IOs, Public Prosecutors Can’t Casually Seek Extension Of Time For Completing Probe In NDPS Cases, Requisite Training Be Imparted: Kerala High Court

Observing that investigating officers and public prosecutors in many cases are showing laxity in properly framing and submitting petitions under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court has asked the Director General of Prosecution and Director General of Police to take appropriate action for imparting requisite training and refresher courses to the officers

"The necessity of clearly setting out the twin requirements for seeking extension of detention of accused beyond 180 days cannot be overlooked or dealt with in a casual manner under any circumstance. This is an aspect that should engage the attention of the Director General of Prosecution and the Director General of Police," Justice V. G. Arun said.

The court said such laxity has resulted in the accused being benefited.

The court passed the order in a petition seeking quashing of the trial court order extending the time for completion of investigation by two months. The petitioner is accused of offences punishable under Sections 22(c) and 29 of the NDPS Act.

Since the investigation could not be completed within the 180 days of petitioner's arrest, the Public Prosecutor filed a petitioner under Section 36A(4) of the Act seeking extension of the period for completing the investigation by two months. The Sessions Court on February 9, 2023, allowed the petition and extended the time for completing the investigation by two months.

The counsels for the petitioner assailed the order of the Sessions Court on three grounds — that the petition submitted by the Public Prosecutor did not satisfy the requirements of Section 36A(4) of NDPS Act; that the Public Prosecutor had acted as a mere post office by submitting the report prepared by the investigating officer after converting it as a petition under Section 36A(4); and lastly, that the court below committed gross illegality in mechanically ordering extension of period for completing investigation, despite the prosecution having failed to indicate the progress of investigation and to provide specific reasons for detaining the accused beyond the period of 180 days.

It was argued that instead of indicating the progress of investigation, the petition only revealed the failure of investigation. The failure of the investigating agency to identify the source of contraband articles and to find out the whereabouts of an African citizen, who is alleged to be the kingpin, could not result in the petitioner's liberty being curtailed, the court was told.

The counsels also submitted that instead of specifying the reason for continuing the petitioner's detention beyond 180 days, only a general statement that trade of contraband articles may harm normal well being of the society and release of the accused on completion of statutory remand period would adversely affect the progress of investigation, had been made.

On the other hand, it was argued by the Public Prosecutor Renjith George that the requirements under Section 36A(4) had been satisfactorily met in the present case.

The court said the emphasis of Section 167 Cr.P.C. is on completion of the investigation at the earliest. It added that under Section 36A(c) of the NDPS Act, the Special Court can exercise the same power which a Magistrate having jurisdiction to try a case exercises under Section 167 of the Code, has.

"Thus, the right to default bail of an accused in custody for the offences mentioned in Section 36A(4) would arise if the investigation is not concluded and final report not filed within 180 days," said the court.

However, the court added that the proviso to Section 36A(4) also confers power on the Special Court to extend the period of 180 days up to one year. For granting the same, the court said, the Public Prosecutor would have to submit an application, indicating the progress of investigation and specifying the reasons for seeking detention of the accused beyond 180 days.

"Even on a plain reading of the above provision, it is clear that, while the Public Prosecutor need only indicate about the progress of investigation, he should specifically state the reason for extending the period of detention of the accused beyond 180 days. Therefore, the Public Prosecutor is not expected to state every minute details of the investigation for the purpose of satisfying the court about the progress of investigation," the court observed.

The Court in this case noted that the progress of the investigation had been indicated in the petition submitted by the Public Prosecutor.

It then considered the question whether specific reason for extending the detention of the accused beyond 180 days is mentioned in the petition. The court said the requirement has been incorporated to ensure that the accused's valuable right to statutory bail, is not defeated in a casual manner.

"Unfortunately, in Annexure 2 [the petition submitted by Public Prosecutor under Section 36A(4)], except for a general statement that, releasing the accused will adversely affect the progress of investigation, no reason, let alone in specific reason, is stated, so as to convince the court about the necessity of continuing the petitioner's detention beyond 180 days. Surprisingly, this crucial defect was not taken note of by the court below. Hence, I am left with no alternative but to set aside Annexure 3 [impugned order of the Special Court]," the court said.

The court thus allowed the petition, and directed the Sessions Court to release the petitioner on bail subject to the petitioner satisfying the conditions.

The Registry was also directed to forward a copy of the order to the Director General of Prosecution and the Director General of Police for appropriate action in imparting the requisite training and refresher courses to the investigating officers and the Public Prosecutors.

The petitioner was represented by Advocates P. Mohamed Sabah, Libin Stanley, SaiPooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Srinath C.V., and Alwin Joseph.

Case Title: Dayal v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 139

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