Back
2016 Supreme(Bom) 1529
IN THE HIGH COURT OF BOMBAY
Anuja Prabhudessai, J.
Nazir Ahmad Sange - Applicant
Versus
The State of Maharashtra and Ors. - Respondent
Criminal Bail Application No. 2321 of 2015 With Criminal Application No. 1161 of 2015
Decided On : 13-06-2016
For the Applicant : Mr. Mobin Solkar, Tahera A. Rashid Qureshi, Mr. Ashok P. Mundergi, with Mr. J.J. Bardeskar.
For the Respondent: Mrs. G.P. Mulekar, Ms. Rebecca Gonsalves.
The main legal point established in the judgment is that the application for extension of the investigation period must meet the conditions stipulated in Section 36A(4) of the N.D.P.S. Act, and the accused must be given a fair opportunity to respond to the extension request, ensuring compliance with the principles of natural justice.
Headnote:
N.D.P.S. Act - Extension of Investigation Period - Section 36A(4) - Summary of Acts and Sections: N.D.P.S. Act, Section 36A(4), Section 167(2) of Cr.P.C. - The court discussed the provisions of Section 36A(4) of the N.D.P.S. Act, which allows for extension of the investigation period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the initial 180 days. The court also referred to Section 167(2) of the Cr.P.C., which deals with the release of accused on bail if the investigation is not completed within the stipulated time.
Fact of the Case:
The applicants were accused of offences under the N.D.P.S. Act and sought bail after the Special Public Prosecutor sought an extension of the investigation period. The court considered the circumstances of the arrests, the progress of the investigation, and the filing of the extension report.
Finding of the Court:
The court found that the application for extension met the necessary conditions stipulated in Section 36A(4) of the N.D.P.S. Act, and there was total compliance with the principles of natural justice in granting the extension. The court dismissed the bail applications as they were not maintainable due to the extension of the investigation period.
Issues: The main issue was whether the application for extension of the investigation period complied with the provisions of Section 36A(4) of the N.D.P.S. Act and whether the accused were given a fair opportunity to respond to the extension request.
Ratio Decidendi: The court held that the application for extension met the necessary conditions stipulated in Section 36A(4) of the N.D.P.S. Act, and the accused were given a fair opportunity to respond to the extension request, thus ensuring compliance with the principles of natural justice.
Final Decision: The court dismissed the bail applications as they were not maintainable due to the extension of the investigation period beyond the initial 180 days.
Anuja Prabhudessai, J.
The applicants are arrayed as accused in Crime No.2 of 2015 registered at the office of Customs, Narcotic Cell for offences punishable under Section 21(b), 23(b) r/w. 8(c) of N.D.P.S. Act. The applicant in Bail Application No.2321 of 2015 was arrested on 9.3.2015 and he was produced before the Special Court, Pune on 10.3.2015, whereas the applicants in Criminal Application No.1161 of 2015 were arrested on 10.3.2015 and were produced before the Special Court, Pune on 11.3.2015. They were remanded in custody from time to time. The period of 180 days for completion of investigation in respect of the applicant Nazir in Bail Application No.2321 of 2015 was to expire on 6.9.2015, whereas the said period in respect of the applicants in Criminal Application No. 1161 of 2015 was to expire on 7.9.2015.
2. By report dated 1.9.2015 filed under Section 36A (4) of the N.D.P.S. Act, the Special Public Prosecutor sought extension of three months for completion of investigation. Upon hearing the prosecutor and the Advocate for the accused, the learned Special Judge by order dated 1.9.2015 granted extension for period of four days.
3. The applicant in Bail Application No.2321 of 2015 and the applicants in Criminal Application No. 1161 of 2015 filed separate applications for bail dated 15.9.2015 being Application Nos. 3036 of 2015 and 3037 of 2015 under Section 36-A(4) of N.D.P.S. Act r/w. 167(2) of Cr.P.C. Both these applications were dismissed by common order dated 13.10.2015. Consequent thereto, the applicant Nazir Sange has filed Bail Application No. 2321 of 2015, whereas the applicants in Criminal Application No.1161 of 2015 have challenged the order of extension dated 1.9.2015 and have further sought release on bail.
4. Heard learned Sr. Counsel Mr. Mundargi for the applicants in Application 1161 of 2015 and learned Counsel Mr. Solkar for the applicant in Bail Application No.2321 of 2015. The learned counsels for the applicants have submitted that the application for extension was filed on 1.9.2015 whereas the period of 180 days was to get over on 6.9.2015. The learned Counsels therefore claim that the application for extension was premature. The learned Counsels for the applicants further submitted that the said application for extension which was filed by the original complainant cannot be treated as a report of the said Special Public Prosecutor.
5. The learned Counsels for the applicants have further submitted that the investigation was already completed and that the Special Public Prosecutor had not spelt out the reasons for further extension.
6. The learned counsels for the applicants have further submitted that the order of extension was passed without issuing notice to the accused/in the absence of the accused. The learned Counsels for the applicants have further submitted that Advocate Raju Mate who was present in the Court on that day had no instructions either to oppose the application or to argue on behalf of the applicants. The learned counsels for the applicants therefore claim that mere presence of the advocate in the court does constitute notice to the applicant accused and does not meet the requirement of Section 36-A(4) of the N.D.P.S. Act. The learned counsels for the applicants have stated that there was no progress in the investigation and that the learned Special Judge has granted extension mechanically, without application of mind.
7. The learned Counsel for the applicants have relied upon the decision of the Apex Court in Hitendra Thakur v. State of Maharashtra, 1994 (4) SCC 602, Sanjay Dutt v. State, 1994 SCC (Cri.) 1433, Ateef Mulla v. State of Maharashtra, (2005) 7 SCC 29.
8. The Learned Addl.PP, Ms. Rebecca Gonsalves submitted that the period of 180 days for completion of investigation in respect of the applicant in Bail Application No. 2321 of 2015 was to expire on 6.9.2015, whereas the period in respect of applicants in Criminal Application No. 1161 of 2015 was to expire on 7.9.2015. S
