Madhya Pradesh High Court

Dinesh vs The State Of Madhya Pradesh on 21 September, 2021

Author: Subodh Abhyankar

1
M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

THE HIGH COURT OF MADHYA PRADESH,INDORE BENCH
Single Bench : Hon'ble Shri Justice Subodh Abhyankar
M.Cr.C. No. 38064 / 2021
(Dinesh Agrwal and 02 others Vs. State of Madhya Pradesh)
Cr.R. No. 1838 / 2021
(Ayub Qureshi Vs. State of Madhya Pradesh)
M.Cr.C. No. 44843 / 2021
(Rajak Vs. State of Madhya Pradesh)

1 Parties Name Dinesh Agrawal &others in M.Cr.C. 38064/2021
Ayub Qureshi in Cr.R.No 1838/2021
Rajak in M.Cr.C.No.44843/2021
vs.
State of Madhya Pradesh
2 Date of Order 21st of September, 2021
3 Whether approved Yes
for reporting
4 Name of counsel Shri C.L. Yadav, learned Sr. Counsel with Shri
for the
Neelesh Agrawal, Shri Vikas Yadav and Shri
parties
A.K. Saraswat for the applicants.

Shri Ranjeet Sen, Govt. Advocate and Shri A.S.
Parihar, Panel Lawyer for the respondent/State.

5 Law laid down A. The provisions of S.36-A(4) of NDPS Act
are mandatory and an application for
extension of time to file charge sheet cannot
be filed by an Investigating Officer as the said
power/duty lies with the Public Prosecutor
only.
B. An application for extension of time to
file the charge sheet u/S36-A(4) has to be
filed in a timely manner, i.e. within
reasonable period of one or two weeks before
the expiry of time provided to file the charge
sheet so that the trial court can apply its mind
to the latest update and status of the
2
M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

investigation for the purposes of extension of
time.
C. A stale, around three months old
application considered by the learned judge of
the trial court for extending the time to file the
charge sheet, in itself is a ground, sufficient
enough to hold that there was non-application
of mind on the part of the learned judge of the
trial court.
D. Judgment relied upon Nazir Ahmad v. King
Emperor reported as AIR 1936 PC 253(2)
which has also been followed by the Supreme
Court in the case of State of U.P. v. Singhara
Singh, AIR 1964 SC 358 and in the case of
State of U.P. v. Singhara Singh, AIR 1964
SC 358. (Para No.15)
E. Abdul Wahab K. v. State of Kerala, (2018)
18 SCC 448. (Para No.17)

6 Significant 14,15,16,17, 20 & 21
paragraph

(Subodh Abhyankar)
Judge
3
M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH

SINGLE BENCH
M.Cr.C. No. 38064 / 2021

(Dinesh Agrwal and others Vs. State of Madhya Pradesh)

Cr.R. No. 1838 / 2021

(Ayub Qureshi Vs. State of Madhya Pradesh)

M.Cr.C. No. 44843 / 2021
(Rajak Vs. State of Madhya Pradesh)

--------------------------------------------------------------------------
Coram :
Hon'ble Shri Justice Subodh Abhyankar
---------------------------------------------------------------------------
Shri C.L. Yadav, learned senior counsel with Shri Neelesh
Agrawal, learned counsel for the petitioners in M.Cr.C. No. 38064-
2021.
Shri Vikas Yadav, learned counsel for the petitioner in Cr.R.
No.1838-2021
Shri A.K. Saraswat, learned counsel for the applicant in M.Cr.C.
No.44843 / 2021
Shri Ranjeet Sen, learned Govt. Advocate and Shri A.S. Parihar,
learned Panel Lawyer for the respondent /State.
-------------------------------------------------------------------------------------------
Whether approved for reporting : Yes

ORDER

( Passed on 21/ 09 /2021)

All the aforesaid petitions have arisen out the same crime

number, therefore, they are heard analogously and are being

decided and disposed of by this common order. For the purpose of

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

this order, the facts as narrated in M.Cr.C.No.38064/2021 are

being considered.

2. This is the petition-M.Cr.C.No.38064-2021 has been filed under

Section 482 of the Cr.P.C. for quashing the order dated 2.7.2021,

whereby the respondent State's application filed under Section 167(2)

of Cr.P.C. read with Section 36-A(4) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred as the Act) for

extension of time to complete the investigation has been allowed. The

petition is also filed against the order dated 7.7.2021 whereby the

petitioners' application for default bail filed under Sections 167 (2)

Cr.P.C. read with Section 34 -A(4) of the Act has been rejected.

