S.36A(4) NDPS Act | Apart From Reasons To Detain Accused Beyond Statutory Period, Prosecutor's Report Must Disclose Progress Of Investigation: Kerala HC

The Kerala High Court on Thursday held that in order to extend the statutory period of 180 days to complete the process of investigation as per Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the report produced by the Public Prosecutor ought to disclose the progress of investigation in addition to the reasons to detain the accused person. 

Justice A. Badharudeen observed, 

"...a mere re-production of the application or request of the Investigating Officer by the Public Prosecutor in his report, without demonstration of the application of his mind and record of his own satisfaction would not render his report as the one envisaged under Section 36-A(4) of the Act. Similarly, in the report, the Public Prosecutor shall narrate the progress of investigation and the specific reason for the detention of the accused beyond 180 days".

The factual circumstances reveal that the petitioner accused herein had been apprehended by the police on 29.01.2022 for possession and transport of 241.38 gm of MDMA, for the purposes of sale. The contraband was taken into custody, and the accused was charged with offences punishable under Section 22(b) read with Section 29 of NDPS Act.

The petitioner thereafter filed a petition before the Special court, seeking statutory bail on 29.07.2022, contending that, since he had been in custody from 29.01.2022, and the final report/charge sheet was not filed within 180 days of his custody, he was entitled to get statutory bail as stipulated under Section 167(2) of Cr.P.C. Before this statutory bail plea was filed by the Petitioner, the Public Prosecutor filed a criminal miscellaneous petition under Section 36-A(4) of the NDPS Act, along with report filed by the Inspector of Police, Melparamba, seeking extension of period of investigation, beyond the period of 180 days, upto a period of one year. 

The Special Judge heard both the petitions together and allowed the criminal miscellaneous petition ordering further detention of the petitioner/accused for a period of 180 days beyond the statutory period to complete the investigation. It is against this order of the Special Judge that the instant petition was filed under Section 482 CrPC. 

Before the Single Judge, it was contended by Advocate P. Rakesh Thamban on behalf of the petitioner that in order to get extension of statutory period, the Public Prosecutor would have to indicate the progress of investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. However, in the instant circumstances, the counsel argued that although the petition filed by the Public Prosecutor specifies the reasons for the detention of the accused beyond the said period of 180 days, it does not contain the progress of investigation.

The Public Prosecutor T.R. Renjith on the other hand submitted that compliance of the mandate of Section 36-A(4) could be gathered from the recitals in the petition filed by him, therefore requiring no interference with the impugned order. 

The Court herein noted the proviso to Section 36-A which expressly states that, "if it is not possible to complete the investigation within the said period of one hundred and eighty 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 the detention of the accused beyond the said period of one hundred and eighty days". 

The Court also perused the decisions such as Hitendra Vishnu Thakur & Ors. v. State of Maharashtra (1994), Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau & Anr (2009), and Appukuttan v. State of Kerala (2013), to discern that as per Section 36-A(4) of NDPS Act, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year acting on the report of the Public Prosecutor. It was further noted by the Court that the proviso specifically provides that, 

"the Public Prosecutor, while making an application for extension of time, shall indicate two aspects on applying his mind, viz., (a) the progress of the investigation and (b) the specific reason for the detention of the accused beyond the said period of 180 days and failure to narrate either of the twin aspects, that is, both aspects together would make the said application outside the ambit of the proviso to Section 36-A(4) of the NDPS Act and in such an application, extension of time cannot be granted". 

Taken in this regard, the Court observed that as per the factual circumstances herein, even on a meticulous reading of the report submitted by the Public Prosecutor, compliance of the first condition, namely, indication of progress of the investigation could not be gathered. Therefore, it was found that the application of the Public Prosecutor was not as per the mandate in Section 36-A (4) of the NDPS Act, and that the Special Judge had gone wrong in allowing the application and denying statutory bail plea of the petitioner. 

It was also held that 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". 

Resultantly, the common order issued by the Special Judge was set aside, and the petitioner was directed to be released on conditions that had been stipulated by the Court. 

Case Title: Ubaid A.M. v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 585

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