S.36A(4) NDPS Act | Public Prosecutor's Report Mandatory For Detention Of Accused Beyond Statutory Period Of 180 Days: P&H High Court

The bench of Justice Manjari Nehru Kaul observed

“…it must be borne in mind that the time period for investigation cannot be mechanically extended under Section 36-A of the NDPS Act. The legislative intent is amply clear in so far as the option for seeking an extension of time has not been left to the investigating agency. The relevant provisions categorically provide that the Court may grant an extension of time but only on a report of the Public Prosecutor.”

For context, a co-joint reading of Section 167(2) CrPC, as well as of Section 36A(4) of the NDPS Act provides that if on the expiry of the prescribed period of 180 days, the investigation in a particular NDPS Act case is still incomplete, an indefeasible right of bail accrues in favour of the accused.

However, as per proviso to Section 36A (4) of the NDPS Act, if it is not possible to complete the investigation within the statutory 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.

The case in brief

In the instant case, the petitioner-accused was booked under Section 22(b) of the NDPS Act and arrested on November 1, 2022. After that, challan was presented by the investigating agency, but without the report of the Forensic Science Laboratory on April 13, 2023.

Since the petitioner-accused was arrested on November 1, 2022, the statutory period for completing the investigation under the NDPS Act, i.e., 180 days was thus, to expire on May 1, 2023. However, by that time also, the FSL report was not filed by the investigating agency.

Therefore, the accused moved the special court seeking bail in the case while arguing that an indefeasible right stood accrued to the petitioner under Section 167(2) CrPC for being granted default bail as the investigating agency had not completed the investigation within 180 days.

However, the Additional Sessions Judge, Sonipat on May 4, rejected his bail plea. Instead, the Court extended the period of investigation on the ground that the investigating agency had already presented the final report with a clarification that the FSL report had not been received.

Challenging the order, the accused moved the High Court wherein his counsel argued that it was incumbent upon the Public Prosecutor to submit a report before the Court for seeking an extension of time to file the FSL report and it would have been only then that the extension could have been granted by the Court concerned.

High Court’s observations

At the outset, the Court noted that if in a particular case under the NDPS Act, the challan is presented by the investigating agency within the prescribed period of 180 days, the FSL report must be a part of the challan as the same would be one of the factors to determine the nature of the substance, allegedly recovered.

Further, the Court referred to the High Court’s judgement in the case of Ajit Singh @ Jeeta & another vs. State of Punjab wherein it was held that the challan filed without the FSL report with regard to the nature of the substance in question would be an incomplete challan and in such circumstances, the accused would be entitled to be released on default bail.

Against this backdrop, the Court noted that since in the instant case, even on the expiry of 180 days on May 01, 2023, the FSL report had not been filed, therefore, in the absence of the FSL report, the challan presented would be deemed to be an incomplete one.

The Court further said that since no report of the Public Prosecutor had been filed seeking an extension of time, the Court below misinterpreted the provisions of Section 36-A(4) of the NDPS Act by denying bail to the accused.

Consequently, holding that since the investigation was incomplete on the date when the petitioner moved an application under Section 167(2) CrPC for default bail, the Court granted him bail in terms of Section 167(2) CrPC to the satisfaction of trial Court/Magistrate concerned.

Appearances

Advocate for petitioner: Navkiran Singh

For the respondent state: Dy. Advocate General, Haryana Chetan Sharma

Case Title - Chander Prakash vs. State of Haryana [CRR No.1326 of 2023]

Case Citation: 2023 LiveLaw (PH) 112

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