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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Dhar, J.
Rizwan Bashir Dhobi – Petitioner
Versus
UT of J&K – Respondent
CRM(M) No. 340 of 2022 & CrlM No. 1004 of 2022
Decided On : 07-04-2023
NDPS Act - Extension of Investigation Period - Section 36-A - 8/21, 22, 27-A, 29 - The court discussed the provisions of Section 36-A of the NDPS Act, which allows for extension of the investigation period up to one year, and emphasized the importance of the report of the Public Prosecutor, the progress of the investigation, and the specific reasons for detention beyond 180 days. The court highlighted the necessity of issuing a prior notice to the accused before granting an extension. The judgment quashed the impugned order and granted bail to the petitioner.
Fact of the Case:
The petitioner challenged an order granting a ten-day extension for completing the investigation in a case related to possession of drugs under the NDPS Act. The petitioner claimed default bail, arguing that the extension granted by the court below was contrary to law.
Finding of the Court:
The court found that the impugned order was not sustainable in law as it lacked the necessary report of the Public Prosecutor, did not address the progress of the investigation, and failed to issue a prior notice to the accused. The court granted bail to the petitioner, emphasizing the petitioner's right to statutory/default bail after the expiration of the 180-day period.
Issues: The issues revolved around the validity of the extension of the investigation period, the necessity of the report of the Public Prosecutor, and the requirement of issuing a prior notice to the accused before granting an extension.
Ratio Decidendi: The court emphasized the importance of the report of the Public Prosecutor, the progress of the investigation, and the specific reasons for detention beyond 180 days as prerequisites for granting an extension. It also highlighted the necessity of issuing a prior notice to the accused before extending the investigation period.
Final Decision: The petition was allowed, the impugned order was quashed, and the petitioner was admitted to bail with specific conditions. The respondent was given the option to seek cancellation of bail on merits.
JUDGMENT :
1. The petitioner has challenged order dated 02.08.2022 passed by 1st Additional Sessions Judge, Srinagar (hereinafter referred to as 'the court below), whereby ten days extension for completing the investigation beyond 180 days has been granted to the Investigating Agency to complete the investigation in FIR 9/2022 for offences under Section 8/21, 22, 27-A and 29 of the NDPS Act registered with Police Station, Nowhatta, Srinagar.
2. According to the petitioner, he was arrested by the police on 03.02.2022 in the aforesaid FIR which has been registered against him and other five co-accused. It has been submitted that the petitioner filed an application claiming default bail before the learned 3rd Additional Sessions Judge, Srinagar, on 2nd August, 2022 i.e., on 180th day and the same was listed on 3rd August, 2022. However, on 2nd August, 2022, itself, on an application filed by respondent before the court below, the impugned order came to be passed whereby extension of ten days beyond the period of 180 days for completing the investigation has been granted to the respondent.
3. The petitioner has challenged the impugned order on the ground that the requirements of Section 36-A of the NDPS Act are not fulfilled in the instant case and that the court below has ignored this aspect of the matter while passing the impugned order thereby causing miscarriage of justice. It has been further contended that no notice was given to the petitioner prior to passing of the impugned order and, as such, the principles of natural justice have been violated.
4. The petition has been contested by the respondent by filing a reply thereto. In its reply, the respondent, has, besides narrating the facts which led to the lodging of FIR against the petitioner and co-accused, contended that the petitioner is involved in a heinous offence relating to trafficking of drugs, as such, he cannot be enlarged on bail. It has been submitted that the conditions laid down in Section 37 of the NDPS Act are not satisfied in the instant case, as such, concession of bail cannot be granted to the petitioner. The respondent has further contended that the impugned order passed by the court below is perfectly in accordance with law and does not call for any interference from this Court
5. I have heard learned counsel for the parties and perused the record including the record of the court below.
6. There is no dispute to the fact that the petitioner is involved in a case relating to possession of commercial quantity of drugs and there is also no dispute to the fact that the petitioner can be granted bail on merits only if he is able to carve out a case after fulfilling the conditions laid down in Section 37 of the NDPS Act. However, in the instant case the petitioner had claimed bail before the court below 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 is contended by learned counsel for the petitioner that the extension of period in completing the investigation granted by the court below in favour of the Investigating Agency is contrary to law and, as such, the petitioner is entitled to grant of default bail.
7. In order to understand and determine the merits of the contentions raised by learned counsel for the petitioner, it would be necessary to have a look at the provisions contained in Section 36-A of the NDPS Act which provides for modified application of the provisions of Section 167 of the Cr.P.C. to offences under NDPS Act. It reads as under:-
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special
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