IMPORTANT POINT
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.

JUDGMENT :

DEEPAK GUPTA, J.

Both the petitions titled above, have arisen out of the proceedings in case FIR No.216 dated 21.03.2023 registered at Police Station Camp, Palwal, District Palwal under Section 21(c) of Narcotic Drugs and Psychotropic Substances (Act No.61 of 1985) [for short - `the NDPS Act'].

2. In CRR No.2773 of 2023, petitioner has impugned the order dated 14.09.2023, whereby learned Special Court, Palwal extended the time for completion of investigation under Section 36A(4) of the NDPS Act; whereas in CRR No.2339 of 2023, petitioner has impugned the order dated 04.10.2023, whereby benefit of default bail under Section 167(2) Cr.P.C has been declined to the petitioner.

3. As per prosecution allegations, 450 grams of smack/heroin was recovered from the possession of the petitioner on 21.03.2023. He was arrested on the same date. Following dates are material in this case:-

21.03.2023 - Recovery of contraband and arrest of the petitioner

25.03.2023 - Petitioner sent to judicial custody

14.09.2023 - Application under Section 36A(4) Cr.P.C moved for extension of time for completion of investigation.

*Allowed on the same date.

18.09.2023 - 180 days' period concluded for filing report under Section 173 Cr.P.C.

04.10.2023 - Application for default bail under Section 167(2) Cr.P.C declined.

4. It is contended by learned counsel for the petitioner that application moved by the respondent- State for extension of time under Section 36A of the NDPS Act was filed on 14.09.2023 on the ground that report from RFSL had not been received despite issuance of the DO letter of the Superintendent of Police and that without giving any notice to the petitioner or his counsel; and without seeking any report from the Public Prosecutor, the Special Court in an illegal manner allowed the application, extending the time for another 180 days for filing of the challan. Learned counsel further contends that on completion of 180 days in custody and challan having not been filed, the petitioner got indefeasible right to be released on default bail and, therefore, order dated 04.10.2023, declining him bail, is unsustainable. Prayer is accordingly made to set aside both the orders i.e. 14.09.2023 allowing the application of State under Section 36A(4) of the NDPS Act; and order dated 04.10.2023 declining the default bail to the petitioner.

5. Learned State Counsel contends that the petitioner was arrested due to recovery of contraband of the commercial category; that it is on account of non-receipt of the FSL report that challan could not be filed within 180 days; that prior to the completion of 180 days, extension of time was sought from the Court concerned, which was allowed and, therefore, the default bail has been rightly declined to the petitioner.

6. I have considered the submissions of both the sides and have appraised the record.

7. A similar question was considered by a co-ordinate Bench of this Court in CRR No.2100 of 2023 (O&M) and CRR No.2105 of 2023 (O&M), both titled Ravinder @ Bhola Vs. State of Haryana, decided vide common order dated 03.11.2023. In that case, petitioner was arrested on 14.01.2023. Period of 180 days expired on 12.07.2023. Application for extension of time was moved by the prosecution on 06.07.2023, which was extended on 11.07.2023. Challan was presented beyond 180 days on 06.10.2023 and the application for default bail was declined on 18.07.2023. Orders dated 11.07.2023, granting extension of time to file challan, and order dated 18.07.2023 declining default bail to the petitioner were challenged by way of two petitions before this Court.

8. This Court held as under:-

“10. Both the petitions would be dependent upon the legality of the impugned order dated 11.07.2023 whereby the learned Judge, Special Court has extended the period of three months beyond the period of 180 days under Section 36A of the NDPS Act. The provision of Sections 36A(4) of the NDPS Act is reproduced as under:-

“36A(4) In respect of persons accused of an offen