NDPS Act| Specific Reasons Must Be Provided For Seeking Detention Of Accused Beyond 180 Days: Punjab & Haryana HC

The Punjab and Haryana High Court observed that, under Section 36A(4) NDPS Act , specific reason must be provided by prosecution for seeking detention of the accused beyond the period of 180 days.

The Court was deciding a petition seeking quashing of the order passed by the Additional Sessions Judge by which the application for default bail under Section 167(2) of the Criminal Procedure Code (Cr.PC.) was rejected. Another petition was filed seeking quashing of order by which the application filed by the prosecution for extension of time for filing the challan under Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985, was allowed.

A Single Bench of Justice Jasgurpreet Singh Puri observed, “A perusal of the report of the Public prosecutor which is Annexure P-2 in CRR-2105-2023 would show that it only mentioned that as per DO letters written by the police efforts were made to collect the FSL report which was not prepared till date and therefore request was made to the Court to extend the time for collecting the FSL report and to submit the same before the Court. … A perusal of the aforesaid would show that it only states that time may be given for collecting the FSL report and extension of time was required for the purpose of collection of the FSL report whereas as per proviso to sub-section (4) of Section 36A of NDPS Act, the essential condition sine qua non is that reason has to be mentioned for seeking detention of the accused and also the progress of the investigation whereas nothing is stated in the aforesaid report pertaining to progress of the investigation nor any reason has been given seeking detention of the accused.”

The Court noted that in exceptional circumstances where it is not possible to complete the investigation within the period of 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 of the accused beyond the said period of 180 days.

Advocate Sushil Sheoran represented the petitioner while DAG Vishal Kashyap represented the State.

Brief Facts -

So far as the prayer of the petitioner for setting aside and quashing of order passed by the Judge, Special Court by which prayer for default bail under Section 167 (2) Cr.P.C was declined is concerned, the reason mentioned by the Judge was that since the period of 180 days was already extended, the petitioner was not entitled for grant of default bail. Therefore, the entire case was dependent upon the legality of the order passed by the Special Judge by which the time period was extended under Section 36A of the NDPS Act. The counsel for the petitioner argued that the Judge, Special Court allowed the application filed by the State for extension of time and granted three months extension on the ground that FSL report was not received.

It was further submitted that various letters written by the SHO to the Forensic Science Laboratory seeking expert report which was still awaited, were referred and even the report of the Public Prosecutor in this regard was also referred by the Special Judge and merely on the basis of the fact that FSL report was not received and mechanically the time was extended for a period of three months which was not justifiable under the provisions of Section 36A of the NDPS Act. It was also submitted that as per the proviso to sub-section 4 of Section 36A, it is not only that the Public Prosecutor who is to indicate the progress of the investigation but it is also necessary to provide specific reasons for the detention of the accused beyond the period of 180 days whereas the aforesaid condition was missing in the order itself and also in the report of the Public Prosecutor.

The High Court in the above context of the case said, “There are two essential ingredients for the purpose of extension of period of 180 days. These ingredients envisaged in the proviso are rather conditions precedent and conditions sine qua non for invoking the provision of the aforesaid proviso in extreme circumstances where the investigation is not complete. First condition is that the report of the Public Prosecutor suggests or indicates regarding the progress of the investigation and the second condition sine qua non is that specific reasons for the detention of the accused beyond the period of 180 days.”

The Court added that these two conditions are co-existent and non-satisfaction of even one condition will not give any entitlement to the prosecution for seeking an extension of 180 days. It also noted that the language used in the proviso is unambiguous and clear and must be given a literal construction.

“Otherwise also the grant or non-grant of a default bail is on a different pedestal as compared to grant or non-grant of regular bail under Section 439 of the Code of Criminal Procedure. The grant of bail under Section 167(2) Cr.P.C is a statutory and indefeasible right”, further observed the Court.

The Court said that the present is a case falling under the NDPS Act and therefore the period of 90 days envisaged under Section 167(2) Cr.P.C must be read along with Section 36A of the NDPS Act and for the purpose of the present case the period of 180 days can be extended by virtue of sub-section (4) of Section 36A of the NDPS Act for a further period of one year but subject to the conditions specified under the proviso which are contained in the proviso to sub-section (4) of Section 36A of the NDPS Act.

Accordingly, the High Court allowed both the petitions and set aside the order being contrary to the provisions of Section 36A (4) of NDPS Act.

Cause Title- Ravinder @ Bhola v. State of Haryana (Neutral Citation: 2023:PHHC:140642)

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