Public Prosecutor Must Independently Apply His Mind U/S 36(A)(4) NDPS Act To Request Of Investigating Agency Before Submitting Report For Extension Of Time: P&H HC

The Punjab and Haryana High Court said that under Section 36(A)(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Public Prosecutor has to independently apply his mind to the request of the Investigating agency before submitting a report to the court for extension of time.

The Court was deciding a revision petition seeking for setting aside the order of the Trial Court by which the application under Section 36(A)(4) of NDPS Act for extension of time to file the challan was allowed.

A Single Bench of Justice Sandeep Moudgil held, “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 Public Prosecutor 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 and 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.”

The Bench noted that 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.

Advocate Arjun Dhingra appeared on behalf of the petitioner/accused while Sr. DAG B.S. Virk appeared on behalf of the respondent/State.

In this case, the accused had challenged an order vide which the default bail sought by him was declined in an FIR registered under Section 20 of NDPS Act. The question before the High Court was whether the petitioner is entitled to the benefit of default bail under Section 167(2) of the Criminal Procedure Code (CrPC).

The High Court after hearing both parties observed, “The legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the Public Prosecutor in the first instances and satisfy him about the progress on the investigation and furnish reasons for seeking further custody of an accused.”

The Court said that the impugned order lacks satisfaction of mandatory conditions of Section 36 A (4) of NDPS Act and in the absence of an appropriate report, the Trial Court 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”, it added.

The Court noted that so long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167 (2), kicks in and must be granted.

“The right to default bail, as has been held by the judgments of the Apex Court as well as of this Court, is not only the statutory right under the first proviso to Section 167 (2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled”, it further said.

The Court, therefore, held that the accused has an indefeasible right accrued to him even if the period of 180 days stands extended by the Trial Court and is entitled to the benefit of ‘default bail’ under Section 167(2) of CrPC.

Accordingly, the High Court allowed the revision petition, set aside the order of the Trial Court, and granted bail to the accused.

Cause Title- Pardeep Kumar v. State of Haryana (Neutral Citation: 2024:PHHC:052426)

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