SANJAY KUMAR KEDIA @ SANJAY KEDIA v.

INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU AND ANR. (Criminal Appeal Nos. 2008-2009 of 2008)

AUGUST 20, 2009* [Harjit Singh Bedi and Dr. B.S. Chauhan, JJ.]

2010 (1) SCR 555

O R D E R

These appeals arise out of the following facts:

1.  The  appellant  was  arrested  on  12th  February,  2007  for  offences  

punishable  under  Sections  24,  29,  30  and  38  of  the  Narcotic  Drugs  and  

Psychotropic  Substances  Act,  1985  (hereinafter  called  the  ‘Act’)  and  was  

produced before the Special Judge who remanded him to judicial custody for  

fifteen days, the period being extended from time to time. The appellant also  

moved an application for bail before the Special Judge. This application was  

rejected on 28th May, 2007 whereafter the appellant moved the Calcutta High  

Court.  This  application  was  rejected  on  7th  June,  2007.  The  appellant,  

aggrieved by the order of 7th June 2007, preferred a special leave petition in  

this Court on 10th July,  2007 which too was dismissed on 3rd December,  

2007. It appears that as the period of 180 days fixed under Section 36A (4) of  

the  Act  read  with  Section  167  (2)  of  Code  of  Criminal  Procedure,  1973  

(hereinafter  called  the  Code)  was  to  expire  on  10th  August,  2007,  

Respondent No.1, the Narcotics Control Bureau, filed an application under  

Section 36A (4) on 2nd August, 2007 seeking a further period of six months  

for the completion of the investigation and the filing of the complaint.  The  

Special Judge allowed this application by Order dated 2nd August, 2007. As  

the extended period would have expired on 2nd February, 2008, the Bureau,  

moved yet another application under Section 36A (4) of the Act which too was  

allowed  on  30th  January  2008  and  the  time  for  the  completion  of  the

investigation  was  extended  to  13th  February  2008,  which  would  have  

(statedly) brought the total custody to 1 year and 2 days.  

2. The appellant moved another application for bail under Section 36A (4)  

of the Act read with Section 167 (2) of the ‘Code’ on 4th February, 2008 on  

the plea that the investigation had not been completed within the stipulated  

period of time fixed by the Special Judge. This application was rejected on  

13th February, 2008. The appellant also moved CRR No.411 of 2008 in the  

Calcutta  High Court  on  7th  February,  2008 against  the  Order  dated 30th  

January, 2008 whereby an extension of six months had been granted. The  

complaint was also filed by respondent No.1 on the 7th February 2008. The  

appellant  filed  CRR  No.765  of  2008  before  the  Calcutta  High  Court  

challenging the order dated 13th February, 2008 rejecting the application for  

bail. On 6th August, 2008, a learned Single Judge of the Calcutta High Court  

released both the CRR’s aforementioned for want of jurisdiction as they were  

required to be heard by a Division Bench. Both the matters came before the  

Division Bench and were dismissed by order dated 5th September, 2008. The  

present appeal has been filed impugning this order.

3. Leave was granted in this matter on 5th December, 2008 and though,  

both the respondents i.e. the Narcotic Control Bureau and the State of West  

Bengal have been served, the former has not put in appearance despite the  

passage  of  almost  a  year.  The  State  of  West  Bengal  Respondent  No.2  

however, which is not really the contesting party, has filed a counter and is  

also  represented  by  its  counsel,  Mr.  Avijit  Bhattacharjee.  He,  at  the  very  

outset, pointed out that he felt gravely handicapped on account of the non-

appearance of respondent No.1, the primary party respondent,  but he has  

chosen to go ahead as it appears that the first respondent was not interested  

in contesting the case.

4.  The  broad  facts  given  above  have  not  been  controverted  by  the  

respondents. Mr. Lalit, the learned counsel for the appellant has made two  

submissions before us:

(i) the two applications for extension dated 10th July, 2007 and 30th  

January, , 2008 did not satisfy the conditions laid down in Section  

36A (4) of Act and were without notice to the accused and as such  

the orders were a nullity  and any extension of  time beyond 180  

days was,  therefore,  contrary to law. For this submission he has  

placed reliance on the case of Hitendra Vishnu Thakur and others  

Versus State of Maharashtra and others [1994 (4) SCC 602].  

