Manipur High Court

Tampakmayum Harun Khan vs The Officer-In-Charge on 31 March, 2023

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril.Petn. No. 2 of 2023

Tampakmayum Harun Khan, aged about 29 years, S/o Md.
Abdullah of Yairipok Laimanai, P.O. Yairipok, P.S. Andro,
District: Imphal East, Manipur.

...... Petitioner/s
- Versus -

The Officer-in-Charge, Yairipok Police Station at Yairipok,
P.O. & P.S. Yairpok, Imphal East District, Manipur.

........Respondent/s

B E F O R E
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the petitioner :: Mr. Th. Babloo, Advocate.

For the respondents :: Mr. H. Samarjit, PP.

Date of Hearing :: 28.02.2023
Date of Judgment & Order :: 31.03.2023

Judgment & Order (CAV)

[1] The petitioner has filed the present petition under Section 482

of the Code of Criminal Procedure (Cr.P.C.) challenging the impugned

order dated 04.11.2022 passed by the Ld. Special Judge (ND&PS),

Thoubal, Manipur in Cril. Misc. Case No. 330 of 2022 in connection with

FIR No. 17(06)2022 YPK-PS U/S 22(C)/60(3) ND & PS Act. By the

impugned order, the Ld. Special Judge allowed the application under

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 1
Section 36-A(4) ND & PS Act filed by the prosecution for extending the

period of detention of the accused/petitioner beyond 180 days, i.e. upto

one year.

[2] The prosecution story is that on 07.06.2022 at about 12:05 pm

a joint team of Commando Unit Thoubal PS detained a Hyundai Santro car

blue in colour driven by the petitioner bearing registration No. MN1A 8368

at Yairipok Bazar. From the possession of the petitioner, one polythene

bag containing 300 WY tablets was seized from him and he was arrested

with respect to the above mentioned FIR.

[3] On completion of the statutory period of 180 days of judicial

custody, the petitioner through his counsel filed an application for grant of

default bail and approached the Court of Ld. Special Judge NDPS, Thoubal

on 08.12.2022. However, the counsel was informed by the Ld. Public

Prosecutor that custody period of the petitioner was extended by the Ld.

Special Court by the impugned order dated 04.11.2022 and as such, the

default bail application was rejected. It is stated that the petitioner did not

know the existence of the impugned order dated 04.11.2022 extending his

custody for the period of one year, since no notice was given to the

petitioner by the Ld. Special Court nor the prosecution. No copy of the

application for extension of custody period filed in Crl. Misc. Case No. 330

of 2022 was also furnished to him by the authorities.

[4] The impugned order dated 04.11.2022 has been challenged

on the following grounds that:

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 2
(i) The Ld. Court below had not applied mind while

passing the impugned order dated 04.11.2022 and the

same has been passed perfunctorily and in a routine

manner just on the application of the police and as such

the impugned order dated 04.11.2022 passed in Crl.

Misc. Case No. 330 of 2022 deserves to be quashed

and set aside;

(ii) No copy of the application filed in Crl. Misc. Case No.

330 of 2022 for grant of extension of custody period

was served/furnished to the petitioner before passing

the impugned order. As such the impugned order

deserves to be quashed and set aside for non-

compliance of principles of natural justice;

(iii) Even assuming that copy of the application was

furnished to the petitioner, would not be sufficient for

the Ld. Court below to pass the impugned order without

the production and the presence of the accused

petitioner to pass the order extending the custody

period. As such the impugned order dated 04.11.2022

deserves to be quashed and set aside;

(iv) It is provided under the provisions of Section 36-A(4)

NDPS Act that in respect of persons accused of an

offence punishable U/S 27-A of the Act or for offences

involving commercial quantity the reference in Sub-

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 3
Section (2) of Section 167 Cr.P.C. thereof to "ninety

days" where they occur shall be construed as reference

to "one hundred and eighty days"'

