Karnataka High Court

Blessing Chinonye Oboh vs Union Of India on 5 April, 2023

Bench: S Vishwajith Shetty

                                                   -1-
                                                             CRL.RP No. 281 of 2023
                                                         C/W CRL.RP No. 282 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 5TH DAY OF APRIL, 2023

                                                 BEFORE

                             THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

                             CRIMINAL REVISION PETITION NO.281 OF 2023

                                               C/W
                             CRIMINAL REVISION PETITION NO.282 OF 2023

                      IN CRL.R.P. NO.281/2023

                      BETWEEN:

                      1.   BLESSING CHINONYE OBOH
                           D/O. CHINOYE OBOH
                           AGED ABOUT 23 YEARS
                           R/AT H.NO.359, 2ND FLOOR,
                           PHASE 1A, OM VIHAR,
                           GALI NO.22, UTTAM NAGAR,
                           NEW DELHI - 110 059.
                           PERMANENT ADDRESS
                           R/O. 77 STREET, ASABA,
                           DELTA STATE, NIGERIA - 320 242.

                      2.   CHARITY VICTORIA AFFIA,
Digitally signed by        S/O. JOSEPH AFFIA,
MAHALAKSHMI B M            AGED ABOUT 40 YEARS,
Location: HIGH             R/AT CHAPORA UTTAM NAGARA,
COURT OF
KARNATAKA                  NEW DELHI - 110059
                           PERMANENT ADDRESS
                           AFFIA STREET, EBONYI STATE
                           NIGERIA.                                  ... PETITIONERS

                      (BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

                      AND:

                      UNION OF INDIA
                      BY INTELLIGENCE OFFICER,
                      NARCOTICS CONTROL BUREAU (NCB)
                      BANGALORE ZONAL UNIT,
                      RAMANNA GARDEN, KATTIGENAHALLI
                              -2-
                                        CRL.RP No. 281 of 2023
                                    C/W CRL.RP No. 282 of 2023




BAGALUR MAIN ROAD,
YELHANKA POST,
BANGALORE - 560 063.                            ... RESPONDENT

(BY SRI M.R. BALAKRISHNA, C.G.C.)

      THIS CRL.R.P. IS FILED UNDER SECTION 397 R/W 401 CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 17.11.2022 PASSED BY
THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE (NDPS), (CCH-33), BENGALURU IN NCB
F.NO.48/1/13/2022/BZU      (NOW    SPL.C.C.NO.532/2023)   AND
CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE
RESPONDENT UNDER SECTION 36(A)(4) OF N.D.P.S. ACT.

IN CRL.R.P. NO.282/2023

BETWEEN:

1.   BLESSING CHINONYE OBOH
     D/O. CHINOYE OBOH
     AGED ABOUT 23 YEARS,
     R/AT H.NO.359, 2ND FLOOR
     PHASE 1A, OM VIHAR,
     GALI NO.22, UTTAM NAGAR,
     NEW DELHI - 110 059
     PERMANENT ADDRESS
     R/O. 77 STREET, ASABA,
     DELTA STATE,
     NIGERIA - 320 242.

2.   CHARITY VICTORIA AFFIA,
     S/O. JOSEPH AFFIA,
     AGED ABOUT 40 YEARS,
     R/AT CHAPORA UTTAM NAGARA,
     NEW DELHI - 110 059
     PERMANENT ADDRESS
     AFFIA STREET, EBONYI STATE
     NIGERIA.                                   ... PETITIONERS

(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

AND:

UNION OF INDIA.
BY INTELLIGENCE OFFICER,
NARCOTICS CONTROL BUREAU (NCB)
                                 -3-
                                          CRL.RP No. 281 of 2023
                                      C/W CRL.RP No. 282 of 2023




BANGALORE ZONAL UNIT,
RAMANNA GARDEN, KATTIGENAHALLI,
BAGALUR MAIN ROAD,
YELHANKA POST,
BANGALORE - 560 063.                               ... RESPONDENT

(BY SRI M.R. BALAKRISHNA, C.G.C.)

