Rangalal Mavai vs State Of West Bengal
2021 Latest Caselaw 2627 Cal

In the High Court at Calcutta Criminal Appellate Jurisdiction Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CRR No. 324 of 2021

Rangalal Mavai Vs.

                               State of West Bengal

For the Petitioner        :Mr.   Ayan Basu, Adv.
                           Mr.   P.K. Das, Adv.
                           Mr.   Sourav Bera, Adv.
                           Mr.   Sumit Routh, Adv.

For the State             :Mr. Ranabir Roy Chowdhury, Adv.
                           Mr. Mainak Gupta, Adv.

Heard on                  :04.03.2021.

Judgment on               :08.04.2021.

Subhasis Dasgupta, J:-

The impugned order dated 19th December, 2020, passed by

Learned Additional District and Sessions Judge, Special Court, Tamluk,

Purba Medinipur, in NDPS case being TR-(NDPS) 05/2020, extending the

period of investigation under Section 36-A (4) proviso of Narcotic Drugs

and Psychotropic Substances Act, and thereby rejecting the prayer of

statutory bail for the petitioner (default bail) is the subject of challenge in

this revisional application.

Petitioner was brought arrested on 27.06.2020 by Bhagawanpur

P.S. for the alleged recovery of sixty three (63) kg. of Ganja, which was

above the commercial quantity. During investigation the samples of the

seized articles after necessary collection were forwarded for chemical

examination. The report of the said examination could not be collected by

the Investigating Officer in spite of sending reminder, even by D.O. for

the purpose. The investigation of the case was almost completed, but it

was due to the delay in completion of the report of expert, the charge-

sheet could not be submitted against the petitioner/accused person.

On 17th December, 2020, the Investigating Officer of this case

initiated a prayer for extension of statutory period of investigation for

submission of charge-sheet. After receipt of such prayer, the learned

court below proceeded to pass an order dated 17th December, 2020,

directing the learned Public Prosecutor-in-charge to submit a report by

18th December, 2020, in justification of the prayer of Investigating

Officer, as contemplated under Section 36-A (4) proviso of NDPS Act.

On the scheduled date i.e. 18th December, 2020, learned Public

Prosecutor-in-charge submitted his report regarding extension of

statutory period of investigation of the instant case in context with the

prayer of the Investigating Officer, made separately on 17th December,

2020. The prayer for extension of investigation beyond the statutory

period was taken up for hearing on 19th December, 2020, in presence of

learned advocate representing the accused/petitioner as well as other

accused persons, and the learned advocate representing the State for the

purpose.

The learned court below, however, by its order dated 19th

December, 2020, extended the period of investigation beyond the

statutory period in application of the provision of Section 36-A (4) proviso

of NDPS Act, for a further period of 90 days.

Upon appreciating the progress of investigation together with the

reasons, causing delay in the submission of the charge-sheet due to non-

submission of chemical report from the expert of State Drugs Control &

Research Laboratory, where the collected samples were sent for chemical

examination and report, the prayer for default bail was refused by the

learned court below holding that there was fair possibility of tampering of

evidence in the event of accused being released on bail, and further that

accused/petitioner may flee away from the clutches of the court.

Mr. Ayan Basu, learned advocate for the petitioner, assailing the

order impugned submitted that the learned court below had improperly

exercised its jurisdiction, while extending the period of investigation

beyond statutory period without confering to legal requirements of law,

as specifically enunciated in Section 36-A (4) proviso of NDPS Act. Mr.

Basu contended that the legislator expected that the investigation be

completed with utmost promptitude, but where it became necessary to

seek some more time for completion of investigation, the Investigating

Officer would submit himself to the scrutiny of learned Public

Prosecutor, and satisfy the progress of investigation and furnish reasons

for seeking further custody of an accused.

The learned Public Prosecutor, according to Mr. Basu, was

expected to independently apply his mind to the request of Investigating

Officer before submitting a report to the court for extension of time with

a view to enable the Investigating Officer to complete the investigation.

Adverting to the report of learned Public Prosecutor, submitted on

18th December, 2020, Mr. Basu submitted that there left nothing about

putting any endorsement of the learned Public Prosecutor himself, or

signing even the report, while seeking for further investigation, and as

such, such report of the learned Prosecutor could not be regarded to be a

product of due application of mind of the learned Public Prosecutor, as

contemplated under Section 36-A (4) proviso of the NDPS Act.

Mr. Basu, was of the view that the role of Public Prosecutor was

not merely a post office, or merely a forwarding agency, and he was

expected to do something more revealing his due application of mind,

while proposing for further investigation beyond statutory period.

Thus, for seeking extension of time under Section 36-A (4) proviso

of NDPS Act, the Public Prosecutor was under the obligation to put his

independent application of his mind to the request of the Investigating

Agency indicating therein the progress of the investigation, and

disclosing also the justification for keeping the accused in further

custody to enable the Investigating Agency to complete the investigation.