(ii) that as the second extension would have ended on 2nd February,  

2008  and  the  appellant  had  filed  an  application  for  bail  under  

Section  36A  (4)  of  the  Act  on  4th  February,  2008,  the  said  

application was pending for consideration before the Special Judge  

when the complaint had been filed on the 7th February, 2008, the  

subsequent act of the filing the complaint did take away the right  

which had accrued to the appellant on 2nd February, 2008 as had  

been held by this Court in Uday Mohanlal Acharya Versus State of   

Maharashtra [2001 (5) SCC 453].

5.  Mr.  Bhattacharjee,  has,  however,  supported  the  judgment  of  the  

Special  Judge and the  High Court  by submitting  that  two applications  for  

extension of time had been made by respondent no.1 in accordance with the  

provisions of Section 36A (4) of the Act and that the Special Judge, had, after  

applying his mind, granted the extensions. He has, further, pointed out that  

both the Special Judge and the High Court had taken all relevant factors into  

consideration and keeping in view the larger purpose behind the Act and the  

great social and legal ramifications, which it raised, required that it should be  

strictly enforced.

6. He has also pointed out that the submission that the period of 180 days  

had ended on 2nd February, 2008 was incorrect as the calculations would  

show that this period was to expire on 8th February, 2008 and the complaint  

having been filed a day earlier made the ratio of the judgment in Uday Mohan  

Lal Acharya’s case (supra), inapplicable.

7. We have considered the arguments of learned counsel for the parties.  

Section  167  of  the  Code  deals  with  the  procedure  wherein  investigation  

cannot be completed in 24 hours and the various sub-sections 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  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.  It  will  be seen 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.

8. The Terrorist and Disruptive Prevention Act, 1987 (hereinafter called  

the ‘TADA’) and the Act are two such special legislations. Section 36A (4) of  

the Act in so far as is relevant, reads as under:  

“Section 36 A.  

(1)  Notwithstanding  anything  contained  in  the  Code  of  Criminal  

Procedure, 1973 (2 of 1974),-

(a) xxxx

(b) xxxx

(c) xxxx

(d) xxxx

(2) xxxx

(3) xxxx

(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  

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) xxxx

9. 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:

(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.

10. The question to be noticed at  this stage is as to whether the two  

applications for extension that had been filed by the public prosecutor seeking  

an extension beyond 180 days met the necessary conditions. We find that the  

matter need not detain us as it  is no longer res integra and is completely  

covered by the judgment of this Court in  Hitendra Vishnu’s case (supra). In  

this case, the Bench was dealing with the proviso inserted as clause (bb) in  

Sub-section (4) of Section 20 of TADA, which is parimateria with the proviso  

to  Sub-Section  (4)  of  Section  36-A  of  the  Act.  This  Court  accepted  the  

argument  of  the  accused  that  an  extension  beyond  180  days  could  be  

granted  but  laid  a  rider  that  it  could  be  so  after  certain  conditions  were  

satisfied. It was observed :

“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.

11. Mr. Lalit, has further contended that the two applications for extension  

of time could not, by any stretch of imagination, be said to be reports of the  

public prosecutor as envisaged under Section 36A (4) and has again referred  

us to the case ibidem:

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 this 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.

12. The  court  further  went  on  to  say  that  even  if  the  application  for  

extension  of  time  was  either  rooted  through  the  public  prosecutor  or  

supported by him would not make the said application a report of the public  

prosecutor.

13. Mr. Bhattacharjee has, however, pointed out that the applications for  

extension filed by the public prosecutor Section 36A (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. We reproduce  

herein  the  application  dated  2nd  August,  2007  for  extension  of  time  in  

extenso:

1. That, the aforesaid person was arrested on 12.02.2007 in connection  

with illegal distribution of psychotropic substances externally through the  

internet.

2.  That  he  was  produced  before  your  honour  on  12.02.2007  and  

thereafter he was remanded to judicial custody in Dum Dum Correctional  

Home.

