Mr. Antonios Kaminis vs Union of India

U. D. Salvi, J.—This is an application for bail in CR. No.CE/NC/NDPS/17/08-09 dated 22.6.2009 registered with Central Excise Narcotic Cell, Panaji Goa u/s 20(b), 21 of the - 2 -Narcotic Drugs and Psychotropic Act, 1985. According to the applicant/accused, he is in detention for over 180 days on the accusation of having been found in possession of 243gms of Cocaine, 361 gms of Hashish and the period of his detention was got extended by the Investigating Officer/ Superintendent of Central Excise upon an application dated 13.1.2010 made by him before the Special Narcotic Drugs and Psychotropic Court at Mapusa Goa. Which he could not have made without the report of the Public Prosecutor as envisaged under the Proviso to sub section (4) to the Section 36A of the Narcotic Drugs and Psychotropic Act.

Learned Advocate Mr. P. D''Souza, for the applicant submitted that the report of the Public Prosecutor indicating the progress of investigation and specific reasons for the detention of the accused beyond the period of 180 days is indispensable requirement for moving an application for extension of time, as such report signifies application of mind by the Public Prosecutor to the progress of investigation. In support of this submission he relied on judgment reported in 2010 ALL MR (CRI) 3010(S.C.) Sanjay Kumar Kedia versus Intelligence Officer, Narcotic Control Bureau and Anr.

Learned Advocate Mr. J. Vaz, for the State, inviting attention to the reply dated 19.5.2010 to this application, submitted that the investigation is almost complete and filing of the chargesheet/ complainant is pending for want of the chemical analysis report from the CSFL, Hyderabad. He further pointed out that this fact is found reflected in para 2 of the application for extension of time to file complaint moved by the complainant/Superintendent of the Central Excise and, therefore, in a case wherein it is now reported that the Chemical Analysis report is positive for cocaine, the technicality of law ought not to translate into privilege of bail.

It is true that chemical analysis report dated 26.2.2010 now placed before this Court reveals that the seized material weighing 243gms sent to it for analysis gave positive test for the presence of Cocaine. This fact further signifies that at the time of moving the application for extension of time the report was not in the hands of the complainant/superintendent of Central Excise. However, it poses a question whether such circumstances gave liberty to the Investigating Officer to directly approach the Court without the intervention of the Public Prosecutor. To answer this question it would be necessary to look into the relevant provision of law.

Sub section (4) of section 36A of the Narcotic Drugs and Psychotropic Act, 1985 provides outer limit for filing of the chargesheet/complaint against the persons accused of the offence punishable u/s 19 or 24 or section 27A or for offences involving commercial quantity of the NDPS as 180 days. However, the proviso to sub section (4) reads as under:

Provided that, if it is not possible to complete the investigation within the said period of 180 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 180 days

The public prosecutor therefore plays a key role in the scheme for extension of time to file complaint/chargesheet. The public prosecutor is a watch dog who is expected to scrutinize the progress of the investigation, apply his mind and take conscious decision as to the need to keep the accused in custody. This mechanism has been devised in order to ensure the legislative intent not to keep the accused in custody unreasonably and to grant extension only on the report of the public prosecutor.

In the instant case there is nothing to indicate that this mechanism provided by the law was resorted to. There is no answer coming forth either from the application dated 31.1.2010 or the reply to this application dated 19.5.2010 as to why such important mechanism envisaged by law was not resorted to. Express legal provisions-Proviso to sub section (4) of section 36A of the Narcotic Drugs and Psychotropic Act, 1985, requiring the report of the Public Prosecutor for extension of time to file complaint/chargesheet beyond the period of 180 days, clearly declines any liberty to the Investigating Officer to directly approach the Court without the intervention of the Public Prosecutor. Obviously, the present circumstances give right to the accused to seek bail and further afford material to suspect that the person/s concerned with the investigation have procured such circumstances. In the result, the applicant qualifies to get a bail in the present matter merely on the technical ground. Care therefore needs to be exercised in granting bail, particularly when the accused person is a foreigner. Hence the Order:-

The applicant/accused shall be released on personal bond of Rs.1,00,000/-(Rupees One lakh only) with one or two sureties in the like amount to the satisfaction of the Special Court subject to the following conditions:

(a) shall keep his passport deposited with the Central Excise, Narcotic Cell, Panaji, Goa.

(b) shall not leave state of Goa without permission of this Court.

(c) shall report to the Head office of the Central Excise Narcotic Cell, Panaji Goa, on every Monday between 10.00am and 2.00p.m till filing of the chargesheet.