Point of Law: Investigating Officer has no power or right to file a petition under Section 36-A(4) of the NDPS Act.

ORDER :

1. This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’ for convenience) to quash Annexure 4 order dated 18.10.2022 in Crl. M.P. No. 3053/2022, whereby the learned First Additional Sessions Judge, Thrissur extended the statutory period of detention of the petitioner, who is the third accused in Crime No. 470/2022 of Kunnamkulam police station.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. The prosecution allegation is that, the petitioner herein who is arrayed as accused No. 3 in Crime No. 470 of 2022 of the Kunnamkulam Police Station along with the other accused committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience). The specific allegation is that at about 10.35 p.m. on 03.04.2022, accused Nos. 1 and 2 were found possessing and transporting 10.80 grams of MDMA on a motorbike bearing Registration No. KL-54-E-3809 and they were intercepted and contraband taken into custody. Subsequently, they were arrested. The allegation against the petitioner is that he had procured the contraband article from the fourth accused and had handed over the same to accused Nos. 1 and 2. The petitioner was arrested on 04.04.2022 and he has been in custody thereafter.

4. The petitioner was arrested based on the confession of accused Nos. 1 and 2 and has been detained in custody. Since the prosecution failed to file Final Report within 180 days, the Investigating Officer filed Annexure 4 petition (Crl. M.P. No. 3053 of 2022) for extension of time. At the same time, the petitioner filed statutory bail application.

5. The learned Special Judge under the NDPS Act, Thrissur allowed Annexure 4 order and thereby extended the period of detention for a period beyond 180 days. Similarly, it is submitted that the statutory bail application moved by the petitioner was dismissed in view of the extension granted as per Annexure 4.

6. The learned counsel for the petitioner pointed out two anomalies while pressing for reversal of the said orders.

7. While assailing these orders, the learned counsel for the petitioner argued that in order to get extension of the period of investigation beyond 180 days, by resorting to Section 36-A(4), it is mandatory that the Public Prosecutor to file a report/petition indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. According to the learned counsel for the petitioner, Annexure 4 order was passed by the learned Special Judge, acting on a petition in the form of a report filed by the Investigating Officer/the Inspector of Police, Kunnamkulam Police Station, copy of which produced as Annexure 3 herein, and the same does not contain the progress of investigation, though there are reasons for the detention of the accused beyond the said period of 180 days. Accordingly, it is argued that the Special court went wrong in allowing Annexure 3 and dismissing the statutory bail plea of the petitioner, which is an indefeasible right of the petitioner, guaranteed by the Constitution. He has given emphasis to the decisions reported in Hitendra Vishnu Thakur and Others vs. State of Maharashtra, 1994 (4) SCC 602, Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotic Control Bureau and Another, (2009) 17 SCC 631, Unreported Crl. M.C. No. 5412/2022, Appukuttan vs. State of Kerala, 2013 KHC 3669, Unreported B.A. No. 3850/2021 and Nayantara Gupta vs. State of Maharashtra, 2020 SCC Online Bom. 873 in support of his contention.

8. It is relevant to note that, the learned Public Prosecutor, who supported the orders impugned, submitted that, Annexure 3 petition dated 27.09.2022 is one filed by the Investigating Officer and not by the Public Prosecutor.

9. Having heard as argued, it is necessary to refer the statutory wordings,