Report Filed By Investigating Officer Does Not Satisfy Mandate Of S.36A(4) NDPS Act: Kerala High Court

The Kerala High Court has reiterated that the request of an investigating officer seeking extension of statutory 180 days period is not a substitute for the report of public prosecutor as envisaged under Section 36A of the NDPS Act.

The provision stipulates that 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 Public Prosecutor indicating the progress of the investigation and the specific reasons for detention beyond 180 days.

Justice A. Badharudeen remarked,

"It is relevant, rather shocking to note that the Public Prosecutor who was appointed by the State to conduct serious cases of this nature, even not cared at least to read Section 36-A(4) and its proviso, before filing the report of the Investigating Officer pressing for extension of detention of the accused beyond the period of 180 days... Indubitably, it is held that, the report/petition filed by the Investigating Officer cannot be considered as a report/petition envisaged under Section 36-A(4), since the Investigating Officer has no such right. So every bit in the matter of extension is void ab initio."

It held that only the Public Prosecutor can file a report under Section 36A(4).

The prosecution case is that the petitioner along with the other accused committed offences punishable under Sections 22(c) and 29 of NDPS Act. Since the final report was not filed within 180 days, a petition was filed by the investigating officer seeking extension of time. The Special Judge under the NDPS Act, Thrissur allowed the petition and dismissed the statutory bail application moved by the petitioner.

The Counsel appearing for the petitioner contended that it is mandatory for the Public Prosecutor to file a report/petition indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of 180 days for getting an order of extension. However, in the instant case the impugned order was passed by Special Court acting on a petition in the form of a report filed by the Investigating Officer. The Counsel further contended that the petitioner was not provided with an opportunity of hearing at the time when the petition filed under Section 36-A(4) was considered.

The Court held that the report/petition filed by the Investigating Officer cannot be considered as a report/petition envisaged under Section 36-A(4), since the Investigating Officer has no such right.

"Whether Public Prosecutor of this Stature, who is empowered to deal with very serious criminal cases, can protect the interest of the State is a matter of serious concern. The Home Secretary, State of Kerala, Thiruvananthapuram, The District Collector, Thrissur and the Director General of Prosecution have to address the issue," Court said.

Further, it referred to Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat where the Apex Court had held that it is mandatory to produce the accused at the time when the court considers the application for extension filed under Section 36-A(4) of the NDPS Act and the accused must be informed that, the question of extension of period of investigation is being considered by the court.

In the instant case the Court observed that no application was filed by the Public Prosecutor and the accused was not produced before hearing the extension petition. Thus the Court held that the Special Judge went wrong in allowing the application and denying the statutory bail plea of the petitioner. 

To the contrary, it is held that the statutory bail, an indefeasible right of the petitioner is liable to be granted since the petition for extension is not in accordance with the statutory mandate and the order was passed without the production of the accused before the Special Court with notice of the said aspect.

The Court clarified that in such cases the involvement of the petitioner in five more cases of serious nature including one under the NDPS Act will not stand as a bar to grant statutory bail. However, prosecution can seek cancellation of bail in the earlier cases, highlighting the involvement of the accused in subsequent crimes.

Thereby, the Court set aside impugned order and consequently, the statutory bail plea of the petitioner was allowed. 

Case Title: Muhammed Ajmal v. State of Kerala 

Citation: 2022 LiveLaw(Ker) 653

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