Subhas Yadav vs State of West Bengal - 2023 Supreme(Cal) 1198

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1198

IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI
JOYMALYA BAGCHI, SUVRA GHOSH, KRISHNA RAO, JJ.
Subhas Yadav – Appellant
Versus
The State of West Bengal – Respondent
C. R. M. 146 of 2021, CRAN 1 of 2021, C.R.M. 174 of 2021, C. R. M. 214 of 2021, C. R. M. 257 of 2021, C. R. M. 437 of 2021, C. R. M. 478 of 2021 (CRAN 1 of 2021), C. R. M. 479 of 2021, (CRAN 1 of 2021), C. R. M. 497 of 2021 (CRAN 1 of 2021) (CRAN 2 of 2022) C. R. M. 535 of 2021 (CRAN 1 of 2021) C. R. M. 536 of 2021, C. R. M. 748 of 2021, C. R. M. 879 of 2021, C. R. M. 981 of 2021, C. R. R. 1419 of 2021
Decided on : 17-01-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sekhar Kumar Basu, Sr. Adv. Mr. Antarikhya Basu, Adv. Mr. Sayan Mukherjee, Adv. Mr. H S Poddar, Adv., Ms. Suman Sehanabis (Mondal), Adv. Ms. Atulya Sinha, Mr. Jaydeep Kanta Bhowmick, Adv. Mr. Uday Sankar Chattopadhyay, Mr. Santanu Maji, Ms. T. Rakshit, Adv., Mr. Kallal Ghosh, Adv., Mr. Biswajit Das, Adv., Mr. Ranadeb Sengupta, Adv., Md. Jakir Hossain, Adv., Mr. Rajdeep Majumder, Adv. Mr. Moyukh Mukherjee, Adv., Mr. Pritam Roy, Adv., Ms. Radhika Agarwal, Adv., Mr. Saryati Datta, Adv., Mr. Prajnadeepta Roy, Adv., Mr. Tapas Kumar Ghosh, Adv., Mr. Tanmay Chowdhury, Adv., Mr. Arnab Saha, Adv., Mr. Abhimanyu Bannerjee, Adv., Mr. Ayan Bhattacharyya, Adv., Mr. Sagar Saha, Adv., Mr. Sharequl Haque, Adv., Mr. Aditya Ratan Tiwary, Adv., Mr. Prattay Kumar Khan, Adv.
For the Respondent: Mr. Saswata Gopal Mukherjee, Ld. P.P., Mr. Aditi Shankar Chakraborty, Ld. A.P.P., Mr. Sanjay Bardhan, Ld. A.P.P., Mr. Rudradipta Nandy, Ld. A.P.P., Mr. Arun Kumar Sarkar, Adv., Mr. Nilay Chakraborty, Adv., Mr. Ranabir Roy Chowdhury, Adv., Mr. Sourav Ganguly, Adv., Mr. Ujjwal Luksom, Adv, Mr. Biswarup Roy, Adv., Mr. Sudipto Kumar Majumder, Ld. A.S.G., Mr. Ajoy Kumar Singhania, Adv.

Headnote:
Constitution of India, 1950 – Article 21 – Narcotic Drugs and Psychiatric Substances Act – Section 36A (4) – Criminal Procedure Code, 1973 – Section 167 – Whether retrospective extension of period of investigation by learned Special Court is permissible on a juxtaposed reading of section 36A (4) of NDPS Act vis-à-vis Article 21 of Constitution of India – Held, Moreover, it will be against mandate of clause (b) of proviso to sub-section (2) of section 167 of CrPC – It cannot be accepted that accused is not entitled to raise any objection to application for extension – Scope of objections may be limited – Accused can always point out to Court that prayer has to be made by Public Prosecutor and not by investigating agency – Secondly, accused can always point out twin requirements of report in terms of proviso added by subsection (2) of Section 20 of 2015 Act to sub-section (2) of Section 167 of CrPC – Accused can always point out to Court that unless it is satisfied that full compliance is made with twin requirements, extension cannot be granted – Ordered Accordingly.

JUDGMENT :

JOYMALYA BAGCHI, J.

Terms of reference:-

1. The reference was made on the following issue:-

“Whether an accused upon expiry of period of detention pending investigation as prescribed under Section 36A(4) of the NDPS Act is to be released automatically on statutory bail without a prayer made by him availing such right and expressing his willingness to furnish bail?

2. During hearing the parties proposed additional issues as follows:-

1. Whether retrospective extension of the period of investigation by the learned Special Court is permissible on a juxtaposed reading of section 36A(4) of the NDPS Act vis-à-vis Article 21 of the Constitution of India?

2. Whether at the time of passing of the order extending the period of investigation the learned Special Court would apply the parameters of observing the “progress of investigation” and “the specific reasons of detention” prior to the passing of such order?

3. Whether in the interregnum period between the conclusion of the period of investigation, and an order retrospectively extending the period of investigation the petitioner would be liable to be released on statutory bail, especially on a harmonious interpretation of section 36A(4) of the NDPS Act and section 167 of the Cr.P.C.?

4. Whether the mere filing of an application for extension in the absence of an order extending the period of investigation would render the application for statutory bail filed by the petitioner to be infructuous?

Arguments at the Bar:-

3. Learned Counsels appearing for the petitioners argued the right to be released on statutory bail is a facet of right to liberty enshrined under Article 21 of the Constitution of India. Such right cannot be whittled down except through procedure established by law. Section 36A(4) of the Narcotic Drugs and Psychiatric Substances Act (hereinafter referred to as the Act) alters the general law under section 167(2) of the Code of Criminal Procedure and provides in certain offences under the Act including offences involving commercial quantity an accused shall be entitled to be released on statutory bail if investigation is not completed within 180 days. Proviso to the said section empowers the Court to extend the said period up to one year on the report of a public prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond 180 days. The aforesaid statutory scheme makes it imperative that report of the public prosecutor must be filed before expiry of 180 days failing which the accused would automatically be entitled to statutory bail. In other words, report filed by the prosecutor after expiry of 180 days cannot empower the Special Court to retrospectively extend the period of detention under the proviso to section 36A(4) of the Act. A belated report of the public prosecutor seeking extension cannot take away such right. Relying on Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67 it was further argued the special court has a duty to inform the accused of his right to be released on statutory bail. Failure to apprise the accused of such right would automatically entitle him to statutory bail. Learned Counsels also argued extending the period of remand under the proviso to section 36A(4) of the Act is not a mechanical exercise. Report of the Public Prosecutor must indicate that the investigating agency was not indolent and there is appreciable progress in investigation and ought to spell out ‘specific reasons’ justifying detention pending further investigation. Special court must express satisfaction on the basis of the report of the Public Prosecutor on the twin requirements before extending detention beyond 180 days.

4. Learned Public Prosecutor and Assistant Solicitor General for Union of India opposed such interpretation. Relying on M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485 they argued right to statutory bail does not crystallise till it is ‘availed of’. If the application for extension i