S.36A(4) NDPS Act | Public Prosecutor Not Part Of Investigating Agency, Expected To Apply Mind For Seeking Extension: Punjab & Haryana HC Reiterates

The Punjab and Haryana High Court has granted default bail to an accused in a drugs case whose plea was rejected by the Trial Court which granted an extension to the investigating agency to probe the matter.

The Court noted that the Public Prosecutor (PP) did not submit an independent report seeking time for investigating the case, which is a mandatory provision 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 the period of one hundred and eighty 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 one hundred and eighty days.

Justice Sandeep Moudgil said, "A Public Prosecutor is an important officer of the State Government and is appointed by the State under the code of Criminal Procedure. He is not a part of the Investigating Agency. He is an independent statutory authority. The Public Prosecutor is expected to independently apply his mind to the request of the Investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation."

Thus for seeking extension of time, the PP after an independent application of his mind to the request of the investigating agency, is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation, the Court said.

The PP must attach the request of the Investigating Officer along with his request or application and report and the same must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary, it added.

The Court was hearing a revision petition filed by Pradeep Kumar for setting aside order whereby the application under Section 36-A(4) of NDPS Act, 1985 for extension of time to file the challan had been allowed and the order vide which default bail sought by the petitioner had been declined  under Section 20 of NDPS Act, 1985.

After hearing the submissions the Court noted that the FIR was registered on August 30, 2023 and prior to expiry of 180 days available with the Investigating Agency, an application for extension of time was preferred which was allowed by extension of 30 days more to conclude the investigation on February 26, 2024 by the Additional Sessions Judge, Palwal.

Justice Moudgil pointed out that "it is an admitted fact that no report of public prosecutor was received as the question of endorsement would also not arise since no such application was admittedly filed by the public prosecutor seeking detention of the petitioner-accused beyond 180 days."

"Section 36(A)(4) of NDPS Act is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police," added the Court.

The Court opined that the impugned order lack satisfaction of mandatory conditions of Section 36 A (4) of the NDPS Act and in the absence of an appropriate report, the Court below should not have deprived the petitioner for his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within a prescribed time.

"Moreover, no extension should have been granted to keep the petitioner in custody on the prescribed period except to enable the investigation to be completed. Accordingly this Court is of considered view that as per Section 167 (2) Cr.P.C., the indefeasible right had been accrued in favour of the petitioner when police failed to complete the investigation and put up the challan against him in accordance with law and the said right to bail under Section 167 (2) Cr.P.C., is absolute, which is a legislative command and not a Court's discretion," said the Court.

In the light of the above, the Court held that accused has an indefeasible right, accrued to him even if the period of 180 days stands extended by the trial Court on the last date on which the period of 180 days stood expired and, "therefore, he is entitled to the benefit of 'default bail' under Section 167(2) of Cr.P.C."

Arjun Dhingra, Advocate for the petitioner.

B.S. Virk, Sr. DAG, Haryana.

Title: PARDEEP KUMAR v. STATE OF HARYANA

Citation: 2024 LiveLaw (PH) 127

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