Bhavik Vijay Thakkar vs State Of Maharashtra
2022 Latest Caselaw 921 Bom

                                                    1 / 21                   01-BA-4400-21-F.odt

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL BAIL APPLICATION NO.4400 OF 2021

                       Bhavik Vijay Thakkar                             .... Applicant

                                 versus

                       State of Maharashtra                             .... Respondent
                                                        .......

                       •     Mr.Nitin Sejpal, Advocate for Applicant.
                       •     Smt.A. A. Takalkar, APP for the State/Respondent.

                                                CORAM        : SARANG V. KOTWAL, J.

                                                DATE         : 27th JANUARY 2022
                                                               (through video conferencing)

                       P.C. :

1. Leave to amend. Amendment to be carried out

forthwith.

2. This application was preferred by the Applicant with

only one main prayer that the Applicant be released on bail

Digitally signed by invoking section 167(2) of Cr.PC. r/w 36A(4) of the Narcotic MANUSHREE MANUSHREE V V NESARIKAR NESARIKAR Date:

2022.01.27 20:09:45 Drugs and Psychotropic Substances Act, 1985 (for short 'NPDS +0530

Act), in connection with C.R.No.256/2021 registered with

Nesarikar 2 / 21 01-BA-4400-21-F.odt

Bazarpeth Police Station, District Thane, under section 8(c),

22(c) and 29 of the NDPS Act. I have granted leave to amend as

mentioned at the beginning of the order; pursuant to that

amendment, further prayer was made for quashing and setting

aside the order dated 10/12/2021 passed by the Special Court

granting extension of 90 days for filing of the charge-sheet.

3. The basic facts necessary to decide this application are

besides the merits of the matter because they depend on the

dates of first remand, the last date for filing charge-sheet and

the date on which extension of period to file charge-sheet was

granted. However, just to complete the picture; the basic facts

are mentioned as follows:

4. The FIR was lodged on 16/06/2021 by police constable

Dilip Sonawane. He has stated that he was working with the

Anti-Narcotic Squad, Crime Branch Thane City. On 15/06/2021

at about 09.00 a.m. he had joined his duty. The police officers

received a secret information that the present Applicant was to 3 / 21 01-BA-4400-21-F.odt

come on the road between Adharwadi Chowk to Birla College

Ring Road, Kalyan, at about 06.00 p.m. on 15/06/2021 and that

he was having 50-60 LSD papers for sale. The FIR mentions that

the mandatory provisions were followed, the panchas were

arranged and preparation was made to conduct the raid. As per

the secret information the raiding party went to the spot at

about 04.45 p.m. The FIR mentions that the Applicant came at

the spot on his two wheeler bearing No.MH-05-EN-8297. The

raiding party tried to nab him. He got alerted and tried to run

away. The police party tried to stop him. There was some scuffle,

but the Applicant managed to escape. However, in the scuffle his

mobile phone and wallet fell at the spot. It was inspected. The

wallet was found to contend 29 square papers. The prosecution

case is that those papers were of LSD (Lysergic Acid). Some

samples were cut from the papers and the papers were sealed.

The further investigation shows that in the same connection,

two more accused were arrested namely Manibhargav Nemmirai

and Niwant Vilhekar. From them also many papers of LSD were

seized. The prosecution case is that in all total 1496 LSD papers 4 / 21 01-BA-4400-21-F.odt

weighing 25.540 gms were seized, which is the subject matter of

this investigation. The chart to the NDPS Act shows that LSD

which is known as Lysergic Acid is a psychotropic substance and

the commercial quantity mentioned in the chart is 0.1 gms. The

contraband seized in this particular case was 25.540 gms, which

was way higher than commercial quantity. Thus, on merits the

matter is quite serious.

5. However, the subject matter of the present Bail

Application is not the merits of the matter, but the existence or

otherwise of the Applicant's right to be released on bail for not

filing of the charge-sheet within the stipulated period and also

for not obtaining extension in accordance with law.

6. For this purpose certain dates are important. As

submitted by learned APP, the Applicant was arrested on

18/06/2021. The first remand was obtained on 19/06/2021.