(v) Under the provision of Proviso to Section 36-A(4) of the

NDPS Act, it is provided that if it is not possible to

complete the investigation within the period of 180

days, the Spl. Court may extend the period to one year

on the report of the Public Prosecutor indicating the

progress of the investigation and the specific reason for

the detention of the accused beyond the period of 180

days;

(vi) In the present case the mandatory provision/procedure

under the provision of Proviso to Section 36-A(4) of the

NDPS Act is not followed inasmuch as the Ld. PP had

not applied his mind to the report of the police and

never formed opinion and the so called report of the PP

is verbatim reproduction of the report of the I.O. As

such the impugned order dated 04.11.2022 is vitiated

and deserves to be quashed and set aside;

(vii) The impugned order dated 04.11.2022 passed by the

Ld. Court below in Crl. Misc. Case No. 330 of 2022 in

otherwise quite illegal arbitrary and whimsical and as

such deserves to be quashed and set aside.

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 4
[5] It is prayed that the impugned order dated 04.11.2022 be set

aside and the petitioner be released on default bail.

[6] The respondent has filed counter affidavit to the petition filed

by the petitioner. It is stated that a copy of the application being Crl. Misc.

Case No. 330 of 2022 (for extension of period of custody) was delivered to

jail authority on 29.10.2022 and the same was received by the jail authority

for furnishing the same to the petitioner. As such, it is denied that no notice

was given to the petitioner.

[7] It is further stated in para 9 of the reply of the respondent that

a copy of the application for extension of time was served on the jailor and

was furnished to the petitioner and his signature was also seen on the

application [Annexure R-1 (same as P-4)]. Hence there is a presumption

that the petitioner was served with a copy of the application. It is also

denied that the mandatory provisions/procedures of Section 36-A(4) ND &

PS Act are not followed by the Ld. PP and the report of the Ld. PP is

verbatim reproduction of the report of the I.O. It is prayed that the petition

be dismissed as being devoid of any merit.

[8] Heard Mr. Th. Babloo, learned counsel for the petitioner and

Mr. H. Samarjit, learned PP for the State respondent.

[9] Mr. Th. Babloo, learned counsel for the petitioner, submits

that the impugned order dated 04.11.2022 is vitiated for not following the

mandatory provisions of Section 36-A(4) of ND & PS Act. He further

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 5
submits that the Proviso to Section 36-A(4) of the NDPS Act stipulates that

if the investigation cannot be completed within the period of 180 days, the

Special Court may extend the period of investigation upto one year on the

report of the Public Prosecutor indicating the progress of the investigation

and the specific reason for detention of the accused beyond the period of

180 days.

Before deciding an application filed under these Provisions,

the Special Court has to issue notice to the accused and his presence is

required while considering the application. It is also stated that the Public

Prosecutor is to give his independent reason for filing the application for

extension of time and the same ought not to be verbatim reproduction of

the report of the investigating officer. He has pointed out that in the present

case, the notice was served to the jail authority only and the accused was

not produced at the time of hearing and he was not aware of passing of the

impugned order for extension of time for investigation. From Annexure R-1,

it is not clear whether the report/application for extension of time was

actually served on the petitioner or not. Moreover, the Ld. PP has not

applied his mind and the application, being Cril. Misc. Case No. 330 of

2022 filed by the Ld. PP, is verbatim reproduction of the report of the IO. It

is the short submission of Mr. Th. Babloo, learned counsel for the petitioner

that presence of the accused (physical or virtual) is mandatory while

considering the report/application of the Ld. PP and non-application of mind

by the Ld. PP while presenting the application flouted the statutory

safeguards.