3. Brief facts of the case are that the petitioners have been arrested

on 5.1.2021, 23.1.2021 & 29.1.2021 in connection with an offence

under Sections 8/21 and 8/29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 wherein 70 kg of Mephedrone MD Drugs, the

commercial quantity of which is 50 grams only, worth Rs.70 Crores

and cash to the tune of Rs.13,03,650/- has been recovered from the

accused persons.

4. The petitioners Dinesh Agrawal, Akshay and Chiman in

M.Cr.C.No.38064/2021 have been arrested on 5.1.2021, the petitioner-

Ayub Qureshi in Cr.R.No.1838/2021 has been arrested on 23.1.2021

petitioner Rajak has been arrested on 29.1.2021.

5. The case of the petitioners is that after their arrest on 5.2.2021,

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

as the investigation could not be completed within 90 days' time, on

5.4.2021 an application (Annexure P/3) was filed by the Investigating

Officer for extension of time for a further period of 90 days, this is

despite the fact that under Section 36-A(4) of the Act, 180 days time is

already provided for filing of the charge sheet. The said application

dated 5.4.2021 was kept pending by the learned Judge of the trial

court and was decided only on 2.7.2021, whereby it was allowed and

further 90 days time was extended to complete the investigation. The

case of the petitioners is that on 5.7.2021, the petitioners completed

180 days in custody and soon thereafter i.e. on 6.7.2021, the

application for default bail was filed on their behalf under Section

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

learned Judge of the trial court, vide its order dated 12.10.2021, has

rejected the same holding that the time to file the charge sheet has

already been extended by the said court only on 2.7.2021 as per

provided under Section 36-A (4) of the Act. The learned Judge has

also observed that the time has been extended on the basis of the

written application submitted by the Special Public Prosecutor on

2.7.2021 and, as such, there is no violation of provision of Section 36-

A(4) of the Act.

6. Shri C.L.Yadav, learned Sr. counsel for the petitioners has

submitted that the learned Judge of the trial court had erred in not

considering the mandatory provisions of Section 36-A(4) of the Act in

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

its proper perspective in as much as the application for extension of

time was not even submitted by the Public Prosecutor and not only

that, in the application no reasons have been assigned by the Public

Prosecutor as to why the further custody of the accused persons, who

have already been arrested, is necessary to carry out further

investigation.

7. In support of his submissions, counsel for the petitioners has

relied upon the decision rendered by the Supreme Court in the case of

Abdul Wahab K. v. State of Kerala, (2018) 18 SCC 448 as also M.

Ravindran vs Intelligence Officer, Directorate of Revenue

Intelligence: reported as (2021)2 SCC 485/A.I.R. 2020 SC 5245.

8. Counsel for the respondents/State, on the other hand, has

opposed the prayer and it is submitted that no illegality has been

committed by the learned Judge of the trial court in passing the

impugned orders. Counsel has also submitted that merely, if the

application has been filed after 90 days of the arrest, it cannot be a

ground to assume that the application has been filed in violation of the

provisions of Section 36-A(4) of the Act. Counsel has further

submitted that a huge quantity of MD Drugs, 70 kg worth Rupees 70

Crores has been seized from the possession of the petitioner and as

such, no case for quashment of the impugned orders is made out, as

the investigation is still not completed.

9. Heard the counsel for the parties and also perused the record.

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

10. For the appreciating the arguments as advanced by the counsel

for the parties, it would be necessary to refer to Section 36-A(4) of the

N.D.P.S. Act, which reads as under:-

" 36-A. Offences triable by Special Courts: (1)...

xxxxxxxxxxxxxxxxx (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 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."

(emphasis supplied)

11. Since the petitioners are claiming default bail on the ground of

non-compliance of Section 36-A(4) of the Act, it would also be

fruitful at this juncture to mention the chronology of the events which

reads as under:-

    Date                             Events
05.01. 2021             the date of incident
05.01.2021              the petitioners were arrested by the police
06.01.2021             the petitioners were produced before the court
                       below and were sent into custody
05.04.2021             Investigating Officer filed application before the

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

court below for extension of 90 days on the ground that investigation is not completed within 90 days time.

02.07.2021 the application filed for extension of time was allowed and in addition to 180 days, further 90 days time has been granted to complete the investigation. (impugned order 1) 05.7.2021 the petitioners completed 180 days in the custody.

06.07.2021 Petitioners moved an application for default bail under Section 167(2) of Cr.P.C. r/w Section 36- A(4) of the N.D.P.S. Act.