The last date for filing of the charge-sheet, i.e. after 180 was to

come to an end on 15/12/2021. The application for extension of 5 / 21 01-BA-4400-21-F.odt

the period to file charge-sheet was made on 10/12/2021 and it

was allowed on the same day. The extension for further 90 days

was granted to file charge-sheet. Thereafter the Applicant did

not make any application for bail before the Special Court;

instead this application is preferred before this Court on

22/12/2021.

7. Heard Mr.Nitin Sejpal, learned counsel for the

Applicant and Smt. A.A. Takalkar, learned APP for the State.

8. Learned counsel for the Applicant submitted that

before granting the extension, no notice was issued to the

Applicant. The Applicant's advocate was not served. The

application was not made by the public prosecutor by way of his

own report, but the application was made under the signature of

the Investigating Officer. The application did not show any

application of mind from the public prosecutor and therefore

this is all against the law laid down by the Hon'ble Supreme

Court in the various judgments and therefore the extension is 6 / 21 01-BA-4400-21-F.odt

bad in law. Therefore according to Mr.Sejpal the infeasible right

of being released on bail accrued in favour of the Applicant on

13/12/2021. (According to Shri Sejpal, last date for filing the

charge-sheet was on 12/12/2021). In support of his contention

Mr.Sejpal relied on the judgment of Hon'ble Supreme Court in

the case of Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence

Officer, Narcotics Control Bureau & Anr. as reported in 2010 ALL

MR (Cri) 1310 (SC).

9. He also relied on the judgment of Hon'ble Supreme

Court in the case of Sanjay Dutt Vs. State of Maharashtra,

through CBI, Bombay (II) as reported in 1994 Supreme Court

Cases (Cri) 1433 and finally he relied on the judgment of

Hon'ble Supreme Court in the case of Hitendra Vishnu Thakur

and Others Vs. State of Maharashtra and Others, as reported in

AIR 1994 Supreme Court 2623.

10. Learned APP opposed this application by filing the say

of investigating agency. She submitted that till the period of 180

days was over, the C.A. report was not available and therefore 7 / 21 01-BA-4400-21-F.odt

extension of period to file the charge-sheet was sought. The C.A.

report was subsequently made available only on 15/01/2022.

The C.A. report does support the prosecution case that the

sample show presence of Lysergic acid diethylamide (LSD). She

submitted that the offence is very serious. She disputed the fact

that the public prosecutor had not filed his own report seeking

extension. She submitted that the report in fact was filed by the

public prosecutor. However, she admitted on instructions that

the accused was not served the application for extension and

even the Applicant's advocate was not served. Therefore when

the extension was granted, at that time, the Applicant was not

served is an admitted position. She also stated on instructions

that, till today the charge-sheet is not filed.

11. However, she strongly urged that unless the Applicant

had made an application for his release on bail before the

Special Court no order granting bail in his favour can be passed.

She also relied on the case of Hitendra Thakur (Supra) to

support her contention.

8 / 21 01-BA-4400-21-F.odt

12. I have considered these submissions. The facts

necessary for the decision of this application are in narrow

compass. Before coming to the legal aspects, it is necessary to

refer to the averments in the Petition and the reply of the

prosecution. The Applicant has specifically pleaded in paragraph

No.6 of the memo of the application that the application for

extension of time was filed by the Investigating Officer on

10/12/2021. Learned Public Prosecutor had only submitted the

application to the Court by making an endorsement in the

application filed by the Investigating Officer. There is no report

of the special reasons given by the public prosecutor and/or

separate application or report that was submitted by the Public

Prosecutor in the present case.

13. Learned Special Judge was pleased to pass an order

granting further period of 90 days without giving notice to the

accused. This is gross violation of the fundamental rights in view

of the judgment of Hitendra Thakur's case.

9 / 21 01-BA-4400-21-F.odt

14. To these specific averments there is reference in

paragraph No.10 in the affidavit-in-reply. It is mentioned that

record shows that on 10/12/2021 the Investigating Officer had

filed an application through the learned APP for extension of

time. The said application was filed before the expiry of

prescribed period of 180 days. On the said application, say of

the Applicant was called by the learned Court. At that time, no

say has been filed and nobody appeared on behalf of the

accused on that day. Thus, there is no direct answer to the

averments, that the application was not filed by the Public

Prosecutor as his own report.

