A High Court of Jammu & Kashmir and Ladakh Bench of Justice Sanjay Dhar has observed that before a Court grants an extension in detention of the accused beyond the period of 180 days in terms of the NDPS Act, a report of the Public Prosecutor specifying the compelling reasons for seeking detention of the accused beyond the period of 180 days must be submitted.

In furtherance of the same, the Court has specified that the Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not an extension of time in completing the investigation is justified in the facts and circumstances of the case.

Counsel Umar Mushtaq appeared for the Petitioner, while GA Sajad Ashraf appeared for the Respondent.

In this case, the petitioner challenged an order passed by the Sessions Judge, whereby ten days extension for completing the investigation beyond 180 days had been granted to the Investigating Agency to complete the investigation for offences under Section 8/21, 22, 27-A and 29 of the NDPS Act.

The petitioner was indisputably involved in a case relating to the possession of a commercial quantity of drugs and claimed bail on the ground that the Investigating Agency had defaulted in completing the investigation within the time stipulated under Section 36-A of the NDPS Act read with Section 167 of the Cr.P.C. It was contended that the extension of the period was contrary to law and that the petitioner was entitled to the grant of default bail.

On a perusal of the pertinent provisions, the Court found that it was clear that a maximum period of 90 days fixed under Section 167(2) of the Cr. P. C has been extended to 180 days for certain categories of offences under the NDPS Act. It was further noted that proviso to sub-section (4) of Section 36-A of the NDPS Act lays down that the period of 180 days can be extended by the court upto one year on the report of the Public Prosecutor indicating the progress of the investigation and for specific reasons for the detention of the accused beyond the period of 180 days.

Relying on a catena of judgments, the Court concluded that before a Court grants an extension in detention of the accused beyond the period of 180 days in terms of Section 36-A of the NDPS Act, the following conditions have to be satisfied:

1) That there is a report of the Public Prosecutor;

2) That the report of the Public Prosecutor indicates the progress of the investigation;

3) That the report should specify the compelling reasons for seeking detention of the accused beyond the period of 180 days;

4) That a prior notice has to be issued to the accused;

In light of the same, the Court found that there was no report of the Public Prosecutor on record of the court below nor there is any reference to any such report of the Public Prosecutor in the impugned order.

In light of the same, the Court was of the view that "the report of a Public Prosecutor indicating the progress of investigation is not an empty formality. The Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not extension of time in completing the investigation is justified in the facts and circumstances of the case."

Therefore, it was found that the impugned order was not sustainable in law and deserved to be quashed. In that context, the Court observed that the petitioner had availed his indefeasible right to statutory bail immediately when the period of 180 days had expired. Therefore, the petitioner was entitled to grant of statutory/default bail.

Cause Title: Rizwan Bashir Dhobi v. UT Of J&K

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Jammu & Kashmir & Ladakh High CourtJustice Sanjay DharNDPS ActBail Application

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