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 6
Mr. Th. Babloo, learned counsel for the petitioner, refers to the

Judgment and order dated 23.09.2022 passed by the Division Bench of the

Hon'ble Supreme Court in Criminal Appeal No. 1656 of 2022 in the case of

Jigar @ Jimmy Pravinchandra Adatiya vs. State of Gujarat reported as

2022 SCC Online 1290 at paras 29, 35 and 38. This case involves the

interpretation of Section 20(2) of the Gujarat Control of Terrorism and

Organised Crime Act, 2015 which modifies Section 167(2) CrPC extending

the period of investigation beyond 90 days upto a period of 180 days. The

provisions of Section 20(2) of the Gujarat Act of 2015 is pari materia with

the provisions of Section 36-A(4) of NDPS Act. It is held in Jigar case

(supra) that the extension of time for investigation amounts to deprivation

of indefensible right available to accused to claim a default bail and failure

to produce the accused before the Court and to inform him about

application for extension of time may amount to violation of right confers

under Article 21 of the Constitution. The failure to procure the presence of

the accused either physical or virtually before the Court and the failure to

inform about the application filed by the Prosecutor for extension of time

which is being considered is not a mere procedural irregularity and the

same is gross illegality that violates the right of the accused under Article

21 of the Constitution. The relevant portion of paras 30 and 31 reads as

under:

"30. The logical and legal consequence of the grant of
extension of time is the deprivation of the indefeasible
right available to the accused to claim a default bail. If

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 7
we accept the argument that the failure of the
prosecution to produce the accused before the Court
and to inform him that the application of extension is
being considered by the Court is a mere procedural
irregularity, it will negate the proviso added by sub-
section (2) of Section 20 of the 2015 Act and that may
amount to violation of rights conferred by Article 21 of
the Constitution. The reason is the grant of the
extension of time takes away the right of the accused to
get default bail which is intrinsically connected with the
fundamental rights guaranteed under Article 21 of the
Constitution. The procedure contemplated by Article
21 of the Constitution which is required to be followed
before the liberty of a person is taken away has to be a
fair and reasonable procedure. In fact, procedural
safeguards play an important role in protecting the
liberty guaranteed by Article 21. The failure to procure
the presence of the accused either physically or
virtually before the Court and the failure to inform him
that the application made by the Public Prosecutor for
the extension of time is being considered, is not a mere
procedural irregularity. It is gross illegality that violates
the rights of the accused under Article 21.

31. An attempt was made to argue that the failure to
produce the accused will not cause any prejudice to
him. As noted earlier, the grant of extension of time to
complete the investigation takes away the indefeasible
right of the accused to apply for default bail. It takes
away the right of the accused to raise a limited
objection to the prayer for the extension. The failure to
produce the accused before the Court at the time of
consideration of the application for extension of time

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 8
will amount to a violation of the right guaranteed
under Article 21 of the Constitution. Thus, prejudice is
inherent and need not be established by the accused."

Mr. Th. Babloo, learned counsel, also relies upon the

judgment and order dated 17.01.2023 passed by a Full Bench of the

Calcutta High Court in a batch of petitions being C.R.M. No. 146 of 2021 in

the case of Subhas Yadav vs. The State of West Bengal, etc., which

held that the Special Court on the basis of the report of the Public

Prosecutor and the material in support of such plea was satisfied of the

twin requirement that there is appreciable progress in the investigation and

there is specific and compelling reason to justify further detention pending

investigation and the accused or his counsel must be present personally or

through video linkage at the time of consideration of the application. The

relevant portion is reproduced herein below:

"30. 1.
...........................................................

8. No written notice or copy of report of Public Prosecutor requires to be served upon the accused or his counsel but the accused or his counsel must be present personally or through video linkage at the time of consideration of the application. Accused and/or his counsel must be aware of such consideration and may raise objection, if any, with regard to compliance of mandatory requirements of law."

