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TMI Blog2011 (1) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... tober, 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, 2010, the applicant filed an application for bail before the Special Judge on the ground that no chargesheet was filed till that date and also on the ground that the extension of time was granted on a false representation made by the respondent that the report of analysis of the substance sent to Directorate of Foods and Drugs Administration, Panaji ('DFDA' for short) was not received prior to filing of the application seeking extension of time. Indisputably, the report from DFDA, Panaji in so far as charas alleged to have been seized from the applicant is concerned was received prior to 2nd July 2010. 5. The application for bail was opposed by the respondent. By order dated 1st November ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra 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 entitled to be released on bail on this count alone and by following the ratio of the order passed by this Court in Criminal Writ Petition No.83/2010, the matter deserves to be remanded to the learned Special Judge to decide the application seeking extension of time to file chargesheet afresh notwithstanding the filing of the chargesheet by the respondent on 13th December, 2010. He further submitted that the applicant having not challenged the order granting extension, is not entitled to seek bail on the ground that chargesheet has not been filed within the extended period granted by the learned Special Judge. Learned Public Prosecutor further submitted that in the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for extension of time with a view to enable the investigating agency to complete the investigation. The Public Prosecutor is not merely a post office or forwarding agency and is free to disagree with the reasons given by the investigating officer for seeking extension of time. The contents of the report to be submitted by the Public Prosecutor, after proper application of mind, are designed to assist to Court to independently decide whether or not extension should be granted in a given case and where the Court declines to grant such an extension, right to be released on bail on account of default of the prosecution becomes indefeasible. 12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation 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 advance the case of the applicant. 16. In so far as the judgments relied upon by Mr. Ferreira, learned Public Prosecutor are concerned, the issues arising therein are entirely different and as such, I do not deem it necessary to refer to the same. 17. In view of the above discussion, I am of the considered opinion that the order dated 14th October, 2010 passed by the learned Special Judge granting extension of time to file chargesheet deserves to be set aside and is, accordingly, set aside. However, the applicant shall continue to be in detention till the order is passed by the learned Special Judge. The learned Special ..... X X X X Extracts X X X X X X X X Extracts X X X X
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