TMI Blog2011 (1) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant was arrested on 21st February, 2010 by the staff of Anti Narcotic Cell on the allegation that he was found in possession of 144 ecstasy tablets weighing 55 grams, heroine powder weighing 5 grams, cocaine weighing 6.5 grams, liquid LSD 7.30 grams and 1.165 kilograms of charas. An offence punishable under Section 20(b)(ii)(c), 21(b) and 22(c) of N. D. P. S. Act, 1985 ('The Act' for short) was registered against the applicant. Since the period of 180 days in filing the chargesheet against the applicant was to expire on 28th August, 2010, at the request of Public Prosecutor the time to file chargesheet was extended for 60 days, which was to expire on 18th October, 2010. 3. On 14th October, 2010, an application was filed by learned Public Prosecutor seeking extension of time by 60 days to file chargesheet against the applicant in terms of Section 36(A)(4) of the Act. The learned Special Judge passed an order "notifying the accused". On the same day, he granted extension for a period of 60 days for filing the chargesheet. Indisputably, the applicant was not heard before the order was passed by the Special Judge granting extension of time of 60 days. 4. On 26th October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on bail notwithstanding the fact that chargesheet has been filed on 13th December, 2010. According to learned Counsel, the order granting extension of time discloses total non-application of mind and as such, the order granting extension of time is liable to be set aside and consequently the applicant is entitled to bail for not filing the chargesheet within the extended period granted by the Special Judge, which expired on 18th October, 2010. In support of his submissions, Mr. D'Souza placed reliance upon the following judgments : (i) Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotic Control Bureau and Anr; 2010 All MR (Cri)1310 (S.C.). (ii) Hitendra Vishnu Thakur vs. State of Maharashtra and Ors.; 1994 SCC (Cri) 1087. (iii) Order dated 7 th June 2010 passed by this Court in Criminal Application (Bail) no.123/2010 and iv) Order dated 21 s t December, 2010 passed by this Court in Criminal Writ Petition No.83/2010. 7. Per contra, Mr. Ferreira, learned Public Prosecutor for the respondent fairly conceded that the applicant was not heard before granting extension. However, learned Public Prosecutor submitted that the applicant is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. D'Souza that since the learned Public Prosecutor in his application had made an incorrect statement that report from DFDA, Panaji is not received in so far as charas alleged to have been recovered from the applicant, the order granting extension of time is liable to be set aside and consequently, the applicant is bound to be released on bail by this Court is concerned, I am unable to accept the same for the reasons stated hereinafter. 11. No doubt when the application under Section 36(A)(4) is filed by the learned Public Prosecutor seeking extension of time to file the chargesheet, the accused is entitled to be heard before passing any orders thereon. The learned Special Judge dealing with such an application has to apply his mind and consider the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the period of 180 days. As has been held by the Apex Court in the case of Hitendra Thakur (supra), while dealing with similar provision in Tada Act, the Public Prosecutor is expected to independently apply his mind to the request of investigating agency before submitting the report to the Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the second application did not satisfy the tests laid down in the case of Hitendra Thakur (supra). In the second application, it was simply stated that the prosecution was not in a position to submit the complaint and hence, prayed for further time for the same. In the present case, the Public Prosecutor himself had filed an application seeking extension along with the letter of request received from the investigating officer. Therefore, the ratio laid down in the case of Sanjay Kumar Kedia (supra) would not advance the case of the applicant. 15. In Criminal Writ Petition no.83/2010, the applicant who was arrested on the allegation of having committed the offence punishable under Section 21(b) and 22(c) of the Act challenged the orders granting extension of time and they were set aside on the ground that the applicant /accused was required to be heard in terms of Section 36(A) (4), was not heard. In the case of Antonios Kaminis, the learned Single Judge granted bail to the applicant since the application seeking extension of time to file the complaint, was filed by the investigating officer and not by the public prosecutor. The ratio of the said judgment also would not adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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