15. In this factual background, it is necessary to consider

the provisions of law canvased by both the parties. For the sake

of convenience it is necessary to refer to certain provisions

which are discussed by the Hon'ble Supreme Court in the above

judgments.

16. Clause (bb) of sub-section 4 of section 20 of Terrorist 10 / 21 01-BA-4400-21-F.odt

And Disruptive Activities (Prevention) Act, 1987 (for short

'TADA'), reads thus :

"Section 20 - Modified application of certain provision of the Code :

(4) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that-

(a) xxxxx

(b) xxxxx

(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:

'Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the 11 / 21 01-BA-4400-21-F.odt

investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days;' "

17. Proviso to sub section 4 of section 36A of NDPS Act is

worded in the similar manner, which reads thus

Section 36A - Offences triable by Special Courts

(1) xxxxx

(2) xxxxx

(3) xxxxx

(4) 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 sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "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 12 / 21 01-BA-4400-21-F.odt

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.

xxxxx"

18. Apart from that section 24(8) of TADA is relatable to

section 37 of the NDPS Act. Having noted these sections, now it

is advantageous to refer to the judgments cited by the parties.

Sanjay Kedia's case (supra) refers to Hitendra Thakur's case

(supra) and discusses about the necessity for filing of the report

of the Public Prosecutor and other requirements mentioned in

the Hitendra Thakur's case. Thus Sanjay Kedia's case basically

reiterates what Hitendra Thakur's case states. Similar is the case

with Sanjay Dutt's case, wherein again Hitendra Thakur's case

was relied on, as is clear from paragraph No.53(2)(a) and

paragraph No.53(2)(b) of that judgment. Therefore it is 13 / 21 01-BA-4400-21-F.odt

important that the observations by Hon'ble Supreme Court in

Hitendra Thakur's case are considered and applied to the facts of

the present case.

19. In this context, the discussion from paragraph No.19

upto paragraph 28 of Hitendra Thakur's case (supra) are

important. Certain important observations can be highlighted as

follows:

In paragraph No.20 necessity to complete investigation

at the earliest is discussed. In case of failure of the investigating

agency to comply with the provision of section 167(2) of Code it

is observed that indefeasible right of being released accrued in

favour of the Applicant. This was all in context of the provisions

of section 20(4) of TADA. Various other judgments were referred

and it was observed that an obligation, in such a case, is cast

upon the Court, when after the expiry of the maximum period

during which an accused could be kept in custody, to decline the

police request for further remand except in cases governed by 14 / 21 01-BA-4400-21-F.odt

Section 20(4)(bb). There is yet another obligation also which is

cast on the Court and that is to inform the accused of his right of

being released on bail and enable him to make an application in

that behalf. It was also mentioned that at that stage merits of the

case were not to be examined. In the same paragraph it was

further observed that once the period for filing the charge-sheet

had expired and either no extension under Cl. (bb) had been

granted by the Designated Court or the period of extension had

also expired, the accused person would be entitled to move an

application for being admitted to bail under Sub-section (4) of

Section 20 TADA read with Section 167 of the Code and the

Designated Court shall release him on bail, if the accused sought

to be so released and furnished the requisite bail. Hon'ble

Supreme Court has importantly further observed thus "We are

not impressed with the argument of the learned Counsel for the

appellant that on the expiry of the period during which

investigation is required to be completed under Section 20(4)

TADA read with Section 167 of the Code, the Court must release

the accused on bail on its own motion even without any 15 / 21 01-BA-4400-21-F.odt

application from an accused person, on his offering to furnish

bail. In our opinion an accused is required to make an

application if he wishes to be released on bail on account of the

'default' of the investigating/prosecuting agency and once such

an application is made, the Court should issue a notice to the

public prosecutor, who may either show that the prosecution has

obtained the order for extension for completion of investigation

from the court under Cl. (bb) or that the challan has been filed

in the Designated Court before the expiry of the prescribed

period or even that the prescribed period has actually not

expired and, thus resist the grant of bail on the alleged ground

of 'default'. The issuance of notice would avoid the possibility of

an accused obtaining an order of bail under the 'default' clause

by either deliberately or inadvertently concealing certain facts

and would avoid multiplicity of proceedings. It would, therefore,

serve the ends of justice if both sides are heard on a petition for

grant of bail on account of the prosecution's 'default'. Similarly,

when a report is submitted by the public prosecutor to the

Designated Court for grant of extension under Cl. (bb), its notice 16 / 21 01-BA-4400-21-F.odt

should be issued to the accused before granting such an

extension so that an accused may have an opportunity to oppose

the extension on all legitimate and legal grounds available to

him.

