MANINDRA MOHAN SHRIVASTAVA, J.

(1.) This criminal revision is directed order dated 2.1.2010 passed by the Special Judge, N.D.P.S. Act, Jagdalpur in Remand Criminal Case No. 146/2009 whereby applicants application filed under Section 167(2) of the Cr.P.C. has been rejected.

(2.) The applicant was arrested on 11.6.2009 on the allegation that he was found in a vehicle, in which, 165.50 K.G. of ganja was kept. Offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") is alleged to have been registered against the applicant. As charge-sheet was not filed within a period of 180 days, the applicant moved an application on 1.1.2010 purporting to be an application under Section 167(2) of the Cr.P.C. for grant of bail on the submission that he was arrested on 11.6.2009, but as no charge-sheet could not be filed within a period of 180 days, he was entitled to grant of bail. Vide impugned order dated 2.1.2010, application has been rejected by the Special Judge stating that the reason assigned for delay in filing charge sheet is satisfactory, as report of the Forensic Science Laboratory has not been received and owner of the vehicle is also not traceable, and therefore, his statement could not be taken.

(3.) Learned counsel for the applicant argued that in view of the provisions contained in sub-section (4) of Section 36A of the Act, if the investigation is not completed within a stipulated 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 one hundred and eighty days. It is argued that in the present case, the Public Prosecutor failed to submit a report as required under sub section (4) of Section 36A of the Act, and therefore, the Special Court has committed illegality and acted beyond his jurisdiction in extending the period of one hundred and eighty days. Learned counsel for the applicant has relied upon a decision in the case of Hitendra Vishhu Thakur and Others v. State of Maharashtra and Others. 1994(2) Crimes 916: 1994(4) SCC 602.; Uday Mohanlal Acharya v. State of Maharashtra. 2001(3) Supreme 142: 2001(5) SCC 453. and Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and another. 2010(2) CCSC 687 (SC).

(4.) On the other hand, learned State counsel argued that by the impugned order, the Special Court has extended the time beyond 180 days taking into consideration the gravity of offence and also taking into consideration the reasons for delay in completion of investigation and submission of charge sheet. He refers to the impugned order to submit that as the Forensic Science Laboratory report was not received and the owner of the vehicle was not traceable, and therefore, statement could not be taken, hence, charge- sheet could not be filed within a period of 180 days. He further submits that application of the applicant for release on bail is not maintainable as the same was not filed on 180th day but on 205th day i.e. on 1.1.2010, He further submits that though the challan could not be filed within a stipulated period of 180 days, during the pendency of the case, now challan has already been filed, and therefore, the applicant is not entitled to benefit of grant of bail under Section 167(2) of the Cr.P.C.

(5.) Sub-section (4) of Section 36A of the Act clearly provides that in respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A 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". Sub-section (4) of Section 36A of the Act also provides 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.

(6.) From the reading the aforesaid provision, it is crystal clear that the proviso authorizes a yet further period of detention which may in total go up to one year provided the stringent conditions provided therein are satisfied and are complied with, as held by the Supreme Court in the case Sanjay Kumar Kedia (supra). 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.

(7.) It is therefore clear that unless there is a report of the Public Prosecutor as contemplated under sub-section (4) of Section 36A of the Act, the Court would have no jurisdiction to extend the period beyond 180 days. In the case of Hitendra Vishnu Thakur and Others (supra), the Supreme Court considered similar provision contained in Section 20(4) (bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, (In short "the TADA Act") while examining the right of the accused to be enlarged on bail in default of filing of charge sheet within the stipulated period as provided under Section 167(2) of the Cr.P.C. The requirement of submission of report by the Public Prosecutor as contemplated under the provisions of law was held to be mandatory and conditions precedent for grant of extension of period of completion and submission of charge sheet. It was held that in default of filing of charge sheet within 180 days and there being no extension by the Court on a report of Public Prosecutor, the accused would be entitled to grant of bail.

