Point of law : Even though such a notice is necessary, it is not necessary that the notice should be in writing, production of the accused at the time in the court informing that the question of extension of the period for completing the investigation is being considered, is sufficient for the purpose

ORDER :

These Crl.M.C. Nos.2712/2021 and 2901/2021 are filed under Section 482 of the Code of Criminal Procedure, 1908, the Cr.P.C. for short, seeking to quash the order of the Special Court for trial of NDPS Act cases in Manjery dated 31.03.2021, whereby the learned Special Judge, on the basis of a report made by the Public Prosecutor seeking extension of two months' time for investigation under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'the Act'), was allowed. In both these Crl.M.C.s, the correctness of the order dated 31.03.2021 is under challenge.

2. The petitioners in Crl.M.C.No.2712/2021 are accused Nos.2 and 3 in crime No.26/2020 of the Excise Enforcement and Anti-Narcotics Special Squad, Malappuram. Now the investigation of the case is in progress and the accused are in custody.

3. Bail Application No.3850/2021 is an application under Section 439 of the Cr.P.C. moved by the petitioners in Crl.M.C.No.2712/2021 seeking their release on bail. They contend that they are in judicial custody from 03.10.2020 onwards, that for over the last more than eight months they are in judicial custody, that the investigation has progressed considerably and therefore, their continued detention is unnecessary.

4. Crl.M.C.No.2901/2021 is an application filed by the 4th accused in the crime seeking quashment of the order dated 31.03.2021, whereby the period of investigation stood extended by two months.

5. Meanwhile, the application for bail moved by the petitioner in Crl.M.C.2901/2021 by name Ali stood dismissed by the order dated 16.06.2021. Anyhow, he also challenges the validity of the order dated 31.03.2021.

6. I heard the learned counsel for the petitioners as well as the learned Senior Public Prosecutor.

7. According to the learned counsel for the petitioners, these petitioners are in judicial custody from 03.10.2020 onwards, after the period of 180 days, since the prosecution could not complete investigation and lay the final report, a report was filed before the court on 31.03.2021 seeking extension of time for investigation. However, the impugned order was passed by the learned Special Judge without giving copy of the report or the copy of the application moved by the Investigating Officer. They were not aware of the said motion made by the Investigating Officer or the report given by the Public Prosecutor. The said order dated 31.03.2021 was passed without informing them and without affording them opportunity to oppose the application.

8. The learned counsel placed reliance on the decision reported in Hitendra Vishnu Thakur and others v. State of Maharashtra and others [(1994) 4 SCC 602], which is followed in Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and another [(2009) 17 SCC 631]. The learned counsel also referred to an unreported decision of this Court in B.A.No.4204/2020. According to the learned counsel, everything was done without taking them into confidence and, that they should not have been kept in the darkness before passing the order.

9. On the other hand, the learned Senior Public Prosecutor strongly opposed the application.

10. According to the learned Public Prosecutor, the said order dated 31.03.2021 was passed after proper application of mind, taking into account the report given by the Special Public Prosecutor and also the submission of the Investigating Officer detailing the reasons for seeking extension of period of investigation. The Public Prosecutor also submitted that the said extended period of investigation expired on 31.05.2021 and even thereafter another extension was granted for two more months. Without challenging that order, now they have moved this Court challenging the order dated 31.03.2021 alone, which is bad. According to the learned Public Prosecutor, now, in the light of the subsequent developments, the order dated 31.03.2021 has become infructuous and therefore, both the Crl.M.Cs are liable to be dismisse