The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.437 of 2025 Bhikun Mahakud & another …. Petitioners Mr. A.R. Panda, Advocate -Versus- State of Odisha …. Opposite Party Mr. P.K. Sahoo, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 11.08.2025 Order No. 03. 1.
Legal Reasoning
Heard Mr. Panda, learned counsel for the petitioners and Mr. Sahoo, learned ASC for the State. 2. Instant revision is filed by the petitioners challenging the impugned order dated 1st February, 2025 passed in connection with C.T. (NDPS) Case No.17 of 2024 by the learned Judge, Special Court under N.D.P.S. Act-cum- Additional Sessions Judge, Angul, whereby, the extension for completing the investigation was allowed without proper hearing in terms of Section 36A(4) of the NDPS Act. 3. 4. Perused the P.R. as at Annexure-1. An application under Section 36A(4) proviso as per Annexure-2 was moved by the learned Special Public Prosecutor before the learned Court below and considering the Page 1 of 6 same, extension to complete the investigation was allowed vide Annexure-3. On a reading of Annexure-2, the investigation was to be concluded within the stipulated period of 180 days by 2nd February, 2025 and since, it was still in progress, such a request was received by the learned Court below, whereafter, the impugned order dated 1st February, 2025 i.e. Annexure-3 was passed and the same is under challenge on the ground that the petitioner was not provided a reasonable opportunity of hearing as statutorily mandated. 5. Mr. Panda, learned counsel for the petitioners submits that granting of extension of time for completion of investigation without any opportunity of hearing provided to the petitioners entitles them to go on default bail in terms of Section 167(2) Cr.P.C read with Section 36A(4) of the NDPS Act and while advancing such an argument, he cited a decision of this Court in Kartik Nag Vrs. State of Odisha (2022) 87 OCR 681. The submission is that mere attempt in the service of a copy of the application i.e. Annexure-2 on the learned defence counsel appearing for the petitioners before the learned Court below would not suffice compliance of law and the principles of the natural justice, since, it was received on 1st February, 2025 and disposed of immediately thereafter followed by the impugned order i.e. Annexure-2. 5.1. On the other hand, Mr. Sahoo, learned ASC for the State would submit that commercial quantity of contraband substance is involved and hence, the learned Special Public Prosecutor moved the learned Court below on 1st February, Page 2 of 6 2025 as the stipulated period of 180 days was to expire on 2nd February, 2025 and entertaining the same, the extension was allowed and hence, there is no illegality committed. It is further submitted that such extension is permissible, if it is not possible to complete the investigation within the stipulated period and the learned Court below, therefore, extended the time on an application received as per Annexure-2 and hence, the impugned order dated 1st February, 2025 i.e. Annexure-3 is perfectly justified and in accordance with law. 6. The petitioners are involved in illicit transportation of contraband Ganja of commercial quantity and both were arrested on 7th August, 2025 and since, the investigation could not be concluded within 180 days expiring on 2nd February, 2025, the learned Special Public Prosecutor moved the learned Court below with Annexure-2. From the impugned order i.e. Annexure-3, the Court finds that such an application was received on 1st February, 2025 and thereafter, the learned Court below proceeded to allow extension of time to complete the investigation invoking Section 36A(4) proviso of the NDPS Act. It is revealed from Annexure-3 that a copy of the said application was served on learned defence counsel but he refused to receive the same, whereafter, the learned Court below was constrained to consider the same and proceeded to allow the extension. Such extension has been sought for from the side of the prosecution, a day before expiry of the stipulated period. If the investigation was not able to be concluded before expiry of the stipulated period, the Court is of the humble view that such an application as per Annexure-2 should have been Page 3 of 6 moved little earlier so as to provide the defence reasonable time to respond. In the case at hand, at the fag end, just before expiry of 180 days i.e. on 1st February, 2025, the request for extension was received. 7. Referring to the decision of this Court in Rajendar Kakodiay@Rajendra Kakodia & another Vrs. State of Odisha (2021) 84 OCR 472, Mr. Panda, learned counsel for the petitioner submits that mere service for an application seeking extension of time to complete the investigation on the defence counsel is not sufficient compliance of the principle of natural justice. In fact, referring to the case law in Lambodar Bag Vrs. State of Orissa (2018) 71 OCR 31, it has been held therein that there is nothing on record to show that on the date of consideration of the application seeking such extension, the same was informed to the learned defense counsel. The submission of Mr. Panda, learned counsel for the petitioners is that the learned Special Public Prosecutor said to have made an attempt to serve a copy of the application i.e. Annexure-2 on the learned defence counsel on 1st February, 2025 itself and as such, no reasonable time was allowed by learned Court below to consider the response of the petitioners. On more citation in Iswar Tiwari Vrs. State of Odisha (2020) 80 OCR 289 is placed reliance on by Mr. Panda, learned counsel to submit that a notice is a must and mandatorily to be issued to the accused, who is required to be produced before the Court, whenever, any such application seeking extension of time to complete the investigation is received by a Court. In the decision (supra), extension beyond 180 days was held to be allowed subject to a Page 4 of 6 rider that the conditions enumerated in Section 36A(4) proviso of the NDPS Act are fulfilled and concluded that a notice is mandatorily required to be issued to the accused to satisfy the provisions of law. As earlier stated, the petitioners are in custody from 7th August, 2024 and the stipulated period was to expire on 2nd February, 2025 and the application as per Annexure-2 was received by the learned Court below on 1st February, 2025. In view of the case laws cited and discussed herein above, according to the Court, the learned Court below was to consider production of the petitioners or at least an intimation regarding extension of time to complete the investigation beyond 180 days was to be given with a reasonable opportunity of hearing allowed for them to reply and respond. It is reiterated that such application or refusal by the learned defence counsel for the petitioners to receive a copy of Annexure-2 is held to be not sufficient compliance of the provisions of law. As it is held in Rajendar Kakodiay@Rajendra Kakodia & another (supra) and in view of the decision in Kartik Nag (supra) and since there has been an extension allowed with the remand of the petitioners beyond the stipulated period, it has to be held that such remand to be not lawful and hence, both are liable to be released on default bail in terms of Section 167(2) Cr.P.C. Such is the view of the Court for the reason that a Court receiving a request to extend the period of investigation beyond the stipulated period permissible in view of Section 36A(4) proviso of the NDPS Act requires specific reasons to be assigned for so as to make the detention of the accused lawful beyond such period. In the instant case, no such exercise has been undertaken by the Page 5 of 6 learned Court below, which, merely upon accepting a request from the side of the prosecution receiving Annexure-2 without reasonable opportunity of hearing being provided to the petitioners allowed the extension to complete the investigation. Since the production of the petitioners or at least providing the learned defence counsel appearing for them an opportunity of proper hearing was not accomplished, the Court reaches at a conclusion that due procedure has not been followed while allowing extension to complete the investigation, the further detention of the petitioners is not legally tenable, hence, are entitled to be released under Section 167(2) of the Cr.P.C. even though at a later stage, the chargesheet was filed 8. Accordingly, it is ordered. 9. In the result, the revision stands allowed. As a necessary corollary, the impugned order dated 1st February, 2025 at Annexure-3 of learned Judge Special Court under N.D.P.S. Act-cum-Additional Sessions Judge, Angul in C.T.(NDPS) Case No.17 of 2024 is hereby set aside directing release of the petitioners forthwith subject to suitable conditions imposed as considered necessary and expedient in the facts and circumstances of the case. 10. Issue urgent certified copy of this order as per rules. Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Balaram Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 13-Aug-2025 11:40:23 (R.K. Pattanaik) Judge Page 6 of 6