(8.) In the present case, it is not in dispute that the Public Prosecutor did not submit any report. It is the specific case of the applicant that the Public Prosecutor had not sought any extension of time for completion and submission of charge sheet. The impugned order does not refer to any report as contemplated under sub-section (4) of Section 36A of the Act filed by the Public Prosecutor. This Court had also granted time to the learned State counsel to verify as to whether any report as required under sub-section (4) of Section 36A of the Act was submitted by the Public Prosecutor before the Special Court, after completion of 180 days of arrest and if so, whether any order was passed by the Special Court. Learned State counsel however could not bring to the notice of the Court, any report by the Public Prosecutor seeking extension of time for submission of charge- sheet beyond 180 days. It therefore emerges as undisputed factual position that no report was submitted by the Public Prosecutor. In the absence of any report by the Public Prosecutor as required under sub-section (4) of Section 36A of the Act, there was no occasion for the Court below to consider extension of time beyond 180 days. The justification provided by the prosecution in opposition of application for grant of bail under Section 167(2) of the Cr.P.C. would not be a substitute to the report as contemplated under sub-section (4) of Section 36A of the Act. Consequently, the applicant was entitled to be enlarged on bail in view of the provisions contained in Section 167(2) of the Cr.P.C, on an application filed by him before the Court on 1.1.2010.

(9.) The other submission of learned State counsel that the applicant has been remanded to custody from time to time upon submission of remand, application by the Investigating Officer without any objection of the Public Prosecutor and which are in fact supported by the Public Prosecutor for seeking remand, should be treated as substantial compliance of the requirement of submission of report of Public Prosecutor, cannot be accepted in view of the judgment of the Supreme Court in the case of Hitendra Vishnu Thakur and Others (supra) wherein the Supreme Court examined the object and purpose of provisions contained in Section 20(4) (bb) of the TADA Act and held:

"23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. 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 mayor 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 of in sub-section (2) of Section 167 CrPC as amended by clause (bb) Section 20(4) of TADA 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. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the default of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by subsection (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the public prosecutor presents the request of the investigating officer to the court or forwards the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a post office of the investigating agency nor its forwarding agency but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."

(10.) In the present case, there is no report whatsoever by the Public Prosecutor much less a report as contemplated under sub-section (4) of Section 36A of the Act.

(11.) The right of the accused person to be enlarged on bail on application made in case of default by the Investigating Agency in completion of the investigating within the maximum period prescribed or extended as the case may be, was examined by the Supreme Court in the case of Hitendra Vishnu Thakur (supra) and it was held:

"20. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the default by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TAPA is generally termed as an "order-on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of Section 20 read with the proviso to sub-section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case)."

(12.) The submission of learned State counsel that as the challan has already been filed, right, if any of the applicant to be enlarged on bail on such a ground has now extinguished, also cannot be accepted, as the applicant has already availed his right by making an application under Section 167(2) of the Cr.P.C. on 1.1.2010, which has been rejected by the Court below, in view of the law laid down by the Supreme Court in the case of Uday Mohanlal Acharya (supra) wherein it was held:

13."A conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the court has to be passed. It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case. The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of" Does it mean that an accused files an application for bail and offers his willingness for being released on bailor does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed or" in a manner which is capable of being abused by the prosecution."

(13.) As a result of the aforesaid discussion and the conclusions drawn by this Court, the Special Court committed illegality in rejecting applicants application for being released on bail under Section 167(2) of the Cr.P .C.

(14.) Accordingly, this criminal revision is allowed. The impugned order dated 2.1.2010 passed by the Special Judge, N.D.P.S. Act, Jagdalpur is set aside. The applicant shall be released on bail on furnishing a personal bond in the sum of Rs.10,000 along with two sureties each of Rs.25,000 to the satisfaction of the Special Court for his appearance before the concerned Court on such dates as may be directed. Petition allowed.