[NDPS Act] Orissa HC Stresses Filing Of Chargesheet Within Statutory 180 Days, Crystallises Law For Further Detention U/S 36A(4) [Read Order]

The Orissa High Court has stressed upon filing of charge-sheet against accused held under the Narcotic Drugs and Psychotropic Substances (NDPS) Act within the stipulated 180 days.

Justice S. K. Panigrahi was hearing a bail plea in connection with a FIR U/s 20(b)(ii)(C)/29 of the N.D.P.S., Act for possession of 270kg 200gms of Ganja. The Petitioner along with other accused persons were forwarded to the court of concerned Sessions Judge-cum-Special Judge on 15.04.2019. Thereafter, one S.I. was directed to commence investigation. During investigation, the case was posted on 4.10.2019 before the said judicial officer, awaiting receipt of the chargesheet. On the same day, the IO had moved an application to extend the stipulated time for submission of chargesheet for a further period of 60 days on the ground that though the major part of the investigation had been completed, but the ownership particulars of the seized vehicle were yet to be received from the RTO. On that ground, an application for extension of 60 days time to submit the charge sheet was sought by the prosecution, after the lapse of the statutory period of 180 days i.e. the stipulated period was going to expire on 12.10.2019. The Sessions Judge-Cum-Special Judge, without issuing Notice to the Accused persons, heard the submissions of the Special Public Prosecutor and proceeded ex- parte to extend the time for submission of chargesheet as envisaged under Section 36-A (4) of the NDPS Act. Consequently, an extended time of 30 days was granted with effect from 13.10.2019.

"The most poignant aspect of the case, however, is the non-issuance of notice to the accused at the stage of hearing the application for extension of time", noted Justice Panigrahi. The Single Judge held the non-service of notice on the accused to be violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

The Single Bench stated that another aspect that "stands out like a sore thumb" in the present case is that the Special Judge has dismissed the bail application in the light of Section 37 of the NDPS Act despite the fact that investigation had not been completed. The said section 37(b) stipulates that no person accused of an offence involving commercial quantity shall be released on bail unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

"It is felt that the law on the subject needs to be crystallized for better appreciation by the courts below", noted the Single Judge.

Justice Panigrahi appreciated that in the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorise detention for a period up to one year. But, the Single Bench iterated that the law as it stands, mandates that the same shall be subject to the following, being complied in letter and spirit:

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up;

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused shall become entitled to be admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

"In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused", declared Justice Panigrahi.

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