent at once. 20. If on bail, the petitioner must not leave the territorial jurisdiction of the Sub-Division of Siliguri without due intimation to the investigating agency and permission of the learned Special Court. This disposes of C.R.M. No. 5870 of 2010.