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 9 Further, Mr. Th. Babloo, learned counsel, also relies upon the

judgment of the Hon'ble Supreme Court in the case of Hitendra Vishnu

Thakur & Ors. vs. State of Maharastra & Ors. reported as (1994) 4 SCC

602 to the effect that it is the Public Prosecutor, not an Investigating

Officer, who has to make an application for extension of time with the

report indicating the progress of investigation. He further relies upon the

judgment the Constitution Bench of the Hon'ble Supreme Court in the case

of Sanjay Dutt vs. State through CBI, Bombay (II) reported as (1994) 5

SCC 410 which held that production of the accused before the Court in

accordance with Section 167 will be sufficient requirement of notice to the

accused before grant of extension of time of investigation. The relevant

portion is reproduced herein below:

"53.

2(a). Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the Judgment of the Division Bench of this Court in Hitendra Vishnu Thakur.

The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 10 the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose."

The learned counsel for the petitioner submits that in the

present case, neither the accused/his counsel could appear before the

Court physically nor virtually while considering the application for extension

of time, as they were not duly informed. He further emphasized that the

learned PP has not applied his mind to the satisfaction of the case and the

main ground for extension is concealment of identity of one co-accused

and non-completion of forensic report. He further points out that the

learned PP has not applied his independent mind and simply reproduced

the report submitted by I.O. Moreover, the Ld. Special Court extended the

period of investigation only on the ground that the present case involved

seizure of suspected WY tablet of commercial quantity. He prays that the

impugned order be set aside, and the accused be set at liberty on default

bail, as the present case violates the principle settled by the Apex Court

and various High Courts in the cases cited above.

[10] Mr. H. Samarjit, learned PP for the State, submits that notice

was served to the accused through jailor prior to the hearing and non-

production of the accused and non-appearance of his counsel cannot be

faulted. The notice was duly served to the jail authority on 29.10.2022 and

the same was furnished to the accused on the same day. As such, there is

no illegality in the impugned order. He further submits that the present case

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 11 involves seizure of suspected WY tablets of commercial quantities and the

accused is concealing the identity whereabouts of the co-accused, who is

habitual offender and not co-operating with the investigation. In the present

case many co-accused and drug cartel are absconding and if the accused

is released, he may abscond or may be eliminated by the cartel. As such,

extension of time for investigation is justified.

He relies upon the judgment of the Hon'ble Supreme Court in

the case of Sanjay Kumar Kedia Alias Sanjay Kedia vs. Intelligence

Officer, Narcotics Control Bureau & Anr. reported as (2009) 17 SCC

631, which held that the period of 180 days for investigation can be

extended to one year under the Proviso to Section-36A(4) of ND & PS Act

with the condition that a report of the Public Prosecutor indicating progress

of the investigation and specifying the compelling reason for seeking

detention beyond 180 days and after noticed to the accused. Learned PP

submits that the conditions laid down in this cited case are complied and

there is no illegality in the present case and he prays for dismissing the

petition. The relevant portion is reproduced herein below:

"12. The maximum period of 90 days fixed under Section 167 (2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorizes a yet further period of detention which may in total go upto one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are:

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 12 (1) a report of the public prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused."

[11] From the pleading of the parties and submissions thereof, the

points of determination involved in the present case are:

"1. Whether the presence of the accused or his counsel is mandatory at the time of consideration for application of time for extension under proviso to Section 36-A(4) NDPS Act or not?

2. Whether the Public Prosecutor has to apply his independent opinion regarding the specific reasons for extension of time for investigation?"

[12] It will be useful to reproduce the provisions of Section 36-A of

the NDPS Act, 1985 as below:

36-A. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973--

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers--

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him;

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 13 that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36. (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27- A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 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.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.]

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 14 From the above provisions of Section 36-A(4) NDPS Act and

its proviso, it is clear that for an offence punishable under Section 19 or

Section 24 or Section 27A or for offences involving commercial quantity

and if the investigation cannot be completed within the modified period of

180 days as stipulated under Section 167(2) of CrPC, 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 on 180

days.

