In CRR-1357-2022-PUNJ HC- Non-receipt of FSL report and pending arrest of co-accused, are invalid reasons for granting extension for filing chargesheet beyond 180 days & thereby keeping NDPS accused in further detention: P&H HC
Justice Vikas Bahl [19-09-2022]

Read Order: Gurmej Singh v. State of Haryana

Monika Rahar

Chandigarh, September 28, 2022: The Punjab and Haryana High Court, while dealing with revision petitions in drugs case, has held that the non-receipt of the FSL report and pending arrest of the co-accused are invalid grounds for granting an extension of time for filing the chargesheet beyond the stipulated period of 180 days & thereby keeping the accused in further detention. 

Further, the Bench of Justice Vikas Bahl held that the public prosecutor’s application under Section 36A(4) of the NDPS Act for extension of time for keeping the petitioner in further detention, beyond the stipulated period of 180 days did not meet the parameters as laid down under Section 36A(4) of the NDPS Act. 

The Court was dealing with two revision petitions. The first petition challenged the order (first impugned order) of the Additional Sessions Judge, Kurukshetra allowing the public prosecutor’s application under Section 36A(4) of the NDPS Act for an extension of time for filing the final report under Section 173 Cr.P.C. While the second revision petition challenged the order (second impugned order) of the Special Court, Kurukshetra vide which the petitioner’s application under Section 167(2) read with Section 173(5) of the Cr.P.C. for “default bail” was dismissed. 

The case of the petitioner’s counsel was to the effect that after being arrested in a drugs case on December 21, 2021, the petitioner was produced before the Court on the next day and on June 15, 2022, the public prosecutor moved an application under Section 36A(4) of the NDPS Act for extension of time for filing the challan without stating any specific reasons as to why the detention of the petitioner, beyond the stipulated period of 180 days, was necessary. 

It was submitted that the public prosecutor had not applied his independent mind and had merely forwarded what the investigating officer had stated in his application for seeking an extension of time for the presentation of the challan. It was also the counsel’s case that the impugned order granting the said extension was passed without even considering the above vital aspect of requiring to give specific reasons as to why the custody of the petitioner was required beyond the stipulated period of 180 days. 

It was further submitted that two reasons were given in the impugned order for seeking the said extension of time, the first of which was that the FSL report was not received and secondly, the arrest of the co-accused Raju @ Diwan Aacharya was still pending. It was submitted that neither of the said two reasons could have been stated to be sufficient reasons for seeking further custody of the present petitioner. 

The issue which arose for the Court’s consideration was whether the reasons given for allowing the application under Section 36A(4) of the NDPS Act, to extend the time period by another three months for permitting the prosecution to complete the investigation and for the presentation of the challan, and thus, in effect, defeating the right of the petitioner to grant of 'default bail', were valid and sufficient. 

After hearing the parties and considering the law, the Court opined at the very outset that in the first impugned order no specific, much less compelling, reason was spelt out to substantiate as to why the detention of the petitioner beyond the period of 180 days was necessary. 

“The impugned order has not taken into consideration, one of the essential ingredients of Section 36A(4) of the NDPS Act, which was required to be complied with for the extension to be granted for keeping the petitioner in further detention”, the Bench opined. 

Further, the Bench opined that the reasons given in the impugned order i.e., non-receipt of the FSL report and pending arrest of the co-accused Raju @ Diwan Aacharya, were invalid reasons for granting extension & thereby keeping the petitioner in further detention and further it was noted that nothing was stated in the impugned order to show as to how the detention of the petitioner would facilitate the arrest of the said co-accused or the receipt of the FSL. 

Also, while perusing the application of the public prosecutor under Section 36A(4) of the NDPS Act for extension of time, the Court opined that no specific reasons were stated therein for keeping the petitioner in further detention, beyond the stipulated period of 180 days and thus, the application did not meet the parameters as laid down under Section 36A(4) of the NDPS Act. 

Lastly, the Court observed, 

“It is not in dispute that the period of 180 days had already elapsed on the date on which the application under Section 167(2) Cr.P.C. read with Section 173(5) was filed. Since this court has come to the conclusion that the extension of time is granted… was not in accordance with law and thus the said order… is liable to be set aside and accordingly, the application of the petitioner filed under Section 167(2) Cr.P.C. read with Section 173(5) Cr.P.C., which creates an indefeasible right in an accused person on account of the default by the investigating agency, deserves to be allowed…”

Thus, both criminal revision petitions were allowed.