Subhadra Debbarma And Ors vs State Of Tripura

Both the aforestated bail applications have been taken up and heard together since both the petitioners have filed two separate applications under Sections 439 of CrPC for granting bail of the accused persons in connection with the same Kakraban Police Station case No.2019 KKB 079 under Sections 22(c)/25/29/27A of the NDPS Act, 1985, corresponding to Special(NDPS) 05 of 2019, which is pending in the Court of learned Special Judge, Gomati Judicial District, Udaipur, Tripura and they have been in jail custody for more than 200 days.

Petitioner, Smt. Subhadra Debbarma in BA No.20 of 2020 is the wife of accused person, Rupan Miah and the petitioner, Md. Jamal Miah in BA No.21 of 2020 is the father of accused person, Halim Miah and both are permanent residents of the State of Tripura, and they are authorized to file the present bail applications on behalf of the respective accused persons.

As per the prosecution case, one Sri Sankar Saha, S.I. of Kakraban Police Station lodged a complaint to the Officer-In-Charge of Kakraban P.S. to the effect that on 05.08.2019, in the afternoon at about 1600 hrs., he along with his team was performing vehicular mobile duty at Ichachara area vide KKB PS GDE No.23 dated 05.08.2019 and at that time, he received one information from one of his secret sources that the local people of Murapara detained one person with huge amount of narcotic drugs in his possession and wanted immediate police presence. The matter was informed to the Sub-Divisional Police Officer(SDPO), who was also on mobile duty at Ramesh Chowmuhuni. Led by said SDPO they reached at Murapara and found Halim Miah, the accused person in Bail Application No.21 of 2020 who was detained by the local people. The local people informed the police personnel that they were watching suspicious movement of the accused person, Halim Miah and another Jabbar Ali alias Manu, and in their effort they were successful to catch the accused person, Halim Miah along with huge contraband drugs, but, Jabbar Ali alias Manu fled away. Subsequently, accused person Halim Miah being interrogated, disclosed the name of his associate Rupan Miah, the accused person in Bail Application No.20 of 2020, involved in the said business. Ultimately, police recovered one plastic carry bag and on search found 380 numbers of small transparent plastic containers filled with pink coloured powder substances, suspected to be brown sugar. The police further recovered and seized total 75 numbers of YABA tablets, 37 numbers of Tramadol HCI Paracetamol & Dicyclomine HCI capsules in 5 strips. Police accordingly registered an FIR as stated above.

Both the accused persons were arrested. They were produced before the Special Judge, bail applications were moved, and lastly, vide order dated 10.02.2020, the learned Special Judge rejected the bail application of the accused persons. Hence, these petitions.

Heard Mr. S. Lodh, learned counsel appearing for the accused person, namely Rupan Miah and Mr. D. Datta, learned counsel appearing for the accused person, namely Halim Miah, who adapted the submissions of the learned counsel, Mr. Lodh. Also heard Mr. Ratan Datta, learned P.P. appearing for the State respondent.

Mr. Lodh, learned counsel for the petitioners submitted that both the accused persons are entitled to be released on default bail in terms of Section 36A sub-section (4) of the NDPS Act, read with Section 167(2) of CrPC since the accused persons have been in custody beyond the expiry of the statutory period of 180 days.

On the other hand, Mr. Datta, learned P.P. appearing for the State respondents submitted that the investigating officer has filed an application under Section 36A(4) of the NDPS Act before the learned Special Judge praying for extension of time for completion of investigation and also to pass an order for further detention of the accused persons in jail custody for the purpose of further investigation. Thus, according to learned P.P., on the basis of such an application filed by the investigating officer to the Court of learned Special Judge, the investigating officer had fulfilled the requirements under Section 36A(4) of the NDPS Act. The learned P.P. finds no error in the order dated 10.02.2020 whereby the learned Special Judge rejected the bail applications made by the accused persons on the basis of the application submitted by the I.O.

Mr. Lodh, learned counsel for the accused persons had pressed into service two decisions of the Apex Court in Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. reported in (1994) 4 SCC 602 and Sanjay Kumar Kedia alias Sanjay Kedia vs. Intelligence Officer, Narcotics Control Bureau & Anr. reported in (2009) 17 SCC 631, to counter the submission of learned P.P.

I have heard and considered the rival submissions of the learned counsels of the parties to the lis and scaled the two judgments as referred to supra in the light of the present cases. I have also perused the records and the case diary produced before me.

The last order dated 10.02.2020 passed by the learned Special Judge, Court No.2, Gomati Judicial District, reads as under:

"An application U/S. 36A(4) NDPS Act, 1985 has been filed by Ld. Addl. PP praying for extension of the judicial custody of the two accused persons as the investigation cannot be completed within a period of 180 days.

Perusal of the bail applications shows that no new or fresh ground other than default bail U/S. 167(2) Cr.P.C. has been made out.

In view of the same and the fact that commercial quantity is involved, this Court is not inclined to enlarge the accused persons on bail at the moment.

Bail prayer is accordingly rejected."

