Chandra Bose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934** ## **Bail Appl..No. 337 of 2013 ()** **----------------------------(NDPS CRIME NO. 1/2012 OF EXCISE ENFORCEMENT AND NARCOTIC SPECIAL SQUAD, THIRUVANANDAPURAM)** ## **PETITIONER/ACCUSED :** **--------------------------------------** **CHANDRA BOSE, AGED 36 YEARS, S/O. KRISHNANKUTTY,CHARUVILA PUTHEN VEEDU, PARAYIL MALAYIL,VENGOOR POST,THEVANOOR DESOM, ELAMADU VILLAGE,KOTTARAKKARA TALUK.** ## **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENT(S)/COMPLAINANTS :** **-----------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **2. EXCISE CIRCLE INSPECTOR,** - **EXCISE ENFORCEMENT & NARCOTIC SPECIAL SQUAD, THIRUVANANTHAPURAM-695 001.** **BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29-01-2013, THE COURT ON 05-02-2013 PASSED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## B.A. No. 337 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of February, 2013. ## **ORDER** The petitioner was apprehended with 24 Kgs. if dried Ganja on 20.6.2012 at about 7 p.m. and was booked for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985. 2. The main contention taken by the learned counsel for the petitioner is that the petitioner has been in custody from 20.6.2012, for more than 180 days, and therefore the statutory period prescribed under Section 36A (4) is over and the petitioner is entitled to statutory bail. Learned counsel was fair enough to submit that it is true that an extension petition as provided under the proviso to Section 36A(4) has been filed and the court has allowed that application. But, the learned counsel pointed out that the said petition has been filed by the Investigating Officer and not by the Public Prosecutor as is envisaged by the provision. Relying on the decision reported in **Sanjay** B.A.337/2013. 2 ## **Kumar Kedia v. Intelligence Officer, Narcotics Control** **Bureau** ((2009) 17 SCC 631), it was contended that an application by the Investigating Officer under Section 36A (4) proviso cannot be entertained for extension of time as contemplated under that provision, and if at all any extension is needed, the request has to be made by the Public Prosecutor concerned. In the absence of any such application, the court could not have granted extension of time and the statutory period of 180 days having been over, the petitioner is entitled to statutory bail. 3. The learned Public Prosecutor opposed the application. It was pointed out by him that it is true that the application for extension of time as contemplated under the proviso to Section 36A(4) has been filed by the Investigating Officer. But it was filed through the Public Prosecutor and had the approval of the learned Public Prosecutor. It may be deemed that, according to the learned Public Prosecutor, the Public Prosecutor through whom the petition has been filed B.A.337/2013. 3 has applied his mind and had satisfied himself about the contents of the application which would be sufficient for extension of time. 4. Though the argument of the learned Public Prosecutor may look attractive at the first blush, unfortunately that is not the law. ## 5. Section 36A(4) reads as follows: _“In respect of persons accused of an offence punishable under section 19 or section 24 or section27A or for offences involving commercial quantity the references in sub-section (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_ B.A.337/2013. 4 _reasons for the detention of the accused beyond the said period of one hundred and eighty days.”_ A reading of the proviso shows that in case the investigation could not be completed within 180 days mentioned in the main provision, extension of time can be sought for under the proviso, and the extension can be granted for a period upto one year. But, the extension has to be on the basis of a report filed by the Public Prosecutor which should indicate the progress of the investigation and the specific reasons for detention of the accused beyond the period of 180 days. 6. In the decision reported in **Sanjay Kumar Kedia's case** (supra) an identical question was considered. There also, after the statutory period was over, an extension was sought for by way of an application filed by the Investigating Officer. The court concerned accepted that application and granted extension. That was challenged before the High Court concerned which confirmed the order of the lower court. The Apex Court however found that such B.A.337/2013. 5 a petition was not acceptable and since the proviso insisted on a report of the Public Prosecutor, the extension, if at all any, can be granted only on the basis of a report as such envisaged under the proviso being filed by the Public Prosecutor. The Apex Court referred to a similar provision in the Terrorist and Disruptive Activities (Prevention) Act and also relied on the decision in **Hitendra Vishnu Thakur v. State of Maharashtra** ((1994) 4 SCC 602), wherein an identical issue was considered. 7. One may also note that in Section 321 Cr.P.C., which provides for withdrawal from prosecution, the request has to be made by the Public Prosecutor in charge of the case. 8. As per the provisions referred to above, the Investigating Officer has no role to play in such circumstances. It would appear that the duty is cast on the Public Prosecutor concerned to apply his mind to the facts of the case and determine the necessity for extension of time B.A.337/2013. 6 or for withdrawal of the case as may be. In fact, it would appear that while exercising such functions, learned Public Prosecutor is not only exercising an executive function, but of a slight judicial nature. 9. Going by the proviso to Section 36A(4)of the NDPS Act, the Public Prosecutor has to assess the progress of the investigation, form his own opinion about the methods adopted and the procedures followed and also has to give specific reasons as to why the detention should be extended. The function of the Public Prosecutor, going by the said provision, is not merely accepting the demand of the Investigating Officer. On the other hand, the proviso would insist that the application should clearly reflect that an independent, impartial assessment of the situation has been made by the Public Prosecutor concerned and thereafter he has to file a report to the court concerned seeking appropriate relief. B.A.337/2013. 7 10. It is well settled that if the Statute provides that a thing should be done in a particular way, it has to be done in that way alone and not in any other manner. 11. In the case on hand, it is an admitted fact that there is no report filed by the Public Prosecutor for extension of time and the extension of time was granted by the court concerned based on an application filed by the Investigating Officer. That is not in tune with the provision mentioned above and also not in accordance with the principle laid by the Apex Court in the decision referred to above. If that be so, extension was wrongly granted. That being the position, the petitioner is entitled to bail. Therefore, this application is allowed on the following conditions: i) Petitioner shall be released on bail on his executing a bond for a sum of Rs.25,000/(Rupees Twenty Five Thousand only) with two solvent sureties for the like sum each to the B.A.337/2013. 8 satisfaction of the Sessions Court, Thiruvananthapuram. ii) The court concerned may ensure the identity of the sureties and also the veracity of the tax receipts that are sought to be produced at the time of executing the bond. iii) Petitioner shall report before the Investigating Officer on every Friday between 9 a.m. and 10 a.m. till final report is laid. iv) Petitioner shall surrender his passport before the court concerned and if he does not possess one, an affidavit to that effect shall be filed before the court concerned. v) Petitioner shall not leave the State of Kerala without the permission of the court concerned. vi) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses. B.A.337/2013. 9 vii) If any of the conditions is violated, bail granted to the petitioner shall stand cancelled, and the court concerned may take such steps as are available to him in law. P. BHAVADASAN, JUDGE sb.