20. Hon'ble Supreme Court further observed that this was

a requirement of the principles of natural justice and the

issuance of notice to the accused or the public prosecutor, as the

case may be, would accord with fair play in action, which the

courts have always encouraged and even insisted upon. It would

also strike a just balance between the interest of the liberty of an

accused on the one hand and the society at large, through the

prosecuting agency on the other hand.

21. In paragraph No.22 the Hon'ble Supreme Court had

observed that the application for seeking extension has to be a

report of the public and not of the investigating agency. In

conclusion the Hon'ble Supreme Court in paragraph No.28 has

observed thus;

17 / 21 01-BA-4400-21-F.odt

"28. In conclusion, we may (even at the cost of repetition) say that, an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by Clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period 18 / 21 01-BA-4400-21-F.odt

prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under Clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under Clause (bb) but the charge-sheet is not filed within the extended period, the court shall have no option but to release the accused on bail, if he seeks it and is prepared to furnish the bail as directed by the Court. Moreover, no extension under Clause (bb) can be granted by the Designated Court except on a report of the public prosecutor nor can extension be granted for reasons other than those specifically contained in Clause (bb), which must be strictly construed."

22. Thus, all these observations indicate following

consequences:

If the accused is not served with the application for

extension, the extension cannot be sustained. Secondly, the

application has to be made by the Public Prosecutor after 19 / 21 01-BA-4400-21-F.odt

applying is own mind. The second fact is disputed as to whether

the Public Prosecutor himself had filed an application for

extension by showing his application of mind. However, there is

no dispute that the Applicant or his counsel was not served with

an application for extension of period to file the charge-sheet. In

this view of the matter, the extension granted on 10/12/2021

for filing of the charge-sheet for further period of 90 days is

clearly unsustainable and that order is required to be set aside.

23. However, the consequence of setting aside of that order

means that after 15/12/2021 (or 12/12/2021 as submitted by

Shri Sejpal) when the charge-sheet was to be filed and it was

not filed and extension is held to be bad in law, then the

Applicant gets right to make an application for default bail. Such

application was not made in the present case. Looking at the

facts of this case, liberty can be granted to the Applicant to make

an application for his release on default bail. If such application

is made, then all the procedural requirements provided in the

paragraph No.28 of the Hitendra Thakur's case will have to be 20 / 21 01-BA-4400-21-F.odt

complied with. Thus, if such application for bail is made, then

the Court will have to issue notice to the Public Prosecutor and

the Public Prosecutor can resist grant of bail by seeking

extension of period to file the charge-sheet by filing a report for

that purpose before the Court. These are the observations made

in paragraph No.28 of the Hitendra Thakur's case (supra).

24. In view of this discussion following order is passed:

ORDER

(i) The order dated 10/12/2021 passed by the Special Court for NDPS , Kalyan extending time to file charge-sheet is set aside.

(ii) The Applicant is at liberty to make an application for default bail under provisions of section 167 of Cr.P.C. r/w 36-A(4) of NDPS Act.

(iii) If such an application is made notice shall be issued to the Public Prosecutor and in accordance with observations in the Hitendra Thakur's case (supra) the Public Prosecutor can resist such application through Public 21 / 21 01-BA-4400-21-F.odt

Prosecutor's report for extension of period for filing of the charge-sheet.

(iv) The Special Court shall decide the question of grant or refusal of default bail and of granting extension of period to file charge-sheet in accordance with the judgment of the Hon'ble Supreme Court in the case of Hitendra Thakur (supra).

(v) With these observations the application is disposed of.

(SARANG V. KOTWAL, J.)