Asif Abdul Memon vs The State Of Maharashtra
2022 Latest Caselaw 5196 Bom

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SWAROOP   SWAROOP
SHARAD    SHARAD PHADKE

                                                                               17 apl 950 of 2021.doc
          Date: 2022.06.09
PHADKE    14:49:00 +0530




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL APPLICATION NO.950 OF 2021

Asif Abdul Memon,
Occu : Chicken Business,
Age 26 years,
Add : Room No.78, Hanuman Nagar,
S.V.Road, Borivali (E),
Mumbai - 400 066
(presently in judicial custody at
Mumbai Central Prison )                                                  ...      Applicant

      versus

The State of Maharashtra
(Panvel Taluka Police Station vide
C.R.No.115 of 2021 dated 26th March, 2021)                               ...      Respondent

Mr. Azaz Khan i/by Ms. Zehra Charania, for Applicant.
Mr. H.J.Dedhia, APP, for State.

                                         CORAM: N.J.JAMADAR, J.

                                         RESERVED ON   : 4th MAY, 2022
                                         PRONOUNCED ON : 9th JUNE, 2022

ORDER :

1. The Applicant who is arraigned in C.R.No.115 of 2021

registered with New Panvel Police Station for the ofences

punishable under Sections 20(C) read with 8(c) and Section 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (the

NDPS Act), has preferred this Application under Section 482 of the

Code of Criminal Procedure, 1973 (the Code), assailing the legality,

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propriety and correctness of the Order dated 17 th September, 2021

passed by the learned Special Judge, Panvel-Raigad, granting two

months extension to complete the investigation in the said crime.

2. On 25th March, 2021, pursuant to an information, a raid

was conducted on Pune-Mumbai Highway in front of JNK Lifters Pvt.

Ltd., wherein a Innova Car bearing Registration No.MH-04/CJ-9363,

which was on its way to Mumbai from Pune, was intercepted. The

Applicant and the Accused No.1 were found in the said car. During

the course of the search, in the presence of the public witnesses, 10

gunny bags containing 200 kgs ganja were found. The contraband

articles were seized. Samples were collected. The Applicant and

the Accused No.1 were apprehended. Crime was registered at

C.R.No.115 of 2021 with New Panvel Police Station for the ofences

punishable under Sections 20(C) read with 8(c) and 29 of the NDPS

Act.

3. The Applicant along with the co-accused were produced

before the learned Magistrate on 26 th March, 2021. They were

initially remanded to police custody and later on to judicial custody.

The period of 180 days, for which detention is permissible under

Section 36-A of the NDPS Act, was to expire on 21 st September,

2021.

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4. On 15th September, 2021, a report was fled by the

learned Public Prosecutor, Alibag-Raigad, seeking extension of 60

days to complete the investigation. It was, inter alia, averred that

the samples of the contraband have been sent for analysis to

Forensic Science Laboratory (FSL) and, despite reminders, the report

of the analysis was awaited. The ofences had wide ramifcations

and other persons, whose complicity was revealed during the course

of the investigation, were yet to be arrested. Therefore, the

learned Public Prosecutor sought extension of time by invoking the

proviso to sub-Section (4) of Section 36-A of the Act.

5. By the impugned order, the learned Special Judge, after

giving an opportunity of hearing to the Applicant, was persuaded to

grant two months extension to complete the investigation. The

observations in paragraph 5 of the impugned order spell out the

reasons which weighed with the learned Special Judge to exercise

the power to extend the period of detention by invoking the proviso

to sub-Section (4) of Section 36-A of the Act. Para No.5 is thus,

extracted below :

"5. Now the application has been fle by the Ld. PP with submissions of the investigation ofcer in the background of circumstances prevailed in lockdown situation is not in a position to fle the analysis report of the contraband from the

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laboratory. On perusal of application, it appears that the investigation ofcer has forwarded the request letter as well as memorandum letter to the laboratory almost seven times however, due to pandemic circumstances and due to pendency of analysis of other matters, the concern laboratory has not issued C.A.Report so far. Admittedly, the present circumstances, are not under the control of the investigation ofcer. No doubt the investigation ofcer has updated the court for his eforts for securing the C.A.Report in order to fle charge sheet so also it has been pointed out that some other accused persons are yet to be arrested as refected in the remand report. Under such circumstances, there are valid grounds for extending the period for fling chargesheet for further two months. Hence, order.

6. Mr. Khan, the learned Counsel for the Applicant,

submitted that the impugned order is legally unsustainable. A two-

fold submission was canvassed by the learned Counsel. First, the

report of the learned PP was not supported by the report of the

Investigating Ofcer, indicating the progress of the investigation.

