Delhi High Court
Narcotics Control Bureau vs Naresh Kumar Jain on 2 November, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: October 25, 2010
Date of Order: 2nd November, 2010
+ Crl. Rev. P. No. 671/2010
% 02.11.2010
Narcotics Control Bureau ... Petitioner
Through: Mr. Rajesh Manchanda, Advocate
Versus
Naresh Kumar Jain ... Respondent
Through: Mr. Vikas Pahwa, Advocate with
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By the present petition, the petitioner Narcotics Control Bureau
has assailed order dated 11th October, 2010 whereby an application under
Section 36-A(4) of NDPS Act of the petitioner for extension of time for
investigation was dismissed by the Special Judge.
2. Brief facts relevant for the purpose of deciding this petition are
that the respondent an NRI was allegedly involved in money-laundering of the
money gained from drugs and bribery and his operations were spread in
various countries. Operation in the name of Khyber Pass, was launched in
order to nab all those persons involved in this crime. The prosecution found
involvement of the respondent in a large-scale laundering of the money
generated from sale of drugs and bribery cases. A case was registered
against the respondent in UAE being case No. 3452/07. The respondent was
also wanted in Italy in another case. He had also made transactions in USA
and the US government had forfeited an amount of US $ 3.4 million belonging
to respondent being narcotic laundered money. An operation snow blading
was carried out by the Organized Crime Agency of UK which unearthed links
of respondent/accused with Albanian drug traffickers in arranging money
laundering in countries viz. Italy, Dubai, USA and others. The respondent
absconded from Dubai and entered into India illegally through illegal route.
He was arrested by the petitioner bureau and the petitioner bureau started
investigation against the respondent after registering a case under NDPS Act.
The investigation could not be completed within 180 days as provided under
Section 36-A(4) of NDPS Act. Thereafter, the Narcotics Control Bureau
moved an application before the trial Court for extension of time by another
180 days. This application was dismissed by the trial Court vide order dated
4th June, 2010. Against this order of dismissal of the application, petitioner
bureau approached this Court and this Court vide order dated 16 th July, 2010
allowed the petition and extended time by another 90 days from 16 th July,
2010. The investigation still could not be completed and another application
was made by the NCB before the learned Special Judge for further extension
of time for investigation. The learned Special judge vide order dated 11th
October, 2010 dismissed this application on the ground that vide order dated
16th July, 2010, this Court while extending the time for investigation, granted
only 90 days extension from 16th July, 2010 and it would not be in the fitness
of things for the Special Judge to extend the time for investigation for any
further period beyond 90 days as extended by the High Court. The Special
Judge being subordinate to the High Court was bound to implement the
directions of the High Court.
3. It is apparent from the order of the trial Court that the trial Court
did not reject the application on merits and considered that it had no power to
even consider the application on merits in view of the fact that the earlier
extension granted by the High Court was only for 90 days.
4. It is submitted by the Counsel for the petitioner that at the time
of earlier grant of extension of time for investigation, the Letters Rogatories
had already been sent to the different countries where the operation of the
accused was spread. Response to one of the Letter Rogatories was received
only from the US government during the extended period that also on 7 th
October, 2010 and the learned Special Judge was informed about this
response however, learned Special Judge considered itself powerless in
extending the time. It is submitted that there was no jurisdictional bar on the
learned Special Judge on considering the application despite the fact that
High Court had extended the time only for 90 days in the earlier petition. On
the other hand it is submitted by the Counsel for the respondent that once the
High Court has considered the request of the prosecution for extension of
time and the prayer of the prosecution to extend the time by another 180 days
was not allowed and only extension of 90 days was given, the High Court
cannot entertain the second petition for extension of further time. The other
limb of the argument of the respondent is that there was no justification for
extension of time as the State Counsel/Public Prosecutor had failed to made
out a case for extension of time. There was no progress in investigation and
the status of investigation was same as it was on the last hearing therefore
this petition should be dismissed.
5. The first argument made by the Counsel for the respondent is
not tenable. This argument was considered by the Supreme Court in Mustaq
Ahmed Mohammed Isak & Ors. v. State of Maharashtra AIR 2009 SC 2772 in
context of MCOCA wherein Supreme Court observed as under:
15. There is nothing in the language of second proviso
inserted in Section 167(2) of the Code by Section 21(2) of the
Act to indicate that the power of extension can be exercised
only once as contended by the appellants. Para 30 of the
Hitendra Thakur's case (supra) on which the appellants place
reliance did not deal with the present issue i.e. whether the
power can be exercised more than once under the proviso.
6. The provision of Section 36 (A)-4 of NDPS are akin to Section
167(2) of Cr.P.C. and I consider that the law laid down by the Supreme Court
in above case is equally applicable in NDPS cases while considering
extension of time for investigation. I also feel that the learned Special Judge
should have decided the application on merits instead of considering that it
had no jurisdiction. Whenever an application for extension of time comes and
the time is not extended to the full period as available in the provision, that
does not mean that no application for extension of remaining period of time
can be entertained by the Special judge. The decision of the High Court
extending time for 90 days at the initial stage did not debar the prosecution
from seeking further extension on the ground that the investigation could not
be completed, as observed by Supreme Court power can be exercised more
than once.
7. The prosecution has made out a valid case for grant of
extension of time. Letter Rogatories were sent to different countries.
Response of the countries had to be awaited and it is only when the countries
responded that the team of investigators can be sent to that countries to do
further investigation. If the case had been that despite receipt of response to
the Letter Rogatories, the investigating agency had been sitting idle one could
understand that investigating agency was not keen to investigate the matter
and was only seeking extension of time to prevent the accused from enjoying
statutory bail. It is not so in this case. It is submitted by the Counsel for the
petitioner that the team of officers was ready to go to USA and reminders
were being sent to other governments to expedite the response. The Letter
Rogatories and the teams of the bureau were already in place to visit these
countries as and when response is given. It is not disputed that the spread of
accused activities was in different countries and prosecution has been
launched against the accused in Dubai and Italy, while US government has
forfeited the amount of 4.3 million US$. In order to do the complete
investigation, it would be necessary for the prosecution to take assistance of
police of these countries in knowing the extent of operations of
respondent/accused and to bring forth all facts before the Special judge so
that a proper and effective trial can take place. The sole purpose of the
legislature in providing for extension of time of limitation is that there should
be no constraints in appropriate cases on the investigating agency in
investigation of the case while the accused is kept in judicial custody.
8. I consider that this is an appropriate case where time for
investigation should be further extended so that the prosecution is able to
complete the investigation. The accused in this case was arrested on 6 th
December, 2009. The total period for which the investigation can be carried
while the accused is kept in custody after extension shall be 180+180 days
ie.. 360 days. The time for investigation is extended upto 1 st December, 2010
and in case the investigation is not complete and challan is not filed by that
day, the legal consequences shall follow.
The petition stands disposed of in above terms.
November 02, 2010 SHIV NARAYAN DHINGRA, J.
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