Public Prosecutor Must File Independent Report Justifying Detention Of Accused Beyond 180 Days U/S 36A(4) NDPS Act: Punjab & Haryana HC

The Punjab and Haryana High Court has held that default bail to an accused charged under NDPS Act cannot be denied on the pretext of investigation not being complete within the stipulated period of 180 days, unless the Public Prosecutor, after he has independently applied his mind, files a report disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation.

Justice Sant Prakash observed that a Public Prosecutor is not merely a post office or a forwarding agency.

"For seeking extension of time, the Public Prosecutor after an independent application of mind to the request of the investigating agency, is required to make a report to the 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 Public Prosecutor may attach the request of the investigating officer alongwith his request on application and report, but his report 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," the bench observed.

The development ensued in a criminal revision petition filed against the trial court's order dismissing petitioner's application for default bail under S.167(2) of CrPC read with S.36A(4) of NDPS Act citing prosecution's demand for extension of time beyond the 180 days given, for filing challan.

At the outset, the Court observed that under the proviso to Section 36A(4) of the NDPS Act, the Court may extend the 180 days prescribed period for completing the investigation to one year. However, the same may be done on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

In this backdrop, the Court was of the opinion that "merely filing of an application in this regard does not ipso facto empower the court to extend the stipulated period for filing challan". The High Court further elaborated on the duties of Public Prosecutor and stated that a Public Prosecutor must independently apply his mind to a request by investigating agency seeking extension of time and then make a report to the court about the progress of the investigation and whether there is a necessity to keep the accused in further custody.

"The report of the Public Prosecutor, therefore, is not merely a formality but a very vital report because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements of Section 36A(4) of the NDPS Act. The contents of the report to be submitted by the Public Prosecutor, after proper application of his mind, are designed to assist the court to independently decide whether or not extension should be granted in a given case."

In the instant case, the petitioner-accused was charged with possession of commercial quantity contraband. His application for default bail was dismissed by the trial Court on the ground that the prosecution has sought for extension upto 1 year, as it had not received the FSL report.

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