Calcutta HC Grants Default Bail To Accused For Non-Compliance Of Notice Of Application For Extension Of Time U/S 36A(4) NDPS Act

The Calcutta High Court has recently granted default bail after noting that no notice of the application seeking extension of time in filing of chargesheet under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) had been served upon the accused thereby violating principles of natural justice. 

A Bench comprising Justice Debangsu Basak and Justice Bibhas Ranjan De observed, 

"In an adversarial proceeding, the requirement to adhere to the principles of natural justice is imbedded in a statute governing the adjudicating process unless the same is expressly excluded by statute. The right to a fair trial is fundamental to the rule of law. Right to fair trial is recognized as a part right to life enshrined in Article 21 of the Constitution of India. Compliance with the principles of natural justice ensures a fair trial. Audi alteram partem or hear the other side is one of the fundamental pillars of the principles of natural justice. The principle audi alteram partem needs to applied at every stage of an adversarial proceeding to ensure fair trial, unless its applicability is expressly ousted by statue."

The Court further underscored that Section 36A(4) of the NDPS Act does not expressly exclude the application of principles of natural justice and thus an accused is entitled to notice of an application seeking extension of time to submit a chargesheet under Section 36A(4) of the NDPA Act so that he is in a position to oppose the same if need be. 

"An order granting extension under Section 36A(4) would adversely affect the right to obtain bail for the accused. An application for extension of time is required to be made on notice to the accused particularly when such accused is in custody. When the accused is not in custody, the question of expiry of 180 days from the date of his arrest does not arise. The accused being produced before the Court on the date of filing of the application for extension or on the date of any order being passed thereon would constitute sufficient notice to the accused of such application", the Court observed further. 

Background 

In the instant case, the petitioner was arrested on September 21, 2020. 180 days from the date of his arrest expired on March 20, 2021. Within the period of 180 days from the date of his arrest an application for extension of time to submit the charge-sheet under Section 36A(4) of the NDPS Act was filed by the police before the jurisdictional Court. 

On March 22, 2021 the concerned jurisdictional Court had refused to grant bail to the petitioner on the ground that time to file the charge- sheet stood extended on March 19,2021. Thereafter, a fresh application for bail had been filed on April 17, 2021 which was also refused by the concerned jurisdictional Court not appreciating that no charge-sheet had been filed within time. 

Observations 

The Court at the outset noted that the application for extension filed on March 19, 2021 did not contain did not contain any endorsement that such an application had been served either on the accused or his advocate. It was also noted that the accused had not been produced before the concerned jurisdictional Court on March 19, 2021. 

Reliance was placed on the Supreme Court judgment in Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau & Anr to hold that it is mandatory for notice to be served upon an accused regarding the application for extension under Section 36A(4) of the NDPS Act. Opining that order passed granting extension of time is a nullity since no notice of such an application had been served upon the accused, the Court remarked further, 

"In the facts of the present case, no notice of the application for extension of time was served upon the accused. On the test of the ratio laid down in Sanjay Kumar Kedia (Supra), therefore, the application for extension not being brought to the notice of the accused, is non est. The order passed thereon, consequently, would be a nullity. The irregularity in the application for extension of time and the order granting extension merely opens up a window of opportunity to the accused for the period from March 21, 2021 till April 19, 2021 to apply for and obtain default bail."

The Court also referred to the Supreme Court judgment in Fakhrey Alam v. The State of Uttar Pradesh and the Calcutta High Court judgment in Moraful Saikh @ Morful Saikh v. State of West Bengal to rule that an accused is entitled to the valuable right of default bail if the public prosecutor fails to submit a charge sheet within the prescribed period of 180 days. 

The Court reiterated that in the instant case there was no valid application for extension of time under Section 36A(4) of the NDPS Act since no notice had been served to the petitioner. It was further stipulated that the charge sheet was filed on April 19, 2021 which was beyond the stipulated period of 180 days which expired on March 20, 2021. T

Thus, the Court averred that the application for bail filed on April 17, 2021 by the petitioner was prior to the filing of charge sheet by the prosecution and that on April 17, 2021 there was no application for extension of time pending since the application filed on March 19, 2021 was already disposed of.

Opining that the concerned jurisdictional Court should have considered the petitioner's prayer for bail on April 17, 2021, the Court observed, 

"In facts of the present case, therefore, the jurisdictional Court was required to consider the prayer for bail filed on April 17, 2021 as one made in terms of Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The jurisdictional Court erred in not granting bail to the petitioner on the default of filing of the charge-sheet by the State within the initial prescribed period of 180 days from the date of arrest."

Accordingly, the Court ordered that the petitioner should be released on bail upon furnishing a bond of Rs.50,000 with two sureties of like amount each, one of whom must be local, to the satisfaction of the concerned Judge, Special Court under NDPS Act, Howrah. 

Case Title: Naimuddin Laskar @ Naim v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 87 

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