Second, the non-availability of the report of the Chemical Analyser

has been consistently held to be not a justifable reason for not fling

the charge sheet within the stipulated period. The report of the

learned PP, thus, sufers from clear non-application of mind.

Consequently, the impugned order granting extension of time to

complete investigation for non-availability of the Chemical

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Analyser's report, also sufers from the vice of non-application of

mind.

7. The learned APP, on the contrary, urged that the fact that

the report of the Public Prosecutor (PP) was not accompanied by the

report of the Investigating Ofcer, is not of material signifcance.

The PP had submitted the report on the instructions of the

Investigating Ofcer. The learned APP further submitted that the

investigating agency has made an endeavour to obtain the CA

report by addressing as many as 7 reminders. Thus, having regard

to the accusation against, and the quantity of the contraband seized

from, the Applicant, the extension of time to complete the

investigation cannot be faulted at.

8. The learned APP further submitted that even if the case

of the Applicant is taken at par, yet there is no material to indicate

that after completion of 180 days, the Applicant had fled an

Application to "avail" default bail, before lodging the charge sheet.

Thus, the Applicant is not entitled to be released on bail.

9. I have carefully perused the report (Exhibit 14) fled by

the learned PP. The submission on behalf of the Applicant that the

singular reason for seeking extension of time to complete the

investigation and lodge the charge sheet beyond the period of 180

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days, was the non-availability of the CA report, is borne out by the

said report. It was categorically asserted in the report of the PP that

on 26th March, 2021, the seized samples were sent for analysis and,

despite seven reminders, the CA report was awaited. It is true that,

in the passing, it was asserted that the crime had wide

ramifcations and the other persons, who were found to be involved

in the crime, were yet to be arrested. However, the fact remains

that the non-availability of the CA report constituted the substratum

of the case for extension of time to complete the investigation.

10. Mr. Khan, learned Counsel for the Applicant, strenuously

submitted that the non-availability of the CA report is not a ground

which could sustain the prayer for extension of time to carry out the

investigation. Indeed, according to Mr. Khan, charge sheet could

have been lawfully fled without annexing the report of the chemical

analyser. In such a situation, the investigation can be said to have

been complete for all intent and purpose. Therefore, the report of

the learned PP, betrayed complete non-application of mind.

Resultantly, the impugned order whereby the time to carry out the

investigation was mechanically extended deserves to be quashed

and set aside, urged Mr. Khan.

11. To lend support to this submission, Mr. Khan placed

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reliance on a number of orders releasing the accused on default bail

and a judgment of a Division Bench of this Court in the case of

Manas Krishna T K V/s. State, the Police Inspector, Goa 1

12. The aforesaid submission of Mr. Khan appears well

meritted. In the case of Junaid Hussain Shaikh V/s. State of

Maharashtra2 in an identical fact-situation, where the charge

sheet could not be fled for want of CA report and time to carry out

investigation was extended on the said count, the learned Single

Judge of this Court held that the charge sheet which was complete

in terms of Section 173(2) of the Code, cannot be considered or held

as "inconclusive" merely because the CA reports were not available

though sought for. It was further observed that the report seeking

extension of time on the said count, therefore, did not demonstrate

that the PP had applied his mind, but only suggested that the

investigation was over but charge sheet was not fled for want of CA

report.

13. In the case of Rajesh Tulsidas Joshi V/s. The State of

Maharashtra3 another learned Single Judge of this Court, after

adverting to the judgments of the Supreme Court in the cases of

1 Cri. Misc. Application (Bail) No.88 of 2021 (F) 2 Bail Application No.259 of 2020 dt. 27th July, 2020 3 LD/VC/OCR/187/2020 dated 31st July, 2022

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Sanjay Kumar Kedia V/s. Narcotics Control Bureau 4 and Hitendra

Vishnu Thakur and Ors. V/s. State of Maharashtra and Ors. 5 did not

approve of the stand of the prosecution that the extension of time to

carry out the investigation was necessary as the CA report was

awaited. Noting that the investigation was complete in all other

aspects and the charge sheet was not fled only for the reason of

non-availability of the CA report, the learned Single Judge held that

the statutory right of the Applicant - accused therein to be released

on bail for failure to fle the charge sheet within the stipulated

period of 180 days could not have been defeated by grant of

extension for the reason that the charge sheet could not be fled for

want of CA report.