3. That the investigation of the case is still on.

4. That a connected/related case against the associates of the present  

accused  person  is  being  investigated  by  the  Drug  Enforcement  

Administration  (DEA),  USA  and  the  investigation  report/collected  

documents are highly relevant/essential in proving the case. In this regard  

necessary steps, sending letters to that competent authority, has already  

been taken.

5. That, the Servers, Laptop, CDs etc. as seized in connection with this  

case, which has already been reported before Your Honour earlier, were  

also been sent to the Central  Forensic Science Laboratory (CFSL) for  

deciphering the data on 20.2.07 and several reminders have been sent  

for obtaining the reports, but till  date same could not be received. It is  

pertinent to mention that a letter from the end of CFSL has been received  

by NCB, wherein they informed that in a short time it is not possible to  

send the report.

6. That, considering the exigencies of the report of CFSL in proving the  

case against the accused person the prosecution has to pray for further  

extension of time.

7.  That,  as  per  the  provision  of  Section  36A  Clause  (4)  proviso  the  

prosecution  is  submitting  this  petition  for  extension  of  time  for  filing.  

Complaint after completing the investigation accepting the report of the  

prosecution  kept  in  the  case  file  submitted  herewith  showing that  the  

detention of the aforesaid accused is further necessary.

In  the  abovementioned circumstances,  it  is  hereby prayed  before  

your Honour that,

A further period of 6 months may kindly be given for the completion  

of investigation and filing of complaint. And the accused person may be  

remanded in judicial custody for further period.

And for this act of kindness, the petitioner as is duty bound shall ever  

pray.

14. A bare perusal of this application shows that it has been filed by the  

investigating officer of respondent No.1 and does not indicate even remotely  

any application of mind on the part of the public prosecutor. It further does not  

indicate the progress of the investigation, nor the compelling reasons which  

required  an  extension  of  custody  beyond  180  days.  This  application  was  

allowed by the Special Judge on 2nd August, 2007 i.e. on the day on which it

was filed which also reveals that no notice had been issued to the accused  

and he was not even present in Court on that day.  

15.  The  second  application  dated  30th  January,  2008  is  even  more  

incomprehensible. We reproduce the same hereinbelow:

IN THE COURT OF LD.JUDGE-SPECIAL COURT NDPS

ACT KOLKATA AT BARASAT NORTH 24 PGS

CASE NO.N-23/2007

Union of India

Versus

Sanjay Kedia ....Accused Person

The humble petition on behalf of the prosecution.

MOST RESPECTFULLY STATES;

1. That today is the date fixed for submission of the complaint.

2. That as the prosecution is not in a position to submit the complaint  

today hence prays for further time for the same.

Under the above circumstances it is prayed that a short date may  

kindly allowed for the same for ends of justice

AND

For this act of kindness shall ever pray your petitioner as is duty  

shall ever pray.”

A bare perusal of this unsigned application would reveal that it does not  

even  remotely  satisfy  the  tests  laid  down  in  Vishnu  Thakur’s  case.  The  

Special Judge allowed this application as well on the day it was filed by a  

cryptic order and without notice to the accused in the following terms:

“Accd.  Sanjay  Kedia  is  produced  from  J/C.  Accd.  Filed  a  

vakalatnama.  Prosecutor  files  Hazira.  Prosecution  also  files  a  petition

praying for time. Considered prayer for time is allowed to 13.2.2008 for  

production of the accd & report from I.O.”

16. We are, therefore, of the opinion that the extensions granted to the  

investigating department under the proviso to Section 36A (4) did not satisfy  

the conditions laid down therein and both the extensions,  therefore,  being  

contrary to law, must be struck down accordingly.  

