NDPS Act | Prosecutor Can't Seek Extension Of Custody Merely To Collect Forensic Report, Must Satisfy Conditions U/S 36A(4): P&H High Court

The Punjab & Haryana High Court has made it clear that in order to extend the statutory period of 180 days to complete the process of investigation as per Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act, the Public Prosecutor must indicate the progress of the investigation and specific reasons for the detention requires beyond said period.

Perusing the provision of Sections 36A(4) of NDPS Act, Justice Jasgurpreet Singh Puri said, "A perusal of the aforesaid proviso would show that in exceptional circumstances where it is not possible to complete the investigation within the said 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 detention of the accused beyond the said period of 180 days."

The Court added that there are two essential ingredients for the purpose of extension of period of 180 days. These ingredients envisaged in the proviso are rather conditions precedent and conditions sine qua non for invoking the provision of the aforesaid proviso in extreme circumstances where the investigation is not complete.

First condition is that the report of the Public Prosecutor suggests or indicates regarding the progress of the investigation and the second condition sine qua non is that specific reasons for the detention of the accused beyond the period of 180 days, it further said.

Laying emphasis on the clear language of the provision the bench said, "These two conditions are co- existant and non-satisfaction of even one condition will not give any entitlement to the prosecution for seeking an extension of 180 days. The language used in the proviso is absolutely unambigous and clear and has to be given a literal construction. Otherwise also the grant or non-grant of a default bail is on a different pedestal as compared to grant or non-grant of regular bail under Section 439 of the Code of Criminal Procedure."

The Court was hearing challenge to extension of time by three months for filing the challan granted upon prosecution's application under Section 36A NDPS Act. The plea also sought to quash the Sessions court order rejecting default bail. It was submitted that FSL report had not been filed yet and merely on this ground, the period was extended.

Considering the submissions the Court said,

"It [prosecution] only states that time may be given for collecting the FSL report and extension of time was required for the purpose of collection of the FSL report whereas as per proviso to sub-section (4) of Section 36A of NDPS Act, the essential condition sine qua non is that reason has to be mentioned for seeking detention of the accused and also the progress of the investigation whereas nothing is stated in the aforesaid report pertaining to progress of the investigation nor any reason has been given seeking detention of the accused."

Justice Puri further observed in order passed by the ASJ only reference has been made about the report is that it has been perused.

"Special Court has not applied his mind in accordance with the spirit of the statutory provisions of Section 36A of the NDPS Act. Even if a reference was made to the report of the Public Prosecutor but no application of mind was made as to whether the conditions of the proviso have been satisfied or not. Apparently there is no reason given either by the learned Judge, Special Court or the report of the Public Prosecutor as to why the detention is to be continued," said the Court.

In the light of the above the Court set aside the order of ASJ and directed that petitioner be released on default bail.

Appearance: Sushil Sheoran, Advocate, for the petitioner.

Vishal Kashyap, DAG, Haryana.

Citation: 2023 LiveLaw (PH) 226

Title: Ravinder @ Bhola v. State of Haryana

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