B.D. Agarwal, .:- 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. B.K. 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 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. 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 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. 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) 17SCC 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: "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). 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: "............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 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 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 before me the I.O's prayer for extension of statutory period was allowed without any notice to the accused persons 10. 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 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 2001SC1910. 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 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. Thereafter, the matter was carried to the High Court. Although the Hon' ble Bombay High Court held 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. 14. 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.