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2025 Supreme(Online)(Cal) 915
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:
The Hon’ble Justice Jay Sengupta CRR 837of 2025 Tajamul Sk. @ Tajamul Haque @ Tajamul Hoque Vs.
The State of West Bengal & Anr.
For the petitioner : Mr. Avik Ghatak Mr. Akash Ghosh .....Advocates For the State : Mr. Debasish Roy, ld. PP Mr. Rudradipta Nandy Mr. Sanjana Saha .....Advocates Heard lastly on : 19.05.2025
Accused must be present at hearings regarding extensions of investigation periods to preserve statutory bail rights.
Headnote:The case addresses a challenge to an order extending the investigation period under the NDPS Act, citing Section 36A(4) and its implications on statutory bail rights. The court found that failure to involve the accused during extension hearings violated procedural requirements, leading to the setting aside of the impugned orders. The court reiterates the necessity of adhering to statutory safeguards in detention matters and the right to be heard before such orders are issued. The revisional application is granted, resulting in the petitioner's immediate release on bail.
Judgment on : 19.05.2025
Jay Sengupta, J:
1. This is an application challenging an order dated 07.02.2025 passed by the learned Judge, Special Court, NDPS, Additional Sessions Judge, 3rd Court, Malda in Special Case No. 64 of 2024 arising out of Kaliachak Police Station Case No. 1255 of 2024 dated 13.08.2024, under Sections 21C , 25, 29, 27A of the NDPS Act, whereby the learned Judge was pleased to allow the prayer of the learned Public Prosecutor for extension of time for completion of investigation for a period of two months and the impugned order dated 1 0.02.2025, thereby rejecting the petitioner’s prayer for recalling the order dated 07.02.2025 and rejecting further the petitioner’s prayer for release on statutory bail.
2. Learned counsel for the petitioner submitted as follows. Kaliachak Police Station Case No. 811 of 2024 dated 07.06.2024 was initiated under Sections 21(c)/25/29/27A NDPS. The alleged date of occurrence was 13.08.2024 between 8.15 to 9.10 A.M. Information was purportedly received on 13.08.2024 at 10.45 A.M. Tajmul Sk., the petitioner was arrested on 13.08.2024 (in custody for 261 days as on 18.03.2025). 1.386 kg. of brown sugar was allegedly seized from the petitioner. On 07.02.2025 the learned Public Prosecutor prayed for extension of time to submit charge sheet since CFSL report of 1.386 kg of brown sugar had not been collected, more accused persons were yet to be apprehended and there was a possibility of further recovery. However, such prayer was allowed by vide an order dated 07.02.2025. On 10.02.2025 the petitioner preferred two applications before the learned Judge concerned, inter alia, praying therein to release him on statutory bail and to recall the order dated 07.02.2025. However, both the applications were rejected vide an order of the same date. The statutory limit of 180 days prescribed under Section 36A (4) of the NDPS Act was not a mechanical timeline. It was aimed at protecting personal liberality of an individual against arbitrary pre-trial detention. Therefore, such prescribed timeframe to conclude investigation could be extended only under compelling circumstances. This Court in Subhas Yadav v. State of West Bengal , reported at 2023 SCC Online Cal 313, held that failure to obtain the FSL report due to systemic reasons indicated indifferent progress in investigation for which the accused ought not to suffer. The Court further held that this lapse resulting in delay in completion of investigation could not in the absence of any other aggravating circumstance justify extension of detention beyond 180 days. This judgement was aimed at ensuring that State/prosecution was not permitted to take advantage of its own failure. Therefore, the learned Court below was not justified in extending the statutorily prescribed time limit of investigation mechanically only on account of non-submission of CFSL report. The failure of the Special Court to procure presence of the accused, either physically or virtually, at the time of considering the application for extension of the investigation period rendered the extension order dated 07.02.2025 illegal. It was held in Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat, reported in (2023) 6 SCC 484 and in Sanjay Dutt v. State of through CBI, Bombay (II), reported at (1994) 5 SCC 410 by the Hon’ble Supreme Court that it was mandatory to produce the accused at the time when the question of extension of the period of investigation was being considered by the court. This was a statutory requirement that flowed from 167(2) of the Code of Criminal Procedure, 1973 corresponding to Section 187(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023. Admittedly, in the present case the prayer/application for extension of the time limit of investigation was considered and allowed without procuring, either physical or virtual, presence of the petitioner. A revisional application was maintainable against an order rejecting a statutory bail application under Sectio