07.07.2021 Default bail application rejected.(impugned order

12. So far as Section 36-A(4) of the Act is concerned, it is apparent

that the report for extension of time for further investigation of a case

under the N.D.P.S. Act is required to be made by the Public Prosecutor

only. It is also required that whenever such an application is filed, it

must be disclosed as to what is the necessity of the prosecution to keep

the accused persons, who are already arrested, in jail. If the

application filed on 5.4.2021 is tested on the anvil of the aforesaid

provision, it is found that the application has not been filed by the

Public Prosecutor and in fact, it has been filed by the Investigating

Officer only. Thus, it appears that the learned Judge of the trial court

has heard the Special Public Prosecutor on the aforesaid application

although the application has been filed by the Investigating Officer

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

himself. The relevant paras of the aforesaid application dated

5.4.2021 read as under :-

" Heading be reproduced @ page 20:

¼1½ izdj.k lnj dh foospuk esa vU; lansghx.kksa dh ryk'k irkjlh dh tk jgh gSA ¼2½ izdj.k esa vkjksihx.kksa ds [kkrks dk VªkatsD'ku jkf'k djksM+ksa :i;ksa esa gksus ls vkt fnukad rd pkMsZV ,dkamVsaM Onkjk vkfMV fjiksVZ izLRkqr ugh dh xbZ gS vr% izdj.kksa esa fxj¶rkj vkjksih dks [kkrksa dk fouh; vuqla/kku izfdz;k tkjh gSA ¼3½ izdj.k vR;ar xaHkhj izd`fr dk gS ftlesa vkt fnukad rd dqy 29 vkjksihx.kksa dh fxj¶rkjh dh tk pqdh gS ftlesa vf/kdka'kr% e-iz- ds ckgj xqtjkr] ukfld] eqacbZ] jktLFkku vkfn jkT;ksa ds gS fxj¶rkj lHkh vkjksihx.kksa dsfo:) iz;kIr lk{; ifjyf{kr gq, gS ,oa dbZ vkjksihx.k dq[;kr xqaMs o Hkkjrns'k ds fpfUgr izdj.k eqacbZ CykLV] xqy'ku gR;kdkaM ds vkjksih ,oa lacaf/kr Fkkuk {ks= ds fgLVªh'khVj Hkh gSA ¼4½ izdj.k dh izd`fr ,oa xaHkhjrk dks n`f"Vxr j[krs gq, Jheku iqfyl v/kh{kd egksn; eq[;ky; ftyk bUnkSj ds dk;Zkyk;hu vkns' k dzekad [email protected][;[email protected]@[email protected]@,[email protected]&,@2021 fnukad [email protected]@2021 ds ek/;e ls izdj.k dks t?kU;@luluh[kst xaHkhj vijk/k dh Js.kh esa fpfUgr fd;k x;k gSA ¼5½ izdj.k vR;ar xaHkhj izd`fr dk gS ,oa izdj.kksa esa tIr 'kqnk voS/k eknd inkFkZ esa esQsMªksu MD DRUGS 70 fdyks ls vf/kd ek=k esa tIr gqvk gS tks fd Hkkjr dk jkti= dh vf/klwpuk varxZRk fu/kkfjr okf.kfT;d ek=k 50 xzke ls 140 xquk vf/kd gSA ¼6½ NDPS ACT 1985 dh /kkjk 36 ¼d½¼4½ ds v/khu naMuh; fdlh vijk/k ds vfHk;qDr O;fDRk;ksa ds laca/k es okf.kfT;d ek=k ls lacaf/kr vijk/kksa ds fy, 1973] 1974 naM izfdz;k lafgrk dk ¼2½ dh /kkjk 167 dh mi/kkjk ¼2½ esa 90 fnol ds izfr funsZ'kksa dk tgka tgka os vkrs gSa fd os 180 fnu ds izfr funsZ'k gSA NDPS ACT 1985 dh /kkjk 36 ¼d½¼4½ ds v/khu ijarq ;fn vUos"k.k dks mDr fnu dh vof/k ds Hkhrj iqjk djuk laHko ugh gS rks fo'ks"k U;k;ky; mDr vof/k dks yksd vfHk;kstd dh vUos"k.k dh izxfr vkSj vfHk;qDRk ds fujks/k ds fy, fofufnZ"V dkj.kksa dks minf'kZr djus okyh fjiksVZ

