P. Bhavadasan, J.

1. This Crl.M.C. is directed against the order dated 02.04.2013 by the Sessions Court, Ernakulam whereby, the said court allowed an application under Section 36A(4) of the NDPS Act granting extension of period of investigation up to one year.

2. Most of the facts are not in dispute. There is an allegation that huge quantity as much as 100kg of Ganja were seized from four accused persons. The fourth accused had been released on bail but accused Nos. 1 and 2 are under judicial custody. It appears that the 3rd accused has made himself scarce. From the records it is seen that the Investigating Officer, finding that he could not complete the investigation within the stipulated time namely 180 days as envisaged by provisions of the NDPS Act, filed Crl.M.P.No.675/2013 seeking further extension of time. That was very strongly opposed by the accused who pointed out that an application for extension cannot lie at the instance of the Investigating Officer but has to be filed as a report by the Public Prosecutor, which should also indicate that he has applied his mind and also assessed the progress of the investigation and he feels that further extension of time is necessary.

3. The court below holding that since the petition has been signed by the learned Assistant Public Prosecutor, it can be in law by treated as an application by him and irrespective of the fact that the affidavit and application was moved by the Investigating Officer since it has the endorsement of the Assistant Public Prosecutor it satisfies the requirements of proviso to Section 36A(4) of the NDPS Act and accepted the petition and granted the time sought for. The said order is under challenge.

4. At the outset itself, it may be stated that the order is clearly unsustainable both on facts and in law. It will be useful to refer to the relevant provision that is Section 36A (4) which reads as follows:

"In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof 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. We are concerned here with the application of proviso. The proviso stipulates that when investigation could not be completed within the period of 180 days granted by the main part of Clause (4), an extension of time up to a period of one year can be granted provided a report to that effect is filed by the Public Prosecutor indicating the progress of investigation and also giving specific reason for the detention of the accused beyond the period of 180 days.

6. Proviso is explicit and very clear. It does not speak about an application by the investigating Officer but speaks about a report by the Public Prosecutor concerned. There is an ocean of difference between an application by the Investigating Officer and a report by Assistant Public Prosecutor concerned. The proviso is careful enough to indicate that the report of the Public Prosecutor so filed seeking extension of time should indicate the progress of the investigation and also should specify the reason for further detention. It leaves one in no doubt that it implies application of mind by the learned Public Prosecutor and an assessment by him of the investigation so far done and the necessity for the extension of time.

7. This issue has been considered by this Court while disposing of Bail Application No.337 of 2013 by order dated 05.02.2013. An identical question was considere