[NDPS Act] Investigating Officer's Request For Extension Of Time Not Substitute For Report Of Public Prosecutor: Madras High Court Reiterates

Even if the application is routed through the Public Prosecutor that will not be sufficient, he is expected to apply his mind independently, while seeking extension of time by the investigating agency Justice G Ilangovan observed.

In the present case, pending investigation, the Superintendent of Customs (complainant) had filed an application seeking extension of time for completing the investigation. The petitioner had also preferred an application seeking statutory bail. The trial court, observing that the application for extension was filed before the expiry of 180 days and being satisfied with the grounds mentioned in the petition, granted the extension of time and rejected the claim of the statutory bail of the petitioner.

The petitioner submitted that the petition was not filed by the Special Public Prosecutor but by the Investigation Officer and only a counter-signature was obtained from the Special Public Prosecutor. The petitioner submitted that the same did not fulfill the requirements of law under the Narcotic Drugs and Psychotropic Substances Act.

The petitioner relied on the recent decision of the Supreme Court in Jigar @ Jimmy Pravinchandra Adatiya Vs State of Gujarat wherein the court highlighted the importance of informing the accused about the application seeking an extension of time as the same would otherwise violate his fundamental right under Article 21 of the constitution.

The petitioner also relied on the decision of the Apex Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs Intelligence Officer in which the court had discussed extensively the importance of application by the Public Prosecutor. The court had held as under:

The use of the expression "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" as occurring in clause (bb) in sub- section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor.

Thus, as per the Apex court, the report of the Public Prosecutor was not a mere formality but a very vital report as its acceptance would affect the liberty of the accused. Further, the request of an investigating officer for an extension of time was not a substitute for the report of the public prosecutor.

Though the respondent authorities claimed that the request of the investigating agency was routed through the Public Prosecutor after his independent application of mind which was sufficient to fulfill the requirements of the law, the court did not agree with this contention.

Thus, the court found that the extension of the time limit granted by the trial court was not legally sustainable and set aside the same, in effect granting bail to the petitioner.

Case Title: Shakil Ahamed v The Superintendent of Customs

Citation: 2022 LiveLaw (Mad) 497

Case no: Crl.RC (MD)No.907 of 2022

Counsel for the petitioner: Mr.T.A.Mohamed Sikkander

Counsel for the Respondent: Mr.C.Arulvadivel @ Sekar Special Public Prosecutor for Custom