[13] In the case of Hitendra Vishnu Thakur v. State of

Maharashtra: (1994) 4 SCC 602 while dealing with a similar provisions

under Section 20(4) of TADA Act with respect to extension of time beyond

90 days up to 180 days as stipulated under Section 176(2) of CrPC, a Two

Judge Bench of the Hon'ble Supreme Court held that no extension of time

for investigation shall be granted without notice to the accused affording an

opportunity to express his views. However, a 5 Judge Constitution Bench

of the Apex Court in the case of Sanjay Dutt v. State through CBI: (1994)

5 SCC 410 @ Para 53(2)(a) held that the requirement of notice as held in

Hitendra case (supra) is not a written notice to the accused giving

reasons therein. Production of the accused at that time in the court

informing him that the question of extension of the period for completing

the investigation is being considered, is alone sufficient for the purpose.

[14] However, relying on the ration of Hitendra case (supra), a

Two Judge Bench of the Hon'ble Supreme Court held in the case of

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 15 Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau:

(2009) 17 SCC 631 @ Para 12 held, while interpreting the provisions of

Section 36-A(4) of NDPS, that notice to the accused is required for

consideration of the application for extension of time for completing

investigation. Four conditions have been laid down in Para 12 as

reproduced below:

"The conditions provided are:

(1) a report of the public prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused."

[15] In the case of Jigar (supra), a two Judge Bench of the

Hon'ble Supreme Court held that the requirement of giving notice to the

accused as observed in the case of Sanjay Kedia (supra) did not consider

the binding precedent in the case of Sanjay Dutt (supra). Therefore, this

decision on requirement of giving written notice to the accused prior to

considering the application/report submitted by the Public Prosecutor for

extension of time for completing investigation will not be a binding

precedent. Further it has been held in Jigar case (supra) that firstly, the

report of the Public Prosecutor should set out the progress of the

investigation and secondly, the report must disclose specific reasons for

continuing the detention of the accused beyond the stipulated period. The

Public Prosecutor has to apply his mind before he submits a report/an

application for extension and the Court must apply its mind to the contents

of the report before accepting the prayer for grant of extension. It is also

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 16 observed that "30. The logical and legal consequence of the grant of

extension of time is the deprivation of the indefeasible right, available to

the accused to claim a default bail. ......The procedure contemplated by

Article 21 of the Constitution which is required to be followed before the

liberty of a person is taken away has to be fair and reasonable. ..... The

failure to procure the presence of the accused either physically or virtually

before the Court and failure to inform him that the application made by the

Public Prosecutor for the extension of time is being considered, is not a

mere procedural irregularity. It is gross illegality and that violated the rights

of the accused under Article 21". In Jigar case (supra), the accused was

not produced before the court physically or virtually when the application

was being considered and nor informed about the application. The

application was allowed on the same day of its filing. Accordingly, the

Hon'ble Apex Court set aside the order of the Special Court granting

extension of time to complete investigation and held that the accused are

entitled to default bail.

[16] The sum and substance in the decision of the Jigar case

(supra) are: (i) In the report, the Public Prosecutor should set out the

progress of the investigation; (ii) The report must disclose specific reasons

for continuing the detention of the accused beyond the stipulated period;

(iii) The Court must apply its mind to the contents of the report before

accepting the prayer for grant of extension; (iv) The accused be produced

physically or virtually before the court at the time of the consideration of the

application/report for extension of time; (v) Production of the accused is a

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 17 sufficient compliance of the requirement of notice; and (vi) no written notice

to the accused is required as per ratio of Sanjay Dutt case (supra).

[17] While disposing a batch of petitions and relying on the ratio of

Sanjay Dutt case (supra) and Jigar case (supra), a Full Bench of

Calcutta High Court in the case of Subhas Yadav etc. (supra) held in Para

8 that no written notice or copy of the report of the Public Prosecutor under

proviso to Sub Section 4 to Section 36-A of NDPS Act requires to be

served on the accused or his counsel, but the accused or his counsel must

be present personally or through video linkage at the time of the

consideration of the application and may raise objection, if any. It is also

held that extension of time solely on the ground of non-submission of FSL

report of the contraband samples may not be a sufficient reason.