The said order leads me to re-visit Section 167 of the CrPC. The section deals with the procedure wherein investigation cannot be completed within twenty-four hours and the various sub-sections under it provide for the maximum period beyond which a person cannot be detained and this period varies between 60 and 90 days keeping in view the gravity of the offence-the maximum period of 90 days being provided with respect to the offences punishable with death, etc. and 60 days for other offences, and if the investigation is not completed within this period, the accused is entitled to bail under Section 167 sub-section(2) if he makes an application for that purpose and is prepared to furnish bail.

In the case of Sanjay Kumar Kedia(supra), the Apex Court while dealing with the scopes and applicability of Section 167 of CrPC held that "Section 167 does not envisage an extension of the period of detention of an accused in custody beyond the specified periods. The legislature, however, thought in its wisdom, that certain special categories or situations required that the investigating agencies should be given more time to investigate a matter and to file their complaint or charge-sheets and such provisions have been made under special statutes. The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called "the TADA") and the Act are two such special legislations."

At this juncture, it would be appropriate to reproduce Section 36-A(4) of the Act insofar as it is relevant:

"36-A. Offences triable by Special Courts.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a)-(d) * * * (2)-(3) * * *

(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 (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.

(5) * * *"

Thus, considering various categories of offences under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code has been increased to 180 days. However, the proviso of Section 36A authorizes further period of detention, which may further be extended to one year, provided the stringent conditions as envisaged in the provision are satisfied and are complied with. The conditions which are to be strictly followed are:

(i) a report of the Public Prosecutor,

(ii) which indicates the progress of the investigation, and

(iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and

(iv) after notice to the accused. [Sanjay Kumar Kedia(supra), SCC p.635, para 12]

Here, I must say that the language as envisaged in Section 36A(4) and Section 167(2) are clear, unambiguous and explicit. Needless to say, it is the settled principle that more stringent the provision is, the strict of its observance. Under the rule of statutory interpretation, it is the duty of the court to read the clear language of its statute and if the courts find that the language is clear and does not suffer for any ambiguity, and is enough to achieve the object of the legislatures, then the court has no power to add or alter or import any language alien to the statute.

In the case of Sanjay Kumar Kedia(supra), the Apex Court held that the question raised in the said case is squarely covered by the judgment of the Apex Court in the case of Hitendra Vishnu Thakur(supra), where the Bench was dealing with the impact of proviso inserted as clause (bb) in sub-section(4) of Section 20 of TADA, which is pari material with the proviso to sub-section(4) of Section 36A of the Act. In the case of Hitendra Vishnu Thakur(supra), it was observed as under:[SCC p.628, para 21]

"21. ... It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the Public Prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the Public Prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party."

The proviso of Section 36A(4) clearly speaks about the report of the Public Prosecutor. The said proviso does not provide any power to the investigating officer to file/submit an application for extension of time for completing investigation. It clearly envisages a report and that too by a Public Prosecutor and none else. Application for extension of time by no stretch of imagination could be said to be a report of the Public Prosecutor as enshrined under Section 36A(4). In this regard, the Apex Court while deciding the case of Hitendra Vishnu Thakur(supra) had observed thus:[SCC, pp 630-31, para 23]

"23. ........... 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 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 sub-section (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 substitute for the report of the Public Prosecutor."

In the case of Sanjay Kumar Kedia(supra), the Apex Court while taking note of the principle as enunciated above by the Apex Court in Hitendra Vishnu Thakur(supra) further had observed as under:[SCC p.637, para 16]

"16. The Court further went on to say that even if the application for extension of time was either routed through the Public Prosecutor or supported by him would not make the said application a report of the Public Prosecutor. Mr Bhattacharjee has, however, pointed out that the applications for extension filed by the Public Prosecutor under Section 36-A(4) of the Act did satisfy the aforesaid conditions and merely because an independent report had not been tendered would not change the nature of the application."

Thus, from the aforesaid principles, as laid down by the Apex Court, we find that a Public Prosecutor is appointed by the State under the Code of Criminal Procedure and he is not a part of the investigating agency. Further, the Public Prosecutor himself is an independent statutory authority. The investigating agency is not empowered under Section 36A(4) of the NDPS Act to file any application for extension of time to complete the investigation on its own motion. The investigating agency must make a request to the Public Prosecutor or submit an application and report to the Public Prosecutor indicating reasons about the necessity for further detention of the accused person involved in such special category of cases. The Public Prosecutor on receipt of such request or application and report submitted by the investigating agency has to examine such application and/or report as submitted by the investigating agency applying his independent mind before he is satisfied that there are sufficient reasons to submit a report as envisaged under Section 36A(4) of the Act to the Special Judge. In his report, the Public Prosecutor has to provide justifiable reasons for extending the detention period of an accused person beyond the statutory period of 180 days and also will indicate the progress of the investigation, because the report of the Public Prosecutor is not a mere formality but a very vital piece of report, keeping in view that its acceptance curtails the liberty of an accused as enshrined in Article 21 of the Constitution of India. Again, such report must conform to the requirements as envisaged under Section 36A(4) of the NDPS Act. Lastly, the request or any prayer for extension of time by way of application made by an investigating officer is in no manner be a substitute for the report of the Public Prosecutor. In furtherance thereof, even if the application for extension of time is either routed through the Public Prosecutor or supported by him would not make the said application a report of the Public Prosecutor. (emphasis supplied)

Keeping in mind the aforesaid principle, it is necessary herein to reproduce the application, as submitted by the investigating officer in the case in hand, which is as under:-

"IN THE COURT OF THE SPECIAL JUDGE(COURT NO-2) GOMATI JUDICIAL DISTRICT: UDAPUR CASE NO-Special-5(NDPS)2019.

