In CRIMINAL APPLICATION NO.950 OF 2021- BOM HC- In NDPS cases, non-availability of Chemical Analyser’s report is not justifable ground to seek extension of time to complete investigation and consequent detention of accused: Bombay HC Justice N.J.Jamadar [09-06-2022]

Read Order: ASIF ABDUL MEMON V. THE STATE OF MAHARASHTRA 

Mansimran Kaur

Mumbai, June 23, 2022:While allowing the application filed by the applicant challenging the legality of the order passed by the Special Judge whereby two months’ time was granted to complete the investigation, the Bombay High Court has observed that in a case registered under the NDPS Act, 1985 the non availability of the CA report does not constitute a justifiable ground to seek an extension of time to complete the investigation and the consequent detention of the accused.

The Single-Judge Bench of Justice N.J. Jamdar was considering a case wherein the applicant in the present case was arraigned  as an accused in a criminal case registered against him for the offence punishable under Sections 20 (c) read with 8 (c) and Section 29 of the Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He preferred an application under Section 482 of the Code of Criminal Procedure , 1973, wherein he assailed the legality of the order of the Special Judge whereby two months’ extension time was granted to complete the investigation. 

On March 25, 2021, pursuant to information raid was conducted on Pune – Mumbai Highway, wherein an Innova car was intercepted. The applicant and the first accused were found in the same car. During the course of search, in the presence of the public witnesses, 10 gunny bags containing 200 kgs of ganja were found.  Consequently the applicant and the first accused were apprehended and a case was registered against them.  By the impugned order, the Special Judge granted time to complete the investigation. 

After considering the submissions of the parties and after pursuing all the relevant material on record, the Court also noted that  having regard to the nature of the offences and particularly the wide ramifications and deleterious consequences of the offences on the society, sub-Section (4) of Section 36-A extends the period of detention from 90 days, prescribed under Section 167 of the Code, to 180 days. 

The Special Court however, is enjoined to satisfy itself about the necessity of detention of the accused beyond the said period of 180 days on the basis of the report of the Public Prosecutor, which indicates the progress of the investigation and the specific reasons for such detention beyond 180 days. These conditions are required to be strictly satisfied before the period of detention is extended as the exercise of the power impinges upon the personal liberty of the accused, observed the Court. At this stage reliance was placed on the judgments in Sanjay Kumar Kedia V/s. Narcotics Control Bureau and Hitendra Vishnu Thakur and Ors. V/s. State of Maharashtra and Ors.

On the facts of the present case, the Court stated that it was abundantly clear that what was mentioned in the report of the Public Prosecutor and was given due weight age by the Special Judge was the non-availability of the CA report. In view of the same, the Court observed that the Special Judge misdirected himself in granting the extension period of detention solely based on the premise of non – availability of the CA report. Thus, holding that the applicant was entitled to release on bail, the instant application preferred by the applicant was allowed.