      THIS CRL.R.P. IS FILED UNDER SECTION 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 17.11.2022 PASSED BY
THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL     JUDGE     (NDPS),    (CCH-33),   BENGALURU     IN
SPL.C.C.NO.532/2023      (NCB   F.NO.48/1/13/2022/BZU)   AND
CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE
PETITIONERS UNDER 167(2) OF CR.P.C.

     THESE PETITIONS COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

These two criminal revision petitions arise out of the

orders dated 17.11.2022 and 03.03.2023 passed by the XXXIII

Additional City Civil and Sessions Judge and Special Judge

(NDPS), Bengaluru in Spl. C.C. No.532/2023 and therefore with

the consent of the advocates appearing on both sides, they are

heard together and disposed of by a common order.

2. Heard learned counsel appearing for the petitioners

and learned Central Government Counsel for the respondent.

3. Facts leading to the filing of these revision petitions,

narrated briefly, are:

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

The petitioners, who are arraigned as accused Nos.6 and

8 in Spl. C.C. No.532/2023 pending before the Court of XXXIII

Additional City Civil and Sessions Judge and Special Judge

(NDPS), Bengaluru for the offence under Sections 8(c), 21(c),

23(c), 28 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'the NDPS Act'), were arrested

in the aforesaid case and remanded to judicial custody on

29.05.2022. In the said proceedings, the prosecution had filed

an application under Section 36A(4) of the NDPS Act seeking

extension of time for completion of investigation and filing the

charge-sheet. The said application was opposed by the

accused. The Trial Court by order dated 17.11.2022 allowed the

said application and extended the time by a further period of 90

days for completion of investigation and filing the charge-sheet.

The said order is questioned by accused Nos.6 and 8 in Crl. R.P.

No.281/2023 before this Court.

Accused Nos.6 and 8 had also filed an application under

Section 167(2) of Cr.P.C. seeking statutory bail on the ground

that the prosecution had failed to file the charge-sheet within

the stipulated period of 180 days. The said application was

dismissed by the Trial Court on 03.03.2023 and as against the

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

said order, accused Nos.6 and 8 have preferred Crl.R.P.

No.282/2023 before this Court.

4. Learned counsel appearing for the petitioners

submits that the application under Section 36A(4) of NDPS Act

has been filed in the present case by the Investigating Officer

and not by the public prosecutor as provided under the proviso

to Section 36A(4) of the NDPS Act and therefore the same is

bad in law. In support of his contention, he has placed reliance

on the judgments of the Hon'ble Supreme Court in the case of

Jigar @ Jimmy Pravinchandra Adatiya Vs. State of

Gujarat reported in 2022 SCC Online SC 1290, Sanjay

Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer,

Narcotics Control Bureau and another reported in (2009)

17 SCC 631 and the order passed by this Court in W.P.

No.11763/2021 disposed of on 22.07.2021 (Marcel Kuyo

vs. State).

5. Per contra, learned Central Government Counsel

appearing on behalf of the respondent submits that the

application under Section 36A(4) of the NDPS Act though was

filed in the name of the Investigating Officer, the same was

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

certified and endorsed by the public prosecutor and therefore,

there is application of mind on the part of the public prosecutor

in filing the application which complies the requirement of the

provisions of law. He submits that the said application is

therefore required to be construed as an application filed by the

public prosecutor and not by the Investigating Officer and prays

to dismiss the criminal revision petitions filed by the accused.

6. I have carefully considered the arguments

advanced by learned counsel on both sides and perused the

material on records.

7. The application under Section 36A(4) of the NDPS

Act has been produced by the petitioners and from the perusal

of the same, it is seen that the said application was filed by the

Investigating Officer and the public prosecutor has only counter

signed the same, before the said application was submitted to

the Court. A reading of the said application would go to show

that the progress made in the investigation has not at all been

indicated. The proviso to Section 36A(4) of the NDPS Act

specifically states that in the event, if the investigation is not

completed within the specified period of 180 days, the Special

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

Court may extend the said period upto one year on the report

of the public prosecutor indicating the progress of investigation

and specifying the reasons for detention of the accused persons

beyond the said period of 180 days. In the present case, there

is no mention in the application about the progress of the

investigation, but only the reason for extension of time for

completion of investigation has been mentioned. Therefore, the

application filed in the present case does not fulfill the

requirement of law.

