Prosecutor Can't Merely 'Cross Sign' & 'Forward' Investigator's Application For Extension Of Custody U/S 36A(4): Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that the Public Prosecutor (PP) mere by "cross signing" and writing "forwarded" on the application filed by the investigating agency, seeking extension of time for probe would not satisfy the essential condition under Section 36A (4) of the NDPS Act.

According to Section 36A (4) of the NDPS Act, in an offence involving commercial quantity, if it is not possible to complete the investigation within 180 days, the Special Court may extend the said period up to one year on the report of the PP indicating the progress of the investigation and the specific reasons for the detention of the accused beyond 180 days.

And as per the proviso, the extension can only be granted when the following twin conditions are satisfied:

(a) the public prosecutor would make a report indicating the progress in the investigation;

(b) the specific reason for retention of accused beyond the prescribed period of 180 days, be also mentioned in the application.

While setting aside the order allowing extension of time, Justice Kuldeep Tiwari said that,

"it clearly reflects that the application was filed by the investigating officer, and not by the public prosecutor. The public prosecutor just appended cross-signature at the end of the said application, by putting remarks i.e. “forwarded.” Merely by appending the cross-signature, and writing a word “forwarded,” would not satisfy the twin conditions as discussed above."

Anil Kumar, an accused in the drugs case had challenged the order passed by the Special Court whereby, the application preferred by the prosecution for extension of time in filing the final report beyond 180 days was allowed.

After hearing the submissions, the Court considered the question, "whether, the application for extension of time filed by the investigating officer, and cross-signed by the public prosecutor, seeking an extension of time beyond 180 days, met the necessary twin conditions envisaged under Section 36-A(4) of the NDPS Act."

Reliance was placed on Ravinder alias Bhola vs. State of Haryana, wherein the Court said that the twin conditions as prescribed with the proviso attached to Section 36-A(4) are essential conditions and are in co- existence, and non-satisfaction of even one condition will not give any entitlement to prosecution for seeking an extension of 180 days.

In the present case, the Court said neither the public prosecutor had recorded his independent satisfaction that he satisfied about the progress of the investigation, and nor he has furnished any reasons for seeking further custody of the accused.

Justice Tiwari highlighted that the application has been rooted through the public prosecutor, or at the best can consider that it has been supported by him, would not make the said application, a report of public prosecutor.

Consequently, the Court decided that the impugned order is not legally sustainable, which requires to be set aside.

Akshay Jain, Advocate, for the petitioner.

Abhinash Jain, DAG, Haryana.

 Title: ANIL KUMAR v. STATE OF HARYANA

Citation: 2024 LiveLaw (PH) 131

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