17. As would appear from what has been held above we must now deal  

with the order of the Special Judge dated 13th February, 2008 whereby the  

application for bail filed by the appellant under the default clause had been  

dismissed.  The  special  Judge  observed  that  as  the  Supreme  Court  had  

rejected the prayer  for  bail  on  4th  February,  2008 and that  the  period of  

investigation had been extended on two occasions and that the complaint had  

been filed before the last extended date had expired and having regard to the  

facts of the case in as much that the allegations were serious, the appellant  

was not entitled to bail. The High Court while noticing the decision in Hitendra  

Vishnu Thakur’s  case (supra)  has deviated  from its  observation  and side  

stepped  the  very  categorical  directions  given  by  this  Court,  on  wholly  

irrelevant  considerations.  We  reproduce  certain  observations  of  the  High  

Court judgment to support our opinion :

The  petition  dated  02/08/2007  seeking  to  extend  the  period  of  

investigation  for  a  further  period  of  six  months  was  presented  by the  

Intelligence Officer of the opposite party No.1. However, the same was  

not  presented  by the  learned  Public  Prosecutor  himself  but  the  order  

passed by the learned Trial Court would show the same was proceeded  

in the presence of the learned Public Prosecutor.  

However, “Specific reasons” and the “progress of investigation” has  

been set out in the petition dated, 02/08/2007 wherein it was shown that  

the  offence  against  the  petitioned  and  his  associates  are  being  

investigated even in the United States of America and several electronic

equipment, which have been seized, were sent to the Central Forensic  

Science Laboratory for deciphering and the Report is yet to be received.  

Further time was sought for and the learned Trial Court applied its judicial  

mind on the basis of a subjective satisfaction quoting the substance of the  

prayer  and allowed the time.  As such,  other  portion of  the provisio of  

Subsection (4) of Section 36A of the said Act with regard to the progress  

of  investigation and the specific reasons for detention of  the petitioner  

beyond the period of one hundred eighty days, in our humble view, have  

been complied with.  

Now, if we see the phrase “on the report of the Public Prosecutor”  

vis-à-vis the petition dated 02/08/2007 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 word “report of the Public  

Prosecutor” and give it a wider and meaningful implication without doing  

violence to the Statue.  

Proviso to  sub-section (4)  of  Section 36A 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 provisio 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 provisio is so appended.  

Once we have seen the efficacy of the order passed on 02/08/2007  

which cannot be sullied on the reasons seen by us earlier-we find the  

undisputed position remains that  the period of  further  detention of  the  

present petitioner stands extended till 02/02/2008.  

xxxxxxxxxxxxxxx

Now, comes the legality of the order passed on 30/01/2008 passed  

by the learned Trial Court. Of course, the said order was preceded by a

petition filed by the Public Prosecutor himself outlining the fact since the  

Prosecution is not in a position to file the complaint some short time may  

be  allowed.  Acting  on  the  basis  of  the  same  the  learned  Trial  Court  

extended the period till 13/02/2008.

A  put  up  petition  was  preferred  on  behalf  of  the  petitioner  for  being  

released on bail on 04/02/2008 but in the meanwhile on 07/02/2008 the  

petition of complaint was filed on behalf of the Opposite Party No.1.

From a  plan  reading  of  the  sequence  of  events  it  can  be  easily  

deciphered that the first phase of extension was up to 02/02/2008 which  

was  subsequently,  extended  by  the  order  dated  30/01/2008  till  

13/02/2008. It  is within the said period of extension i.e. on 07/02/2008  

Petition of Complaint has been filed.  

xxxxxxxxxxxxxxxxxxxxx

In the light of our wholesome assessment of the entire situation, we  

would be of the view that the position as projected by Shri Basu turns out  

to be more academic than realistic. It has to be ‘Just Justice’. Justice in  

the sense of Law and the Constitution and not to the individual mindset of  

the Court. The said Act and its ramification has to be understood in a  

wider context.  

18. With great respect, these findings do no justice to the observations of  

this court in Vishnu Thakur’s case as the very specific observations therein  

have been noticed and ignored by the Division Bench.

19.  In  the  light  of  what  has  been  held  above,  Mr.  Lalit’s  second  

submission as to the expiry of the maximum period of detention of one year  

based on Uday Mohan Lal Acharya’s case (supra), need not detain us more  

particularly, as the facts are disputed by Mr. Bhattcharjee. We are, therefore,  

not required to go into this aspect of the matter.

20. We accordingly allow this appeal, set aside the order of Special Judge dated  

13th February 2008 and High Court dated 5th September, 2008 and direct that the  

appellant be released on bail.