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

ij vof/k dks 90 fnol esa vf/kd rd c<+k ldsxkA ¼7½ izdj.k lnj dh vfxze foospuk ds nkSjku vU; dbZ lansghx.kksa dh ryk'k dh tkdj mudh vijk/k lnj esa 'kkfey gksus dh Hkwfedk ds laca/k esa Hkh foospuk dh tkuk yafcr cuh gqbZ gSA izdj.k lnj esa fxj¶rkj vkjksihx.k vkjksihx.k ¼1½ fnus'k firk ukjk;.k yky vxzoky 55 lky fu- ch- Cykd ¶ySV ua- 406 fu'kfnu vksjk fcfYMax egky{eh uxj bankSj ¼2½ v{k; mQZ phdw vxzoky firk fnus'k vxzoky 30 lky fu- ch Cykd ¶ySV u- 406 fu'ksfnu vksjk fcfYMax egky{eh uxj bankSj ¼3½ fpeu vxzoky firk enyky vxzoky 38 lky fu- 38 izse dkWYkksuh Lvs'ku jksM eanlkSj ¼4½ osn izdk'k firk LoxhZ; Jh fcgkjhyky O;kl mez 58 lky fuoklh 2&23&J&299 fu;j f'ko ikoZRkh fFk,Vj] dqdiYyh] fr:ekykfxjh] gSnjkckn] rsyaxkuk ¼5½ ekaxh cSadVs'k firk ekaxh vkbyS;k 39 lky fu-24&[email protected]@106 IykV ua- 105 ch izdk'keiarqy uxj gSnjkckn dks fnukad [email protected]@2021 dks fxj¶rkj fd;k x;k Fkk ftudh fxj¶rkjh ds 90 fnol iw.kZ gksus dks gS ,oa orZeku esa foospuk yafcr cuh gqbZ gS ,oa vkjksih dks U;kf;d vfHkj{kk ls NksM+k x;k rks foospuk ij izfrdwy izHkko iMs+xkA ¼8½ izdj.k esa vc rd dh foospuk esa vk, lk{;] ,Q-vkbZ-vkj-] eseksjsaMe] tIrh] fxj¶rkjh ,oa lk{khx.kksa ds dFku ls fxj¶rkj vkjksihx.kksa ds fo:) vijk/k /kkjk lnj dk vijk/k ?kfVRk djus i;kZIr lk{; ik, x, gSA vr% vkjksihx.kksa dh fxj¶rkjh ds 90 fnol iw.kZ gksus dks gS vkSj vuqla/kku ds nkSjku egRoiw.kZ lk{; dk ladyu ,oa vU; O;fDRk;ksa dh Hkwfedk ds laca/k esa foospuk dh tkuk gSA vr% izdj.kksa esa fxj¶rkj vkjksihx.kksa ds fo:) NDPS ACT 1985 dh /kkjk 36 ¼d½¼4½ ds v/khu vUos"k.k dks 90 fnol dh vof/k ds Hkhrj iqjk djuk laHko ugh gks ik;k gSA vUos"k.k dh izxfr vkSj vfHk;qDRk ds fujks/k ds fy, fofufnZ"V mijksDRk dkj.kksa ds dkj.k fujks/k vof/k dks 90 fnol ls vf/kd rd c<+k tkus ds laca/k esa izfrosnu d`i;k voyksdukFkZ ,oa mfpr vkns'kkFkZ lknj izsf"kr gSA layXUk %& mijksDRkkuqlkj Fkkuk izHkkjh Fkkuk vijk/k 'kk[kk ftyk bUnkSj ¼e-iz-½ Qksu ua- 0731&2549822 izfrfyfi %

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

1½ Jheku iqfyl v/kh{kd egksn; eq[;ky; ftyk bUnkSj dh vksj d`i;k lknj lwpukFkZA 2½ Jheku vfr iqfyl v/kh{kd egksn; vijk/k 'kk[kk ftyk bUnkSj dh vksj d`i;k lknj lwpukFkZA 3½ Jheku ftyk yksd vfHk;kstu vf/kdkjh dh vksj d`i;k lknj lwpukFkZ ,oa vko';d dk;Zokgh gsrwA Fkkuk izHkkjh Fkkuk vijk/k 'kk[kk ftyk bUnkSj ¼e-iz-½"

