Arjun v. State of Uttarakhand

FIR/Case Crime No.145 of 2023, dated 11.03.2023, under Sections 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Kotwali Gangnahar, Roorkee, District Haridwar. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. According to the FIR, narcotic substances in commercial quantity was recovered from the possession of the applicant.

4. Learned counsel for the applicant would submit that the applicant was remanded in judicial 2 custody on 11.03.2023; since it was allegedly a case of recovery of commercial quantity of narcotic substances, therefore, investigation could have been completed within 180 days in view of Section 36-A (4) of the Act; this period could have been extended to the period for one year under proviso to 36-A (4) of the Act on the report of the Prosecuting Officer. But, it is argued that in the instant case, the prosecution did not conclude the investigation within 180 days, which expired on 06.09.2023. On that date an application was filed by the Investigating Officer seeking judicial custody of the applicant for further 14 days and on it, an order was passed extending the judicial custody of the applicant for 14 days, which it is argued, is not as per law. The applicant moved bail application on

21.09.2023 claiming default bail, as well, but it has been rejected.

5. Learned counsel for the applicant would submit that extension of 180 days period under the proviso to 36-A (4) of the Act would be made only on an application of the prosecution, which is not done in the instant case, therefore, it is argued that within 180 days charge-sheet was not filed by the Investigating Officer and, thereafter, the bail application was filed by the 3 applicant on 21.09.2024, which ought to have been allowed and the applicant deserves to be enlarged on bail.

6. Learned State counsel would submit that the charge-sheet was submitted in the case on 09.02.2024. She would submit that when the judicial custody of the applicant was extended for 14 days on 06.09.2023, till that date investigation was not concluded.

7. The sole question is that as to whether the applicant is entitled to bail? Section 36-A(4) reads as follows:- “36-A. Offences triable by Special Courts.— (1) …………………………………………………………….. (2) ……………………………………………………………. (3) ………………………………………………………….. (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”: Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.”

8. A bare reading of the above provision makes it abundantly clear that under normal circumstances in 4 case of recovery of commercial quantity, the investigation could be completed within 180 days and till then, there is no question of default bail. But, proviso 36-A(4) makes it further clear that on a report of the Public Prosecutor, this period of 180 days may be extended to one year.

9. In the instant case, admittedly within 180 days investigation was not completed. It is further important to note that on 06.09.2023, the Prosecutor did not submit any report for extending the period from 180 days to one year, instead, the Investigating Officer submitted an application for extending the custody of the applicant for further 14 days. That application was merely submitted by the prosecution and on it, on the same date, the court extended the custody of the applicant for 14 days under Section 36-A(4) of the Act.

10. Extension of period from 180 days to one year under the proviso of Section 36-A(4) of the Act is not a mere formality. In the case of Sanjay Kumar Kadia vs. Intelligence Officer, Narcotic Control Bureau and another, (2009)17 SCC, 631, the law has been discussed on this aspect by the Hon’ble Supreme Court. In that case also one of the extension application moved by 5 Investigating Officer was endorsed by the prosecution. The Hon’ble Supreme Court observed as follows:- “18. A bare perusal of this application shows that it has been filed by the investigating officer of Respondent 1 and does not indicate even remotely any application of mind on the part of the Public Prosecutor. It further does not indicate progress investigation, the compelling reasons which required an extension of custody beyond 180 days. This application was allowed by the Special Judge on 2-8-2007 i.e. on the day on which it was filed which also reveals that no notice had been issued to the accused and he was not even present in court on that day.”

11. Further, in para 21, the Hon’ble Supreme Court observed as follows:- “21. We are, therefore, of the opinion that the extensions granted to the investigating department under the proviso to Section 36-A(4) did not satisfy the conditions laid down therein and both the extensions, therefore, being contrary to law, must be struck down accordingly.”

12. In the case of Jigar alias Jimmy Pravinchandra Adatiya vs. State of Gujarat, (2023)6 SCC 484, the Hon’ble Supreme Court observed, “The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. ”

13. In the instant case, as such, no report has been filed by the prosecution for extension of time for 6 completion of investigation in one year, as required to be filed under the proviso under Sub Section (4) of Section 36-A of the Act. The application that was filed by the Investigating Officer on 06.09.2023 in the instant case is merely for extension of judicial custody for 14 days and it has been endorsed by the Prosecutor. It is not in conformity to the proviso of Section 36-A(4) of the Act. Therefore, the grant of extension of judicial custody is not in accordance with law. It means, no extension was ever given for completion of the investigation.

14. The charge-sheet was filed in the matter on

09.02.2024. Prior to it, on 21.09.2023, an application for default bail has been filed by the applicant. Admittedly, till that date, charge-sheet was not filed. Therefore, this Court is of the view that within 180 days, the prosecution has not filed the charge-sheet in the instant case, the period of 180 days has not been extended in accordance with law. Before filing of the charge-sheet beyond 180 days the applicant had filed bail application. In view of it, this Court is of the view that the applicant is entitled for bail.

15. The bail application is allowed. 7

16. Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the court concerned. Sanjay (Ravindra Maithani, J.) 11.02.2025