TaxTMI 
TaxTMI 
2011 (3) TMI 1414
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....as arrested for alleged possession of 3.88 grams of Cocaine, 0.5 grams of LSD, 16.45 Grams of MDMA. On 16th July, 2010 since the period of 180 days was to expire, the application seeking extension of time to file chargesheet was filed, which was granted. Thereafter on 15th September, 2010, another application seeking extension of time was filed, which was also granted. There is no dispute that both these orders were passed without giving opportunity of being heard to the applicant. Thereafter, on 10th November, 2010, the application under Section 36(A)(4) of The Narcotic Drugs and Psychotropic Substances Act, 1985 ('The Act' for short). seeking extension of time was filed by the learned Public Prosecutor. On the same day, the learned Specia....
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....'Souza, the impugned order dated 10th November, 2010 discloses total non-application of mind by the Public Prosecutor as well as the learned Special Judge and, therefore, the applicant is entitled to be released on bail notwithstanding the fact that subsequently chargesheet has been filed. In support of his submissions Mr. D'Souza, relied upon the following judgments: (i) Bhagaban Pradhan and others v. Jayaram Mohanty and others; 1995 CRI. L. J. 607. (ii) Babubhai Bhimjibhai V. The District Magistrate, Godhra and others; 1990 Cri. L. J. 1959. (iii) Ateef Nasir Mulla V. State of Maharashtra; CDJ 2005 SC 623. (iv) Rafael Palafox Garcia V. The Union of India and another; CDJ 2008 BHC 1489. (v) ....
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....e Act. Mr. Ferreira, placed reliance upon the judgment of the Delhi High Court in the case of Narcotics Control Bureau vs. Ashok Mittal and another dated 4 th January, 2011 in Criminal Miscellaneous Application no.435/2009. 7. In rejoinder, Mr. D'Souza relied upon the judgment of the Apex Court in the case of Uday Mohanlal Acharya V. State of Maharashtra; CDJ 2001 SC 230 and submitted that once challan was not filed within the period stipulated under Section 167(2) of Cr.P.C., the applicant/ accused has indefeasible right to get bail and subsequent filing of chargesheet would not extinguish the right of the accused to get bail. 8. I have carefully considered the rival submissions, perused the record and judgments relied ....
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....or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. 10. It is pertinent to note that Section 20(4)(bb) of TADA Act and Section 36(A)(4) of The Act. are i....
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.... is in compliance with Section 36(A)(4) of The Act. I do not find any merit in the submission of Mr. D'Souza that there was non-application of mind either on the part of learned Public Prosecutor while seeking extension of time or on the part of the learned Special Judge while passing the order dated 10th November, 2010. 11. Thus, the applicant was given opportunity of being heard before passing of the order dated 10th November, 2010 granting time to file the chargesheet. Merely because the applicant was not heard before passing the orders dated 16th July, 2010 and 15th September, 2010, his detention from November, 2010 does not become illegal. This being the legal position, in my considered view, the applicant at this stage, afte....