NDPS Act - Application Seeking Time Extension For Investigation Not Maintainable If Progress Of Probe Not Disclosed: Bombay HC [Read Judgment]

The Bombay High Court has held that an application seeking extension of time for investigation under the Narcotic Drugs and Psychotropic Substances Act 1985 is not maintainable if it is is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act.

One of the requirements of the report for extension, under proviso to sub section (4) of Section 36A of NDPS Act, is that it should disclose the progress of the investigation.

As per Section 36A(4), the Court can extend the time for investigation up to a further period of 180 days, beyond the original period of 180 days, 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.

In the instant case - Nayantara Gupta vs State of Maharashtra - the applicant was arrested on 12.11.2019 for offences under NDPS Act involving commercial quantity. On May 11, 2020, the Prosecutor filed an application for extension of time for probe. The Special Court did not pass any order on the merits of the application and kept it pending in view of the suo moto order passed by the Supreme Court on March 23 extending limitation period. The next day, the applicant moved an application seeking default bail. On May 15, the Special Court dismissed the application, holding that the time for probe stood extended in the light of the SC order extending limitation

Challenging this, the applicant moved the High Court.

The HC noted that the SC has held in the case S Kasi vs State that the suo moto extension of limitation is not applicable to investigation.

A bench of Justice Anuja Prabhudessai said that since the extension of time for investigation curtails personal liberty, it cannot be ordered in a mechanical manner but has to be with "due application of mind and on being satisfied about the progress of the investigation and the reasons for detention as spelt out in the report of the prosecutor justifying such extension".

The Court noted that the application was signed by the investigating officer and was submitted to the court by merely appending the signature of the Prosecutor.

"The application dated 6.5.2020 is nothing but a transmission of the request of an Investigating Officer for extension of time. Such request, which is submitted without being satisfied of the progress of the investigation and the reasons of detention, cannot be construed as a report of the public prosecutor as envisaged by proviso to Sub-section (4) of Section 36(A) of the NDPS Act", the Court said.

The main reason stated for seeking extension was the inability to complete the investigation due to lockdown declared because of Covid 19 pandemic.  The report did not disclose the progress of the investigation.

"The application/report does not disclose the progress of the investigation conducted during this four and half months period i.e. from the date of the arrest till the date of the lock down. The report does not reflect steps taken for recording the statements of the witnesses and calling for the CDR and Chemical Analysis report during this period of four and half months. Under the circumstances, the reasons stated in the application cannot be considered as genuine. There are no justifiable reasons for extending the time for completing the investigation. Suffice it to say that the prayer for extension of time, which directly affects the liberty of the applicant, cannot be granted on the basis of an application/report which is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act", the HC observed. 

The Court further observed that "with grant of bail, liberty of the applicant-accused stands protected but with casual approach of the investigating officer and the public prosecutor in discharging their statutory duties, the societal interest stands dented."

"It is not for the court to conjecturise the reasons or causes for such lackadaisical investigation or mechanical approach of the public prosecutor. Suffice it to say that such lapses tend to render the stringent provisions of bail nugatory and thereby deflect the criminal justice system. It is therefore necessary that the concerned authorities look into the above noted serious lapses, fix accountability, and take corrective measures in the matter", the Court said in conclusion.

Case Details

Title : Nayantara Gupta vs State of Maharashtra

Bench : Justice Anuja Prabhudessai

Appearances : Advocate Guarav Thote for the applicant; R.M. Pethe, APP for the State; Jitendra Mishra for Respondent No.1 – UoI

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