Point of Law: Recovery of contraband - Right of the petitioner to be released on bail on account of the default of the prosecution was rightly refused by learned court below, upon extending period of investigation in due application of the provisions of Section 36-A(4) proviso of NDPS Act.

JUDGMENT :

Subhasis Dasgupta, J.

1. The impugned order dated 2nd January, 2021 passed by the learned Judge, Special Court under NDPS Act cum Additional District Judge, 2nd Court, Behrampore, Murshidabad in NDPS Case No. 157 of 2020 under Section 21(C)/29 of NDPS Act, rejecting the prayer for default bail upon extending the period of investigation, in application of the provisions under Section 36-A (4) proviso of NDPS Act is a subject of challenge in this revisional application.

2. Petitioner was arrested on 05.07.2020 and produced before the learned ACJM Lalbagh, Murshidabad on 06.07.2020 for the alleged recovery of contraband, above the commercial quantity.

3. Mr. Anjan Bhattacharya, learned advocate representing the petitioner submitted that neither issuing any notice of hearing as regards the prayer for extension of period of investigation beyond the statutory period, nor causing production of the petitioner (custody accused) on the scheduled date, the prayer for extension of statutory period of investigation was accorded making violation of the settled proposition of law.

4. Mr. Bhattacharya further contended that the indefeasible right of the petitioner to be released on bail already accrued on 2nd January, 2021, and further that the learned court below had committed a gross illegality in disposing of the prayer for extension of investigation with a serious delay, which ought to have been disposed of expeditiously.

5. Mr. Bhattacharya referring a decision reported in 2011 CriLJ 3020, delivered by Division Bench of this court in the case of Saraswati Rai vs. Union of India (UOI) contended that the court ought to have disposed of an application praying for extension of investigation beyond the statutory period, without causing any delay, and further that no written notice could be given to the petitioner/accused, as regards the prayer for extension of investigation beyond the statutory period, and more so the order granting extension of investigation beyond the statutory period was accorded in absence of the petitioner, who admittedly remained in custody.

6. Reliance was further placed by Mr. Bhattacharya on an unreported decision rendered by Orissa High Court, Cuttack delivered in the case of Iswar Tiwari vs. State of Odisha to contend that the issuance of a notice mandatorily upon the petitioner remaining in custody together with causing production of the accused is the requirement of law, while making application of the provisions available under Section 36-A(4) proviso of the NDPS Act. Being emboldened by such decision, argument was raised by Mr. Bhattacharya that the learned court below committed illegality by causing delay in the disposal of the petition, filed by the investigating agency, praying for extension of the period of the investigation beyond the statutory period, which ought to have been disposed of expeditiously, and that too certainly before the expiry of the statutory period of investigation.

7. Mr. Bardhan representing the State countered the submission of Mr. Bhattacharya replying that the prayer for investigation was made before the learned court below on 24th December, 2020, and on the same date the learned Public Prosecutor submitted his independent prayer reflecting sufficient application of his mind, and the compelling reasons in justification of the extension period of investigation together with the compelling reasons, supportive of further detention of the accused persons in custody, beyond the statutory period of investigation.

8. According to Mr. Bardhan, twin conditions laid down in the Act itself were duly satisfied by the learned Public Prosecutor, while submitting his independent report before the learned court below in support of the prayer for extension of period of investigation beyond the statutory period. Mr. Bardhan further contended that, when learned defence advocate representing the petitioner participated in the hearing process, notice shall be deemed to have been served with, as partic