NDPS-Order Extending Time For Investigation To Be Passed After Properly Alerting The Accused: Kerala High Court

The Kerala High Court on Wednesday observed that an order to extend time for investigation under the NDPS Act should only be passed after properly alerting the accused in the matter. 

Justice K Haripal also held that the Public Prosecutor being an independent statutory authority was expected to independently apply his mind to the request of the investigating agency before submitting a report to the Court.

The petitioners had sought to quash the order of the Special Court whereby an extension of two months' time for investigation under Section 36A(4) of the NDPS Act was allowed to the Public Prosecutor. Advocate K. Nirmalan represented the petitioners.

According to the petitioners, they have been in judicial custody since 3rd October 2020. After the statutory period of 180 days, since the prosecution could not complete the investigation and lay the final report, an application by the Investigating officer and a report by the Public Prosecutor were filed before the court on 31st March 2021 seeking an extension of time for investigation. Their primary contention is that the impugned order was passed without giving a copy of the report or the application, and was therefore passed without affording them an opportunity to oppose the application.

Apart from alleging that everything was done without taking them into confidence and, that they should not have been kept in the darkness before passing the order, they also contended that the Special Public Prosecutor had endorsed the request of the Investigating Officer without application of mind. 

Upon perusal of the orders, the court found both arguments to be formidable.

Placing reliance on Hitendra Vishnu Thakur & Ors v. State of Maharashtra & Ors [(1994) 4 SCC 6], the Single Bench observed that a Public Prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for an extension of time. He is expected to give his assessment about the progress of investigation before giving the recommendations, which was not done in this case. 

Furthermore, going by authoritative pronouncements, the Court observed that while considering an application under Section 36A(4) of the Act, the following four conditions were required to be gone into by the designated court:

(1) a report of the Public Prosecutor

(2) which indicates the progress of investigation

(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.

Although the last condition is not in the statute, it was established to be a part of judge-made law. The Bench stated that Supreme Court has insisted upon this requirement in various decisions and that it had become the law of the land and, therefore, binding on all Courts. 

In the present matter, it was revealed that even the counsel for the accused was not intimated, even orally, about the report given by the Public Prosecutor or the request of the Investigating Officer seeking further extension of time before the Special Court. In other words, they were kept completely in dark with regard to the report for the extension of time and also the order, which is bad. As such, the Court held s follows:

"I have no doubt that such an order should have been passed after properly alerting the accused persons; at least oral notice should have been given to the respective counsel appearing for the accused or while passing the orders, accused should have been brought before the court. Therefore, the order dated 31.03.2021 cannot stand and is liable to be quashed. It is quashed."

Case Title: J. Midhun & Ors v. State of Kerala

Click Here To Read / Download The Order