Once Charge Sheet Is Filed In NDPS Case, Order Extending Detention Under Section 36A (4) Can't Be Challenged: Calcutta High Court

The Calcutta High Court on Monday held that once a charge-sheet is filed in a NDPS case, the order extending detention of the accused beyond 180 days no longer survives. A litigant cannot be permitted to assail the said order of extension of detention at a time when it is no longer in existence, said the court.

The division bench of Justice Ajay Kumar Gupta and Justice Joymalya Bagchi observed:

“In the present case, the petitioners did not assail the order extending the period of detention prior to the completion of investigation. Upon conclusion of investigation and submission of complaint, impugned order extending detention beyond 180 days no longer survives after filing of charge sheet. A litigant cannot be permitted to assail an order at a time when it is no longer in existence.”

The petitioners were arrested, allegedly while transporting narcotics i.e. 14970 bottles of phensedyl syrup containing codeine phosphate in 42 HDPE bags and 25 cartons in a truck.

The petitioners approached the High Court seeking statutory bail on the ground that the report seeking extension of the period of detention in terms of Section 36A(4) of the NDPS Act was not in accordance with law.

“The manner and circumstances in which the drugs were transported prima facie show an organised crime racket was involved interstate transportation of drugs. Upon their arrest petitioners were interrogated and role of co-accused. The said co-accused was arrested. On the 179th day of their detention, report of the Investigating Officer seeking extension of detention in terms of proviso to Section 36A(4) of the NDPS Act was served upon them. On the next day, the application was filed and came to be allowed by order dated 08.07.2022,” said the court.

The court further noted that the report seeking extension clearly spelled out the role of the petitioners and the necessity for extending the period of detention beyond 180 days. It also observed that in the report, it was highlighted that the petitioners hail from different states and there is possibility of their abscondence and tampering evidence. 

The court relied upon the judgement of the Supreme Court in Qamar Ghani Usmani v. State of Gujarat in which the apex court held that when an order of extension had not been assailed and had merged into a subsequent order, the earlier order of extension cannot be assailed.

Case Title: In Re Maharaj Singh & Anr. v. Customs

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