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2017 DIGILAW 399 (CAL)

Gurupada Roy v. State of West Bengal

2017-04-18

JOYMALYA BAGCHI

body2017
JUDGMENT : 1. Petitioner was arrested on the accusation of being in possession of 350 Kg. of opium shells punishable under Section 18 of the NDPS Act. As the narcotic substance allegedly seized from the possession of the petitioner was above commercial quantity, in view of Section 36-A(4) of NDPS Act the statutory period of detention under Section 167(2) Cr.P.C. in this case was 180 and the said statutory period expired on 22nd January, 2017. No application for extension of the statutory period up to one year was made in terms of proviso to Section 36-A(4) of the Act prior to expiry of the said period. Accordingly, petitioner prayed for statutory bail on 25th January, 2017. On the self-same date, report was filed by the Public Prosecutor seeking extension of time to file charge-sheet. Under such circumstances, by impugned order dated 25.1.2017 prayer for statutory bail of the petitioner was turned down and 3.2.2017 was fixed for filing police report. Charge-sheet was filed in the case on 28th January, 2017. In this backdrop, petitioner has challenged the order dated 25.1.2017 rejecting his prayer for statutory bail. 2. Mr. Sanyal, learned senior counsel submits as the right to statutory bail had been availed of by the petitioner prior to filing of the charge-sheet, such right to statutory bail could not be defeated by subsequent submissions of charge-sheet. He further submits prayer for extension of time to file charge-sheet was made after the expiry of 180 days could not have been entertained at all as the same had not been filed prior to the expiry of the said period. 3. On the other hand, Mr. Ayan Bose, the learned counsel for the State submits that prayer for extension of time to file charge sheet was made on 25th January, 2017, that is, on the self-same date when the petitioner availed of his right to statutory bail and the charge-sheet dated 27th January, 2017 was filed on 28th January, 2017 within the extended period, that is, 3.2.2017. Hence, the petitioner's prayer for statutory bail was rightly rejected. 4. I have considered the submissions of the parties. The issue which falls for decision is whether the prayer for extension of period of detention could have been made after the expiry of the said period and whether subsequent filing of charge sheet would defeat the right of the petitioner to avail of statutory bail. 5. 4. I have considered the submissions of the parties. The issue which falls for decision is whether the prayer for extension of period of detention could have been made after the expiry of the said period and whether subsequent filing of charge sheet would defeat the right of the petitioner to avail of statutory bail. 5. Section 36-A(4) of the NDPS Act reads as follows: "Section 36-A(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." 6. From the scheme of the aforesaid provision, it is clear that submission of a valid report of the Public Prosecutor indicating progress of investigation and disclosing specific reasons for extension of period of detention is a sine qua non for extension of the period of the detention under Section 167(2) Cr.P.C. from six months to one year. [See Sanjay Kumar Kedia vs. N.C.B. (2009) 17 SCC 631 (para-12)]. Hence, it is axiomatic that the stringent pre-conditions for extension of the time period is to be sought for by submission of a report by the Public Prosecutor prior to the expiry of the said period and not thereafter. It is, therefore, mandatory for the Public Prosecutor to submit report specifying the progress of investigation and the compelling reasons for detention beyond 180 days prior to the expiry of the said period so as to confer jurisdiction on the Special Court to act on such report and extend the period of detention, as aforesaid. It is, therefore, mandatory for the Public Prosecutor to submit report specifying the progress of investigation and the compelling reasons for detention beyond 180 days prior to the expiry of the said period so as to confer jurisdiction on the Special Court to act on such report and extend the period of detention, as aforesaid. Any report filed after the expiry of period of 180 days is clearly non est in the eye of law and cannot confer jurisdiction on the Special Court to retrospectively legitimise the detention of the accused after expiry of the statutory period by granting a retrospective extension of time after lapse of the statutory period of detention [See Sayed Mohd Ahmad Kazmi vs. State, (2012) 12 SCC 1 ]. It is another thing if the report is filed within the statutory period but the Court is unable to consider the report before the expiry of the period and passes an order extending the period subsequent to the expiry of 180 days as, in such cases, the extension shall relate to the date of filing of the report and not the date of the order of extension. In the instant case, Public Prosecutor admittedly did not file any report before the expiry of 180 days and, therefore, any order extending period of detention beyond 180 days on the strength of a report which was filed after the said period had already expired is clearly beyond the jurisdiction of the Special Court. Therefore, I am of the opinion that the right of the petitioner to avail statutory bail had already surfaced upon expiry of 180 days and was rightly availed of 25th January, 2017. Belated filing of a report by the Public Prosecutor on the selfsame day i.e. on the 183rd day of detention after the period of detention had expired is an exercise in futility and I hold that the report filed by the Public Prosecutor after the expiry of 180 days was non est in the eye of law and could not have conferred jurisdiction on the Special Court to extend the period of detention till 3.2.2017 and reject the prayer for statutory bail by the impugned order dated 25.1.2017. Accordingly, I hold that the petitioner was entitled to statutory bail and had rightly availed of such right on 25.1.2017 and the said right could not have been extinguished by retrospective extension of period of detention on the basis of the report of the Public Prosecutor which had been belatedly filed after the expiry of the statutory period on 22.1.2017. It is trite law that if statutory bail had been availed of and was illegally denied, the said right does not stand eclipsed by the subsequent filing of charge-sheet. Reference in that regard may be made to Union of India vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457 . 7. For the aforesaid reasons, I set aside the impugned order dated 25.1.2017 and direct the trial Court to release the petitioner on statutory bail upon furnishing a bond of Rs. 2,00,000/- with two cash sureties of Rs. 1,00,000/- each, one of whom must be local to the satisfaction of the trial Court and on condition that he shall appear before the Trial Court on every date of hearing and in the event he fails to do so without justifiable cause, the trial court shall be at liberty to cancel his bail without any reference of this Court. The petitioner shall also not leave the jurisdiction of the concerned Police Station except for attending the Court proceedings without the permission of the Trial Court until further orders. 8. Needless to mention trial court shall take necessary steps to conclude the trial at an early date. 9. The petition is accordingly allowed. Application is allowed.