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Judgment
A.P. Lavande, J.—Rule. By consent of the learned Counsel for the parties heard forthwith.
By this petition under Article 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure (''the Code'' for short), the Petitioner challenges the order dated 29th December, 2010 passed by the Special Judge, N.D.P.S. Court, Mapusa (''the Special Court'' for short) granting applications dated 7th September, 2010 and 3rd November, 2010 for extension of time for filing the chargesheet under the Narcotic Drugs and Psychotropic Substances Act, 1985 (''the Act'' for short) and rejecting bail application filed by the Petitioner.
On 13th January, 2010, the Petitioner was arrested on the allegation that he was found in possession of 34 grams of ecstasy tablets, 26 grams of MDMA, 17 grams of cocain and 6 ml LSD and offence vide Crime No. 2/2010 u/s 21(b) and 22(c) of the Act was registered in the Anti Narcotic Cell Police Station, Panaji. Since the period of 180 days in filing chargesheet was expiring on 11th July, 2010, the Respondent sought extension for a period of 60 days which was granted. The said period was to expire on 8th September, 2010. Before the expiry of the said period, an application was made for extension of time which was granted by order dated 7th September, 2010. In the meantime, the Petitioner had filed an application for bail which was also dismissed by order dated 20th September, 2010. The Petitioner filed Writ Petition No. 83/2010 challenging the said orders. In the meantime, the Respondent again sought extension of time to file chargesheet which was granted by order dated 3rd November, 2010. The said order was also challenged in Writ Petition No. 83/2010. Vide order dated 21st December, 2010, this Court allowed Writ Petition No. 83/2010 and quashed and set aside the orders dated 7th September, 2009 and 3rd November, 2010 primarily on the ground that before granting extensions, the Petitioner was not heard. The Petitioner was given an opportunity to file fresh application for bail.
Pursuant to the said order, the Petitioner filed Special Bail Application No. 75/2010 before the Special Court. On 22nd December, 2010, the Respondent filed chargesheet without any report from C.A. And/ or CFSL. The bail application was opposed by the Respondent. After giving an opportunity of being heard to the Petitioner, the Special Court by order dated 29th December, 2010 maintained the orders dated 7th September, 2010 and 3rd November, 2010 and dismissed the bail application filed by the Petitioner. Aggrieved by the said order, the Petitioner has filed the present petition.
Mr. D''Souza, learned Counsel appearing for the Petitioner / accused submitted that the learned Public Prosecutor did not apply his mind while seeking extension of time to file chargesheet and, therefore, the said orders granting extensions to file chargesheet are unsustainable in law. Learned Counsel further submitted that the Investigating Officer in his report lodged in remand applications had clearly stated that tests were carried out with kit box which was available with the investigating agency which prima facie disclosed that the substances found with the accused were narcotic drugs and psychotropic substances and, therefore, the fact that C.A. report was not available, was not a ground for seeking extension of time. He further submitted that the Respondent had filed chargesheet on 22nd December, 2010 without C.A. report and, therefore, the ground urged by the Respondent while seeking extension of time was nothing but an attempt to some how deny bail to the Petitioner. In support of his submissions, learned Counsel relied upon the judgment of the Apex Court in (i) Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and Anr. 2010 All MR 1310 , (ii) Rafael Palafox Garcia v. the Union of India and Anr. 2008 All MR 3031.
Mr. Ferreira, learned Public Prosecutor for the Respondent supported the impugned order and submitted that mere fact that the Respondent has filed chargesheet on 22nd December, 2010 is not a ground for setting aside the impugned orders in as much as the prosecution was compelled to file the chargesheet without C.A. report since the same was not available and the extended period was getting expired. He further submitted that subsequent filing of the chargesheet without C.A. report would not render the orders dated 7th September, 2010 and 3rd November, 2010 illegal. Learned Public Prosecutor further submitted that the Petitioner was found in possession of commercial quantity of drugs and as such, the Petitioner is not entitled to be released on bail.
I have carefully considered the rival submissions and perused the record and the judgments relied upon.
Before the Special Court, on behalf of the Petitioner/ accused, it was submitted that since chargesheet was filed without C.A. report earlier extensions granted were patently illegal. The Petitioner also relied upon the judgment in the case of Uday Mohanlal Acharya v. State of Maharashtra; 2001(1)BCR 577 in support of his submission that if chargesheet is not filed within the period stipulated u/s 167(2) of the Code, the accused is entitled for bail in default.
Perusal of the impugned order discloses that the Petitioner had not urged before the Special Court that the extensions granted by the Special Court were vitiated on the ground that testing of substances found was done on the spot with the help of kit box and, therefore, it was not necessary to await for the C.A. report. The Petitioner ought to have taken such a plea before the Special Court and invited a finding thereon. I am not inclined to entertain and deal with this aspect for the first time in writ petition under Article 227 and/ or in an application u/s 482 of the Code. If such point was urged before the Special Court, it was for the Special Court to deal with the same and give finding thereon either in favour of the prosecution or against the prosecution. The Petitioner having not raised such a point before the Special Court, in my opinion, it would not be proper exercise of jurisdiction for this Court to entertain such a ground for the first time and give finding thereon.
In so far as second submission made by learned Counsel for the Petitioner that chargesheet has already been filed on 22nd December, 2010 and, therefore, the earlier extensions granted, are rendered illegal is concerned, I find absolutely no merit in the said submission. Previous extensions granted u/s 167(2) read with Section 36(A)(4) of the Act, cannot be tested in the light of subsequent events. Therefore, I do not find any merit in this second submission also. In so far as the judgment in the case of Sanjay Kediya (supra) relied upon by the Petitioner is concerned, in the said case, the Apex Court held that the applications filed seeking extension of time were not in terms of Section 36(A)(4) of the Code since the first application was filed by the investigating officer and second application did not disclose that Public Prosecutor had applied his mind before seeking extension. In the present case, no material has been placed before me in support of the contention that the Public Prosecutor did not apply his mind while seeking extensions for filing the chargesheet. Therefore, the case of Sanjay Kediya does not advance the case of the Petitioner. In so far as the case of Rafael Palafox Garcia (supra) is concerned, the same also does not advance the case of the Petitioner in as much as in the said case the accused was found in possession of controlled substance and the learned Judge held that rigors of Section 37 of the Act would not be attracted and as such, bail could be granted. Therefore, such judgment also does not support the case of the Petitioner.
In the result, therefore, I do not find any merit in the petition filed by the Petitioner. Hence, Rule is discharged.