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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KALYAN RAI SURANA, J.
Chonghoi Haokip W/O Shri Lungsibui Thiumai – Appellant
Versus
Union Of India – Respondents
Crl.Pet. 804 of 2022
Decided on : 07-11-2022
NDPS Act - Extension of Investigation Period - Section 36A(4)
Fact of the Case:
The petitioner sought to set aside an order extending the investigation period under Section 36A(4) of the NDPS Act. The petitioner was arrested for possession of narcotics and psychotropic substances, and the prosecution sought an extension of time to complete the investigation beyond 180 days.
Finding of the Court:
The court found that the order extending the investigation period was vitiated by non-compliance with the principles of natural justice and the provisions of Section 36A(4) of the NDPS Act. The court set aside the impugned order and granted the petitioner liberty to apply for bail.
Issues: Non-compliance with principles of natural justice and Section 36A(4) of the NDPS Act, entitlement to default bail after 180 days of arrest, and the prosecution's procedural lapses.
Ratio Decidendi: The court held that the petitioner was not given notice of the application for extension, was not produced before the court, and the Public Prosecutor did not apply his mind before filing the petition. The court also emphasized the importance of the report of the Public Prosecutor for granting extension under Section 36A(4) of the NDPS Act.
Final Decision: The petition was allowed, the impugned order was set aside, and the petitioner was granted liberty to apply for bail. The court clarified that its observations were not intended to prejudice the petitioner in the trial.
ORDER
Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel for the Director of Revenue Intelligence.
2. By filing this criminal petition under section 482 Cr.P.C., the petitioner, namely, Smt. Chonghoi Haokip, has prayed for setting aside and quashing of the order dated 22.07.2022, passed by the learned Special Judge, Kamrup (M), Guwahati in DRI Case No. 18/CL/NDPS/HEROIN & METH/DRI/GZU/2021-2022, thereby exercising power under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short) to extend the period of investigation by 2 (two) months beyond 180 days.
3. It may be mentioned that the matter was moved on 17.08.2022 and subsequently the matter was listed on 16.09.2022, 20.10.2022 and 01.11.2022. Although notice of motion was not issued. However, both sides were extensively heard on merit on 20.10.2022 and 01.11.2022 and the case was reserved for delivery of orders on 07.11.2022.
4. Bereft of unnecessary details, it would suffice to mention that on 03.02.2022, on the basis of a specific information, the DRI personnel had intercepted a Maruti Eco Van Vehicle bearing registration number AS-01-EY-3766, which was allegedly coming from Dimapur in the State of Nagaland and after following the prescribed procedure, seized the following, viz., 679.60 gram suspected heroin, 10,000 methamphetamine tablets weighing 1000 gram, which the DRI has valued to be worth about 1,47,11,648/-(Rupees One crore forty seven lakh eleven thousand six hundred forty eight only). It may be mentioned that the contraband were kept hidden/ concealed in hollow chamber at the lower end of the door frame of the said vehicle. Several other articles and documents were also seized in course of investigation. The driver of the vehicle disclosed that his wife, i.e. the petitioner and his aunt were the owners of the contraband. Later on, during search operation, a sum of Rs.4,45,200/-was recovered from the house of the petitioner on 04.02.2022 and the petitioner was arrested along with other co-accused. Later on, the said vehicle was taken to authorised service centre, where upon thorough search, on 12.02.2022, a further quantity of 1,00,000 (One lakh) methamphetamine tablets was recovered from a separate partition made inside the fuel tank, which the DRI personnel had valued at Rs.7,00,00,000/-(Rupees Seven crore only).
5. It may be mentioned that within the period of 180 days, the prosecution could not submit the charge-sheet, as the investigation could not be completed. Therefore, by filing a petition bearing no. 2099/2022 dated 22.07.2022, which was filed by the Junior Standing Counsel for the DRI-cum-Public Prosecutor, the Investigation Officer of DRI had prayed for extension of time for completing the investigation. The learned Special Judge, Kamrup (M), Guwahati, by an order passed on the same day, i.e. on 22.07.2022, allowed the prayer made under Section 36A(4) of the NDPS Act and extended the time to complete the investigation.
6. The learned counsel for the petitioner has submitted that the order dated 22.07.2022 was vitiated by non-compliance of the principles of natural justice and non-adherence to the provisions of Section 36A(4) of the NDPS Act, 1985. Hence, it was submitted that the petitioner had become entitled to default bail after 180 days of her arrest. It has been further submitted that procedural lapses and/or impropriety committed by the prosecution as well as the Court of the learned Special Judge, Kamrup (Metro), Guwahati are, viz., (i) the petitioner was not given any notice of application filed by the prosecution for extension of time; (ii) on 22.07.2022, when the said petition was moved, the petitioner was not produced before the Court of the learned Special Judge, Kamrup (Metro), Guwahati; and (iii) the Public Prosecutor had merely did a clerical job of merely lending his name for filing the petition, but there is nothing on record that he had appl
The importance of compliance with the principles of natural justice and the mandatory requirements of Section 36A(4) of the NDPS Act for granting extension of the investigation period.
Non-compliance with procedural requirements for extending the investigation period under the NDPS Act can vitiate the order and entitle the accused to relief.
Default bail(Statutory bail) – Extension of statutory period of detention – Investigating Officer has no power or right to file petition under Section 36-A(4) of NDPS Act – Said power is of Public Pr....
The court emphasized the importance of the public prosecutor's independent application of mind and the need for specific and compelling reasons for seeking detention beyond the stipulated period unde....
The court established that extensions under Section 36A(4) of the NDPS Act require a Public Prosecutor's report and specific reasons for detention beyond 180 days.
The right to default bail under Article 21 is a constitutional guarantee, requiring adherence to procedural safeguards when extending investigation periods.
Investigating Officer has no power or right to file a petition under Section 36-A(4) of the NDPS Act.
The extension of the investigation period under the N.D.P.S. Act must be granted after providing a fair opportunity for the accused to oppose the extension sought by the prosecution.
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