14. The aforesaid orders have been followed in the cases of

Dr. Reza Borhani Shidani V/s. State of Maharashtra 6 and Maduabuchi

Cosmos Igwe V/s. Narcotics Control Bureau and Anr. 7

15. In the case of Manas (Supra), the Division Bench of this

Court at Goa, considered the following question, on a reference :

"Whether in a case under the NDPS Act, the investigation

can be said to be complete within the period prescribed under

4 (2009) 17 SCC 631 5 (1994) 4 SCC 602 6 LD/VC/OCR No.212 of 2020 dated 14th August, 2020 7 LD/VC/OCR/257 of 2020 dated 14th September, 2020

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Section 167(2) of the Criminal Procedure Code (Cr.P.C.) when a

police report under Section 173(2) is fled before the Special Court

without any CA/FSL report along."

16. After an elaborate analysis, the Division Bench answered

the aforesaid question as under :

"Question No.(i) is answered by holding that even in an

NDPS case a police report containing the details prescribed under

Section 173(3) Cr.P.C., is a complete police report or a charge sheet

or a challan even if it is unaccompanied by a CA/FSL report. If such

police report is fled within the period stipulated under Section

167(2) Cr.P.C. read with Section 36-A(4) of the NDPS Act, the

accused cannot insist upon a default bail."

17. The aforesaid enunciation indicates that this Court has

consistently held that, in a case under the NDPS Act, 1985 the non-

availability of the CA report does not constitute a justifable ground

to seek an extension of time to complete the investigation and the

consequent detention of the accused. Nor can the charge sheet

submitted by the Investigating agency sans the CA/FSL report be

said to be incomplete or inconclusive. It is imperative to note that

having regard to the nature of the ofences and particularly the wide

ramifcations and deleterious consequences of the offences on the

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society, sub-Section (4) of Section 36-A extends the period of

detention from 90 days, prescribed under Section 167 of the Code,

to 180 days. The proviso further empowers the Special Court to

authorise the detention upto one year on the report of the Public

Prosecutor. The Special Court is, however, enjoined to satisfy itself

about the necessity of detention of the accused beyond the said

period of 180 days on the basis of the report of the Public

Prosecutor, which indicates the progress of the investigation and the

specifc reasons for such detention beyond 180 days. These

conditions are required to be strictly satisfed before the period of

detention is extended as the exercise of the power impinges upon

the personal liberty of the accused. The period of detention can

neither be extended as a matter of course. Nor for the mere asking.

The Special Court must be satisfed that the Public Prosecutor has

applied his mind and, in turn, be further satisfed with the progress

of the investigation and genuineness of the reasons for grant of

extension for detention of the accused beyond 180 days.

18. Reverting to the facts of the case, in the light of the

aforesaid exposition of law, it becomes abundantly clear that what

was mentioned in the report of the Public Prosecutor and weighed

with the learned Special Judge, was the non-availability of the CA

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report. The learned Special Judge, it seems, misdirected himself in

granting extension of the period of detention merely for non-

availability of the CA report. The impugned order granting

extension, therefore, deserves to be quashed and set aside.

19. As the learned APP submitted that the Applicant has not

availed default bail, by fling an Application, the Applicant was

directed to place certifed copy of the such Application, if any. The

Applicant placed on record the certifed copy of the Application

(Exhibit 17), which was preferred on 23 rd September, 2021 seeking

default bail under Section 167(2) read with Section 36-A of the Act.

Thus, it cannot be said that the Applicant had not availed the

default bail.

20. The conspectus of aforesaid consideration is that the

impugned order dated 17th September, 2021 deserves to be

quashed and set aside and, consequently, the Applicant is entitled

to be released on bail. Hence, the following order :

ORDER

(i) The Application stands allowed.

(ii) The impugned Order dated 17th September, 2021 extending

the period of investigation and detention of the accused by two

months stands quashed and set aside.

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(iii) The Applicant - Asif Abdul Memon who is arraigned in

C.R.No.115 of 2021 registered with New Panvel Police Station for the

ofences punishable under Section Sections 20(C) read with 8(c),

and Section 29 of the Act, be released on bail, upon furnishing a PR

bond in the sum of Rs.50,000/- and one or two sureties in the like

amount to the satisfaction of the learned Special Judge.

(iv) The Applicant shall furnish his permanent residential address

and other details, including cell phone number, to the Investigating

Ofcer within 7 days of his release.

(v) The Applicant shall not tamper with the prosecution evidence

and shall not give threat or inducement to any of the prosecution

witness/es.

(vi) The Applicant shall deposit his passport, if any, with the

Investigating Ofcer within a week from the date of his release.

(vi) The Applicant shall not leave India without the prior permission

of the Special Court.

                                              ( N.J.JAMADAR, J. )




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