The state of Tripura ...................Petitioner.

Vrs.

Sri Halim Miah & Others...........Accused person.

In the matter of :-

An application U/S-36A Sub Section-4 of NDPS Act.

Sir,

In the above noted case Prosecution most humbly prays that in this case I/O cannot complete investigation within period of hundred and eighty days.

So, In this case detention is required for accused namely 1) Halim Miah and 2) Rupom Miah.

If accuseds Halim Miah and Rupam Miah enlarge on bail they surely tempered evidence and compel the witnesses remain mum. They may also commit any harmful act upon the witnesses and thus proper investigation will be vitiated. Another drug pleadler namely Jabbar Ali is still absconding.

So, Under the above fact and Circumstances your petitioner prays before hon‟ble court to pass an order to remain the said accused in jail custody for further their investigation and fare ends of justice.

A N D

For this act of kindness the petitioner as in duty bound shall ever pray."

A bare perusal of the said application, it would reveal that though it was routed through the Public Prosecutor, but, it is apparent that the application does not satisfy the mandatory requirements and conditions as stipulated in Section 36A(4) of NDPS Act. It does not indicate even remotely any application of mind on the part of the Public Prosecutor. No specific reasons have been assigned and even the progress of investigation has been set out in the petition. The application has been filed in a most casual manner in total disregard of the essential and mandatory requirements as envisaged under sub-section(4) of Section 36A of the NDPS Act. According to me, by no stretch of imagination the said application can be treated as a substitute of the report of the Public Prosecutor.

In the instant case, the investigating agency could not submit police report within the statutory period of 180 days since the investigation has not been completed yet. No report has been submitted by the Public Prosecutor, complying the essential requirements of sub-section(4) of Section 36A of the NDPS Act. Even, the applications for extension of detention period of the accused persons were filed after expiry of 180 days.

In the case of Sanjay Kumar Kedia(supra), the Apex Court while defying the phrase "on the report of the Public Prosecutor" had observed thus:[SCC, pp.639-640, para 23]

"23. ........................................................................................

Now, if we see the phrase "on the report of the Public Prosecutor" vis-à-vis the petition dated 2-8-2007 sent by the Intelligence Officer and submitted through the Public Prosecutor and was moved in his presence-we must make a purposive construction of the phrase "report of the Public Prosecutor" and give it a wider and meaningful implication without doing violence to the Statute.

Proviso to sub-section (4) of Section 36-A has to be construed in relation to the subject-matter covered by the said section. The general rule in construing an enactment which contains a proviso is to construe them together without making either of them redundant or otiose.

In other words, the language of a proviso, even if general, should be normally construed in relation to the subject-matter covered by the section to which the proviso is so appended."

In the instant case, the learned Special Judge vide his order dated 10.02.2020 has further extended the detention period of the accused persons while rejecting their bail applications, which, according to me is per se illegal and contrary to sub-section(4) of Section 36A of the NDPS Act. In my considered view, the learned Special Judge could not read and construe the true meaning, and considered all the provisos appended to sub-section(4) of Section 36A of the Act as well as Section 167(2) of CrPC.

In view of the aforesaid analysis and discussions, both the accused persons, namely Rupan Miah and Halim Miah, as of right, are entitled to be released on default bail since the statutory period of detention of 180 days has been expired by this time.

Accordingly, this Court allows both the bail applications as referred to above. Consequent to which, the both the accused-persons shall be released on bail by furnishing a bond of Rs. 2 lakh each with two sureties each of the like amount to the satisfaction of the Special Judge, Court No. 2, Gomati Judicial District, Udaipur. However, the accused-person, namely, Rupan Miah shall appear before the investigating officer thrice in a week till completion of the trial and in course of trial the accused, Rupan Miah shall not leave the jurisdiction of Gomati District without prior permission of learned Special Judge, Court No. 2, Gomati Judicial District, Udaipur. Mr. D. Datta, learned counsel has submitted that the accused, Halim Miah is a permanent resident of Bishalgarh under Sepahijala District. Hence, the accused-person, namely, Halim Miah shall appear before the investigating officer thrice in a week till completion of the trial and in course of trial the accused, Halim Miah shall not leave the jurisdiction of Bishalgarh Sub-Division and Gomati Judicial District without prior permission of learned Special Judge, Court No. 2, Gomati Judicial District, Udaipur.

The bail applications are accordingly allowed in the above terms and stand disposed.