NDPS Act | Extension Of Time For Investigation Can Only Be Granted Upon Receiving Public Prosecutor's Report: P&H HC Grants Bail Over Incomplete Probe

The Punjab & Haryana High Court has set aside the order granting an extension of time for investigating a case under the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act, on the ground that the application seeking extension was not supported by the Public Prosecutor's report.

According to Section 36A (4) of the NDPS Act, in an offence involving commercial quantity, if it is not possible to complete the investigation within the 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.

Justice Manjari Nehru Kaul observed, that when the investigation agency "fail to conclude investigation within the stipulated statutory period, an indefeasible right under Section 167(2) of the Cr.P.C. accrues to the accused. However, the provisions of Section 36A(4) of the NDPS Act permits an extension of the investigation period, provided that the prerequisites mandated by the statute have been diligently adhered to, including the submission of a report under Section 36A(4) of the NDPS Act by the Public Prosecutor."

The Court said that the legislative intent behind Section 36 A (4) is evident, as it explicitly stipulates that the Court may grant an extension only upon receipt of a report from the Public Prosecutor.

These observations were made in response to the plea filed by Bharat Bhushan, who was booked under Section 21 (C) of the NDPS Act and provisions of the Drugs and Cosmetics Act, 1940 and Sections 420, 467, 468, 471 of the IPC. The Trial Court had granted time to the investigating agency twice to file the challan/final report.

The petition sought setting aside the order passed by a Palwal Court, whereby the application filed by him for releasing on default bail under Section 167 (2) of the CrPC had been dismissed and applications filed by the prosecution for extension of time to submit the final report were allowed. 

It was argued by the petitioner's counsel that he was arrested on March 03, 2023  in the case and thus, the statutory period of 180 days for completion of the investigation was due to expire on September 03.

However, the investigating agency failed to present the challan within this period as the investigation was still incomplete. Consequently, an application seeking an extension of time for completion of the investigation was moved by the investigating agency before the trial Court and it granted the investigating agency an additional time of 30 days to complete the investigation, he added.

It was further submitted that despite the extension, the investigating agency did not complete the investigation and moved another application before the trial Court for granting further time. The Court granted another extension of 180 days to the investigating agency to complete the investigation.

The petitioner argued that it was incumbent upon the trial Court to ensure compliance with the provisions of Section 36A(4) of the NDPS Act before granting repeated extensions for the conclusion of the investigation.

After hearing the submissions and examining the submissions, the Court found that  "it is evident that there has thus, been a failure to adhere to the requirements outlined in section 36A(4) of the NDPS Act in the present case, and the order of the trial Court granting extension of time to the investigating agency for completing investigation was erroneous."

Consequently, the Court set aside the first order which granted an extension for the investigation.

Another order was challenged on the ground that the trial Court had exceeded the permissible detention period of 365 days.

Furthermore, the Court noted that "no doubt, as per the submissions made by the State counsel as , the Public Prosecutor had submitted his report as mandated under Section 36A(4) of the NDPS Act, however, it also not disputed by the State counsel that the total period of detention of the petitioner was 390 days, blatantly violating the provisions of Section 364(A) of the NDPS Act."

Reliance was placed upon Apex Court's decision in Sanjay Kumar Kedia @ Sanjay Kedia Versus Intelligence Officer, Narcotic Control Bureau and Anr. [2010 (1) SCR 555], in which the Court held that:

“The maximum period of 90 days fixed under Section 167 (2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorises 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. 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.”

 The Court opined that the Trial Court "erred while passing" the second extension of another 180 days to the investigating agency to complete the investigation. Hence, that order was also quashed.

In light of the above, the Court opined that since the investigation remained incomplete on the day the application under Section 167(2) of the Cr.P.C. was filed by the petitioner, he deserves to be enlarged on default bail. 

Vibhor Bansal, Advocate for the petitioner.

Rahul Mohan, Senior Deputy Advocate General, Haryana.

Title: Bharat Bhushan v. State of Haryana

Citation: 2024 LiveLaw (PH) 110

Click here to read/download the order