8. In addition to the same, undisputedly, the

application is filed by the Investigating Officer and not by the

public prosecutor and that the said application has been only

counter signed by the public prosecutor before the same was

submitted to the Court, which does not fulfill the requirement of

law.

9. The law in this regard is well settled by the Hon'ble

Supreme Court in the case of Hitendra Vishnu Thakur Vs.

State of Maharashtra reported in (1994) 4 SCC 602.

Following the said judgment, the Hon'ble Apex Court in the

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

case of Jigar @ Jimmy Pravinchandra Adatiya, at paragraph

No.29 has observed as under:

             "29. The     said    proviso         came         up    for
     consideration      before    this    Court     in     the      case

of Hitendra Vishnu Thakur. In paragraph 23 this Court held thus:

"23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in

- 10 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "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" as occurring in clause (bb) in subsection (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no

- 11 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court 'shall' release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation.

Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the 'default' of

- 12 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub-section (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr. Madhava Reddy or the Additional Solicitor General Mr. Tulsi that even if the public prosecutor 'presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be rea1d and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section,

- 13 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by

- 14 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."

[emphasis added]

10. The law laid down by the Hon'ble Supreme Court in

the case of Hitendra Vishnu Thakur is also reiterated by the

Hon'ble Supreme Court in the case of Sanjay Kumar Kedia @

Sanjay Kedia.

11. This Court in W.P. No.11763/2021, in the case of

Marcel Kuyo at paragraph No.10, has observed as under:

"10. Perusal of the said application filed by the prosecution under Section 36A(4) of the NDPS Act which is made available to this Court goes to show that the application is not accompanied by the report of the Public Prosecutor. The proviso to Section 36A(4) of the NDPS Act would make it very clear that the application seeking extension of time has to be filed by the Prosecutor supported by the report of the Public Prosecutor indicating the progress of the investigation and the specific

- 15 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

reasons for the detention of the accused beyond the period of 180 days. Unless compelling reasons are made out, the trial Court cannot casually extend the time provided by the statute to complete the investigation. The Public Prosecutor on the basis of the records submitted by the Investigating Officer is required to independently apply his mind and prepare a report with regard to status of the investigation and he is also required to make out a case of compelling reasons for extension of time to complete the investigation."

12. In the present case, the application filed under

Section 36A(4) of the NDPS Act seeking extension of time

cannot be said to have been filed in compliance with the

requirements of law laid down in the above referred cases.

13. Under the circumstances, the Trial Court was not

justified in allowing the application filed by the prosecution

under Section 36A(4) of the NDPS Act and therefore, the said

order cannot be sustained.

14. Undisputedly, the charge-sheet in the present case

has not been filed within the stipulated period of 180 days from

the date the petitioners were remanded to the judicial custody.

- 16 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

The extension of time by the trial Court under Section 36(A)(4)

for completion of investigation and filing charge sheet is held to

be bad for the reasons aforesaid. Under the circumstances, the

order passed by the Trial Court rejecting the application filed by

the petitioners under Section 167 (2) of Cr.P.C. is required to

be set-aside and consequently, the petitioners/accused Nos.6

and 8 are granted for statutory bail under Section 167 (2) of

Cr.P.C. subject to conditions. Accordingly, the following:

ORDER i. The criminal revision petitions are allowed.

ii. Order dated 17.11.2022 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru in Spl. C.C. No.532/2023 on the application filed by the prosecution under Section 36A(4) of the NDPS Act seeking extension of time for competition of investigation and filing the charge-sheet is set-aside and consequently, the said application stands rejected.

iii. Order dated 03.03.2023 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru in Spl. C.C. No.532/2023 on the application filed by the petitioners under Section 167 (2) of Cr.P.C. is

- 17 -

CRL.RP No. 281 of 2023 C/W CRL.RP No. 282 of 2023

set-aside and consequently, the said application stands allowed.

iv. The petitioners shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakh only) each, with two sureties for the likesum to the satisfaction of the trial Court.

v. The petitioners are directed to surrender their passports before the Trial Court and they shall not leave the jurisdiction of the Trial Court without prior permission of the said Court.