Mr. Basu, strenuously contended that jurisdiction of the learned

court below having improperly exercised, granting of extension of period

of investigation beyond statutory period, without strictly adhering to the

legal requirements of the law, as contemplated in the Act itself; the right

of petitioner to be released on bail on account of default of the

prosecution became indefensible right, and that could not be defeated by

any reasons, other than those contemplated in the Section itself.

Reliance was placed by Mr. Basu, on a decision reported in 1994

(4) SCC 602 delivered in the case of Hitendra Vishnu Thakur & Ors.

Vs. State of Maharashtra, in order to contend that the stand taken by

the learned Public Prosecutor in the given facts and circumstances of

this case could hardly be considered to have applied his mind to the

request of the Investigating Agency, and rather acted as "post office". The

learned court below was deprived of the opportunity of scrutinizing the

report before granting extension. According to Mr. Basu, while

submitting report, the learned Public Prosecutor did not even endorse on

the application with any comments to indicate as to whether he was

agreeing with the statements contained in the application, submitted by

the Investigating Officer himself, praying for further investigation or not.

Referring another decision reported in 2009 (17) SCC 631

rendered in the case of Sanjay Kumar Kedia @ Sanjay Kedia Vs.

Intelligence Officer, Narcotics Control Bureau & Anr., Mr. Basu

submitted that the ratio of the decision given in Hitendra Vishnu

Thakur (Supra) by the Apex Court was reinforced in such decision while

granting default bail upon due appreciation of the infraction of the

provisions of law, as contained in Section 36-A (4) proviso of NDPS Act.

Mr. Ranabir Roy Chowdhury, learned advocate representing State,

controverting the submission raised by the petitioner, submitted that the

court below had rightly extended the period of investigation beyond the

statutory period upon duly satisfying the requirements, contained in the

Act itself. According to Mr. Roy Chowdhury, the entire endeavour of the

petitioner was to indicate the laches, or discrepancies in the report of

Public Prosecutor, which was nothing but a question of form, rather than

substance. The question of substance, according to Mr. Roy Chowdhury,

should be prevailed over in the given circumstances of this case, instead

of making restrictive application of the report of the Public Prosecutor

emphasizing more upon the question of form.

Mr. Roy Chowdhury, in support of his contention referred a

decision reported in 2019 (5) SCC 178 : 2019 (2) SCC (Cri) 472,

delivered in the case of State of Maharashtra Vs. Surendra Pundlik

Gadling and Ors., wherein emphasis was led upon the substance of the

report of the Public Prosecutor, rather than its form. Mr. Roy Chowdhury

was of the view that absence of endorsement of the learned Public

Prosecutor in his report, or lack of putting his signature therein might be

infirmities relatable to the form, rather than the substance it contained

in the report, which was grossly emphasized in the case of Hitendra

Vishnu Thakur (Supra), and as such infirmities in the form should not

entitle the petitioner to the benefit of the default bail, when in substance,

there has been sufficient application of mind by the learned Public

Prosecutor by himself in his report, so submitted.

The grounds set out in the report of the Public Prosecutor having

independently and individually extracted from the report of the

Investigating Officer, from his prayer for further investigation, according

to Mr. Roy Chowdhury, would certainly fall within the category of

compelling reasons, as enunciated in the case of Sanjay Kedia (Supra).

Having considered the submissions of both sides, it appears that

the points so raised are squeezed to one and only issue as to whether the

learned court below was justified in extending the period of investigation

beyond the statutory period, and while according such extension,

whether the learned court below satisfied the legal requirements of law,

as specifically contemplated in the Act itself, and rightly rejected the

prayer for default bail or not.

Before addressing the issue, a reference to the relevant provisions

of the law is of utmost necessity, which may be mentioned as hereunder:

"provided further that, if it is not possible to complete the

investigation within the said period of 180 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 investigation and the specific reasons for detention of the

accused beyond said period of 180 days."

While submitting a report, the learned Public Prosecutor concerned

is obliged to satisfy twin requirement of law: (a) the report of the Public

Prosecutor will be specific, conspicuous in indicating the progress of

investigation, (b) the report of the Public Prosecutor must spelt out

reasons for the detention of the accused person beyond statutory period

of 180 days.

Upon sufficient compliance of the twin requirements of law, what is

supposed to be discharged by learned Public Prosecutor himself in

connection with his prayer for extension of period of investigation beyond

the statutory period, designated court would in turn record its

satisfaction in respect of the report of the Public Prosecutor, while

extending the period of investigation.

From the plain reading of the aforesaid Section, following four

matters are of highest significance, which may be considered to be the

parameters for making due consideration of the prayer for further

investigation under NDPS Act:

(i) It is not possible to complete the investigation within the period

of 180 days,

(ii) A report to be submitted by the learned Public Prosecutor,

(iii) The said report would indicate the progress of investigation,

and specific reasons for detention of accused beyond the period of

180 days,

(iv) Satisfaction of the court to be recorded in respect of the report

of the Public Prosecutor.