[18] This Court has minutely gone through the relevant provisions

of law and case laws cited by the parties. It is settled proposition of law that

the production of the accused or appearance of his counsel physically or

virtually before the Court at the time of consideration of the

report/application filed by the Public Prosecutor for extension of time under

proviso to Section 36-A(4) of NDPS Act is mandatory, even though service

of written notice or copy of report is not required. In his report/application,

the Public Prosecutor has to indicate the progress of investigation and the

specific reasons for detention beyond the stipulated period. Besides, the

Court has to apply its mind before granting extension. Upon rejection of

prayer for extension of time to complete investigation, the accused will be

entitled to default bail.

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 18 [19] In addition to the above conditions, this Court desires to add

the additional condition that 'preferably a written notice or copy of report

may be furnished to the accused or his counsel so as to enable the

accused to raise an effective objection to the prayer for extension of time'.

[20] The points of determination framed in Para 11 are answered

in terms of observations made in Para 18 and 19 as above.

[21] In the present case, admittedly, the accused was not

produced before the Special Court physically or virtually when the

application for extension of time filed by the Public Prosecutor was being

considered. Nor was his counsel appearing personally or through video

linkage as held in the cases of Jigar (supra) and Subhas Yadav etc.

(supra). It is the case of the accused that he had no knowledge of the

application and order for extension of time, and he came to know about the

same when his counsel went to the court to file application for default bail.

Hence, there is violation of the statutory mandate of the proviso to Sub

Section 4 of Section 36-A of NDPS Act. However, the Public Prosecutor

has explained the progress of the investigation and reasons for extension

of time such as likelihood of absconding of the accused and/or likelihood of

his elimination by drug cartel of which he is alleged to be a member;

absconding of co-accused; identification other accused and non-

submission of FSL report, etc. This Court is of the opinion that there is

substantive compliance of the statutory requirements in the report, except

for non-production of the accused at the time if its consideration.

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 19 [22] Considering the facts of the present case in totality to the

settled proposition of law as discussed above, this Court is of the opinion

that the impugned order dated 04.11.2022 passed by the learned Special

Judge (ND&PS), Thoubal, Manipur in Cril. Misc. Case No. 330 of 2022

extending time for completion of investigation under the proviso to Section

36-A(4) of NDPS Act in connection with FIR No. 17(06)2022 YPK PS under

Section 22(c)/60(3) of ND&PS Act cannot be sustained, as the accused

was not produced physically or virtually at the time of consideration of the

application and nor was his counsel appearing physically or virtually.

Accordingly, the impugned order dated 04.11.2022 is set aside and the

accused/petitioner is entitled to default bail.

[23] The accused/petitioner Tampakmayum Harun Khan is

enlarged on default bail under the proviso to Section 36-A(4) of NDPS Act

read with Section 167(2) CrPC on furnishing a bail bond of Rs. 1,00,000/-

with a surety of like amount (government employee) to the satisfaction of

learned Special Judge (ND&PS), Thoubal, Manipur with the following

conditions that:

(a) The accused shall co-operate with the investigation.

(b) The accused shall not tamper with the evidence.

(c) The accused shall not try to influence persons acquainted with

the facts of the present case.

(d) The accused shall appear before the Special Court on every

Monday at 11.00 am till trial commences. If Monday happens

to a holiday, he shall appear on the next working day.

Crl. Petition No. 2 of 2023: Tampakmayum Harun Khan Page 20

(e) The accused shall not leave the State of Manipur without

permission of the Special Court; and

(f) The accused shall surrender his passport to the Special

Court, if any.

[24] The petition is allowed in terms of the above findings and

observations. No cost.

[25] Send a copy of this order to the learned Special Judge

(NDPS), Thoubal, Manipur for information.

JUDGE

FR/NFR

joshua