13. On perusal of the aforesaid application, it clearly reveals that

despite noting the provisions contained in Section 36-A(4) of the Act,

the Investigating officer was of the view that time provided to

complete the investigation is 90 days only but, it can be extended up to

further 90 days with the permission of the judge of the Trial Court and

that is why after the arrest of the accused Mangi Vyantkesh on

06.01.2021, the application was filed just one day short of the 90 days

i.e. on 05.04.2021. It is apparent that despite it being a case of serious

nature, the Public Prosecutor has not taken any care to go through the

said application filed by the Investigating Officer himself, under the

name of his office only i.e. Office of Police Station Crime Branch,

Indore, and has not filed the said application himself. It is also

apparent that the learned Judge of the Trial Court has also heard the

Public Prosecutor before passing the impugned order but even on the

day of hearing, it appears that the Public Prosecutor was totally

oblivious of the facts and the law as well, otherwise, instead of

supporting the application dated 05.04.2021, a fresh, up-to-date

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

application could have been filed on 02.07.2021 itself when the

impugned order was passed.

14. The question, that falls for the consideration of this Court is,

whether the provisions of Section 36-A(4) of the Act are mandatory in

nature and whether it is only the Public Prosecutor who can file an

application for extension of time or such an application can also be

filed by the investigating officer himself as well ?

15. This Court is of the considered opinion that the provisions of

Section 36-A(4) of the Act have to be strictly construed as it deals with

the personal liberty of an individual who is otherwise entitled to be

released on bail except where the time to file the charge sheet has been

extended by the learned Judge of the trial court beyond 180 days.

This Court is also of the opinion that the legislature in its wisdom, has

specifically entrusted the Public Prosecutor to file such an application

for extension of time under Section 36-A(4) of the Act taking in to

consideration the shortcomings which may be suffered by an

Investigating Officer while filing such application, which is also

personified by the case on hand. This Court also finds that the

appointment of a Public Prosecutor is made under Section 24 of the

Cr.P.C. which also provides for certain minimum qualification for such

appointment. Thus, when Section 36-A(4) provides for making of a

report by the Public Prosecutor, then this authority cannot be delegated

by the Public Prosecutor to the Investigating Officer. It is a trite law

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

that where power is given to do a certain thing in a certain way, the

thing must be done in that way or not at all, and that other methods of

performance are necessarily forbidden, as has been postulated in the

case of Nazir Ahmad v. King Emperor reported as AIR 1936 PC

253(2) which has also been followed by the Supreme Court in the case

of State of U.P. v. Singhara Singh, AIR 1964 SC 358. Thus, the

Public Prosecutor could not have delegated his power to the

Investigating Officer and even otherwise, it is also found that present

is not a case where the power has been delegated by the Public

Prosecutor to the Investigating Officer, but a case where the power has

been assumed by the Investigating Officer who filed the application

under Section 36-A(4) of the Act on his own, under the nose of the

Public Prosecutor, which, in the considered opinion of this court, is in

blatant violation of the provisions of Section 36-A(4) of the Act and

cannot be sustained.

16. This Court also finds that when the application for default bail

was filed by the petitioners, it was rejected vide impugned order dated

07.07.2021, specifically observing that the time to file charge sheet

has already been extended on 02.07.2021 on the application filed by

Public Prosecutor. A careful reading of the order dated 02.07.2021

vis-à-vis the application dated 05.04.2021 reveals that it is factually

incorrect to say that the application has been filed by the Public

Prosecutor whereas it has been filed by the Investigating Officer only.

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

It is also found that in the order dated 02.07.2021 the learned Judge,

apart from noting that the application has been filed by the public

prosecutor, it has also mentioned that the application has been filed by

the Police Station, Crime Branch. In such factual scenario, this court is

of the considered opinion that the role assigned to a public prosecutor

under Section 36-A(4) of the Act is not of a postman but of a vigilant

prosecutor who has to ensure proper compliance of the Act, especially,

the mandatory provisions of Section 36-A(4).

17. So far as the duties of a Public Prosecutor are concerned, it has

been succinctly held by the Supreme court in the case of Abdul

Wahab K. (supra) as under :-

"14. In Bairam Muralidhar v. State of A.P.11, while appreciating the said provision, it has been laid down that: (SCC p. 392, para 18) "18. ... it is the obligation of the Public Prosecutor to state what material he has considered. It has to be set out in brief. The court as has been held in Abdul Karim case12, is required to give an informed consent. It is obligatory on the part of the court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the court as well as his duty to the collective."

15. From the aforesaid authorities, it is clear as crystal that the Public Prosecutor or an Assistant Public Prosecutor, as the case may be, has an important role under the statutory scheme and is expected to act as an independent person. He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted.