It is thus without any controversy that extension of period of

investigation must be limited to the progress of investigation, so that

there could be submission of charge-sheet within such extended period

of time, and such consideration will be of paramount consideration

restricting to the Act itself, but not controlled by any other provisions of

the Act itself.

The use of expression "on the report of the Public Prosecutor

indicating the progress of investigation and specific reasons for the

detention of the accused beyond the statutory period." are highly

important, and indicative of the legislative intent not to keep the accused

in the custody unreasonably and to grant extension of investigation on

the report of Public Prosecutor.

The report of the Public Prosecutor undoubtedly is not merely a

formality, but a very vital report. It is not merely the question of form in

which the request for extension of investigation under the Act is made,

but one of substance. Therefore, much emphasis has to be put on

substance, rather than its form, in which the request for extension of

investigation has been made.

At the cost of repetition it may be mentioned over here that on

17.12.2020, the Investigating Officer himself made a prayer for further

investigation indicating the progress of investigation together with

reasons causing delay in investigation, and thus offered reasons therein

for the detention of the accused beyond the statutory period. Such prayer

was addressed to the learned court below, and it bears the endorsement

of the learned Public Prosecutor-in-charge, who put his signature on the

same on 17th December, 2020, with an endorsement as "seen".

Upon receipt of the prayer, the learned court below proceeded to

pass an order dated 17th December, 2020, directing the learned Public

Prosecutor to submit a report on such issue by 18th December, 2020. By

filing a put up petition dated 18th December, 2020, the report of the

Public Prosecutor-in-charge, as called for by learned court below, was

submitted serving a copy upon the learned advocate representing the

petitioner/accused, who received the copy putting his endorsement as

"seen" with objection. Therefore, there has been no violation of natural

justice.

Upon perusal of the impugned order, it appears that the learned

advocate representing the petitioner participated in the hearing process

pertaining to the prayer for further investigation, after responding to the

service of notice of report of the Public Prosecutor, dated 18th December,

2020, proposing extension of investigation beyond statutory period.

There has been sufficient demonstration in the report of the Public

Prosecutor about the progress of the investigation, which was almost

completed except collection of report from expert, to whom the samples,

from seized articles were sent for chemical analysis and report.

Here in this case alleged recovery relates to 63 Kg. Ganja in all,

which was above the commercial quantity, and samples from the

contraband after having collected were sent to Director of State Drugs

Control & Research Laboratory, 2, Convent Lane, Kolkata-700015, for

chemical examination and report, which was awaited.

The learned Public Prosecutor after independent application of his

mind to the request of the Investigating Agency, not only revealed the

progress of the investigation, but also disclosed justification for keeping

the accused in further custody to enable the Investigating Agency to

complete the investigation, otherwise the petitioner/accused person will

be free from clutches of the court, if released on bail together with

possibility of tampering the evidence in this case.

True it is that learned Public Prosecutor in his individual report

never made any comment agreeing with the Investigating Officer for

extension of the investigation, but when the learned Public Prosecutor

himself submitted an individual report upon extracting the statements

from the I.O. of this case, from his prayer for further investigation, in the

absence of anything others to the contrary being shown to exist, it would

be sufficient enough to construe that the report, so submitted by the

learned Public Prosecutor was a product of his application of mind, done

after making due scrutiny of the prayer of the I.O. for further

investigation, wherein the progress of investigation coupled with the

reasons supportive of further detention was disclosed.

Absence of putting signature or any conspicuous endorsement of

learned Public Prosecutor himself presenting the report before the court

below may be an error, or irregularity, sufficient enough to be considered

to come within the category of "form" rather than its "substance"

contained in the report of the learned Public Prosecutor itself.

The learned court below, as such cannot be considered to have

overlooked and ignored the requirements of valid report of the learned

Public Prosecutor, as contemplated in the Act itself.

Whether the learned Public Prosecutor labels his report, as a

report, or as an application for extension, would not be of much

consequence, so long it demonstrates on the face that he had applied his

mind, and he was satisfied with the progress of the investigation and the

genuineness of the reasons for the grant of extension to keep the accused

in further custody, as envisaged in the Act itself.

Pursuant to the order of the learned court below, when learned

Public Prosecutor separately and individually submitted his report,

satisfying the twin requirements of law, after making scrutiny of the

statement from the I.O. revealed from his prayer for further investigation,

it would tantamount to application of mind of the learned Public

Prosecutor, while submitting his report in justification of extension of the

period of investigation beyond statutory period.

For the reasons as aforesaid, the right of the petitioner to be

released on bail, on account of the default of the prosecution, was rightly

refused by the learned court below, upon extending the period of

investigation in due application of the provisions of Section 36-A (4)

proviso of NDPS Act.

With this discussion and observation, the instant revisional

application fails being without any merits.

The instant revisional application stands disposed of.

Urgent certified copy of this judgment, if applied for, be made

available to the parties upon compliance with requisite formalities.

(Subhasis Dasgupta, J.)