16. In V.L.S. Finance Ltd. v. S.P. Gupta, a two-Judge Bench, after analysing the law in detail, has ruled: (SCC p. 756, para 42) "42. We have enumerated the principles pertaining to the jurisdiction of the court while dealing with an application preferred under Section 321 CrPC and also highlighted the role of the Public Prosecutor who is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. The authorities referred to hereinabove clearly spell out that the Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the court as well as his duty to the collective."

(emphasis supplied)

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

18. Thus, tested on the anvil of the aforesaid dictum of the Supreme

Court also, the application filed by the Investigating Officer cannot be

countenanced in the eyes of law as it was the duty of the Public

Prosecutor to file such application u/s.36A(4) of the Act.

19. On the other hand, on perusal of the aforesaid chronology of

the events, it is found that the application dated 05.04.2021 for

extension of time was decided by the learned Judge of the trial court

only on 02.07.2021 i.e. only after around three months and over and

above 180 days, further 90 days time has been granted to the

Investigating Officer to file the charge sheet.

20. A close scrutiny of the application dated 05.04.2021 clearly

reveals that, the aforesaid application was filed by the Investigating

Officer under erroneous impression that only 90 days' time is provided

under the N.D.P.S. Act and further 90 days time can be extended by

the court under Section 36-A(4) of the Act and that is why the said

application was filed prior to completion of 90 days from the date of

arrest. It is rather surprising that the learned Judge of the trial court

would keep the aforesaid application dated 05.04.2021 pending for a

period close to 03 months and allow the same only on 02.07.2021

extending further 90 days time, over and above 180 days. It is

surprising because admittedly, the learned Judge of the trial court has

considered the progress of investigation which was carried out until

05.04.2021 only and not up to 02.07.2021. This Court is of the

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

considered opinion that, an application for extension of time to file the

charge sheet under Section 36-A(4) of the Act has to be filed in a

timely manner, i.e. within reasonable period of one or two weeks

before the expiry of time provided to file the charge sheet so that the

trial court can apply its mind to the latest update and status of the

investigation for the purposes of extension of time. Thus, a stale,

around three months old application has been considered by the

learned Judge of the trial court for extending the time to file the charge

sheet, which, in itself is a ground, sufficient enough to hold that there

was non-application of mind on the part of the learned Judge of the

trial court.

21. In view of the same, this Court is of the considered opinion that

both the impugned orders passed by the learned Judge of the trial court

dated 02.07.2021 and 07.07.2021 are bad in law and are liable to be

quashed. Accordingly, the present petitions stand allowed and the

impugned orders dated 02.07.2021 and 07.07.2021 are hereby set

aside and the petitioners are directed to be released on bail.

22. The petitioners are directed to be released on bail upon their

furnishing a personal bond in the sum of Rs.5,00,000/- (Rupees Five

Lakhs only) each with one solvent surety of the like amount each to

the satisfaction of the trial Court for their regular appearance before

the trial Court during trial with a condition that they shall remain

present before the court concerned during trial and shall also abide by

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

the conditions enumerated under Section 437 (3) Criminal Procedure

Code, 1973. Additionally, the petitioners are also directed not to leave

India without the permission of the trial court and before their release,

they shall also deposit their passports, if any, before the trial court.

23. It is made clear that if the petitioners are again found to be

involved in any other offence during the trial, this order shall stand

cancelled automatically without reference to the Court and the police

will be at liberty to arrest the petitioners in the present case also.

(SUBODH ABHYANKAR ) JUDGE

moni

Digitally signed by MONI RAJU Date: 2021.09.22 18:39:15 +05'30'

M.Cr.C.38064-2021, Cr.R.1838-2021 & M.Cr.C.No. 44843-2021

THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH M.Cr.C. No. 38064-2021 (Dinesh Agrawal and others vs. State of Madhya Pradesh) Cr.R. No. 1838-2021 (Ayub Qureshi vs. State of Madhya Pradesh) Indore, Dated: 06/09/2021 Shri C.L. Yadav, learned senior counsel with Shri Neelesh

Agrawal, learned counsel for the petitioners in M.Cr.C. No. 38064-

2021.

Shri Vikas Yadav, learned counsel for the petitioner in Cr.R.No.

1838-2021.

Shri Ranjeet Sen, learned Govt. Advocate for the

respondent/State.

Arguments heard.

Reserved for orders.

(SUBODH ABHYANKAR ) JUDGE

Indore, Dated: 21/09/2021

Common order passed, signed and dated.

(SUBODH ABHYANKAR ) JUDGE