Informing Accused In Prison About Plea To Extend Investigation Period Not Enough; Must Produce Them Before Court: Bombay High Court

Merely informing the undertrial prisoner through the Jail Superintendent about the prosecution having applied for extension of the 180-days period for completing the probe under stringent Narcotics Drugs and Psychotropic Substances (NDPS) Act, and granting an opportunity to the accused person to file a written reply will not automatically equate with the accused person's production before the Court, held the Bombay High Court recently while granting bail to 8 men booked in a case wherein over 1.837 kgs of mephedrone was recovered. 

Single-judge Justice Milind Jadhav noted that the Narcotics Control Bureau (NCB) applied for extension of the 180 days timeline on July 29, 2024 and the report of the Public Prosecutor, as mandated under the NDPS law, was submitted on August 13, 2024 and on the subsequent date i.e. August 14, 2024 the application was allowed by the Special Court.

However, the accused argued that they had not been produced before the Sessions Court, physically or through video-conferencing, when the extension application was considered and decided. They pointed out that the charge-sheet was eventually filed on February 5, 2025 and thus, the accused persons, sought default bail. 

In his October 5 order, Justice Jadhav clarified that the further period of investigation beyond 180 days is not available to the prosecution as a matter of right and that the Special Court is empowered to extend the said period only upon being satisfied on the basis of the report of the prosecution which must indicate the progress of the investigation and the specific reasons for detention of the accused beyond the period of 180 days.

"The order of extension therefore is not a mere administrative continuation of the original period. It is an order which directly affects the personal liberty of the accused and permits the prosecution to continue the investigation and detention of the accused beyond the period fixed by the legislature. The statutory requirements governing such extension must therefore be strictly complied with. In the present case the filing of the Application for extension before expiry of the initial period of 180 days is not by itself sufficient to answer the question which arises for consideration," the judge observed. 

The judge noted that the Special Court had on July 31, 2024 addressed a communication to the Jail Superintendent of the Yerawada Central Prison directing that the accused persons be informed about the application filed by the Investigating Officer and that copies of the same be furnished to them so as to enable them to file their reply. However, the accused persons allegedly refused to accept the copies. The Prosecutor filed its report on August 13, 2024 and the Special Court passed the order on August 14, 2024, the judge noted. 

"However with regard to the crucial requirement of production of the Applicants the order dated August 14, 2024 as presently placed before this Court does not record that Applicants were produced before the Trial Court either physically or through Video Conferencing when the extension application was considered. The fact that Advocates appeared for some accused persons or that certain accused persons submitted their say cannot by itself establish compliance with the law. A communication addressed to the Jail Superintendent and an opportunity to submit a written reply cannot automatically be equated with production of the accused before the Court. This Court is of the view that production of the accused before the Court at the stage of consideration of the application for extension is a necessary safeguard. The requirement is not an empty formality. The order of extension directly affects the personal liberty of the accused because it permits the prosecution to continue investigation and the accused to remain in custody beyond the period ordinarily prescribed by law. The Court while exercising such power must therefore ensure compliance with the procedure recognised by the Supreme Court," Justice Jadhav held. 

The judge also refused accept the contention of the NCB that the prosecution filed a subsequent chargesheet just before the expiry of the extended 180-days period. The judge said that the subsequent filing of the chargesheet cannot by itself cure a defect in the very order which is relied upon by the prosecution to enlarge the statutory period.

"The prosecution cannot derive an advantage from an extension order without first demonstrating that the order was validly passed in accordance with the statutory conditions and the binding principles governing such extension," the judge said. 

The judge noted that the allegations are serious and the societal ramifications urged by the prosecution cannot be ignored. The considerations which may be relevant while considering regular bail under the NDPS Act including the quantity of contraband and the restrictions contained in Section 37 cannot be permitted to override a statutory right where the statutory conditions for its accrual are satisfied, the judge said.

 "However the present Applications are not applications for regular bail on merits. Applicants invoke a statutory right to default bail. In a case of default bail the principal consideration is different. The Court is required to determine whether the prosecution has completed the investigation within the period prescribed by law or has obtained a legally valid extension of that period. The seriousness of the offence cannot by itself enlarge the period which the legislature has prescribed for completion of investigation," the judge said. 

Justice Jadhav said that he is conscious that the prosecution has relied upon the magnitude of the alleged offence and the large quantity of contraband involved, however, these circumstances may assume considerable importance when an application for regular bail is considered on merits. But the same cannot be permitted to determine the question whether the statutory period for completion of investigation stood validly extended.

"The right to statutory/default bail arises from the failure of the prosecution to comply with the time limit prescribed by law. The seriousness of the allegations cannot be used to cure non- compliance with the procedure governing extension of that period. In view of the observations and findings this Court is satisfied that Applicants have made out a case for grant of statutory/default bail. The extension granted by the Trial Court by order dated August 14, 2024 cannot be relied upon against Applicants for the purpose of defeating their statutory right in view of the failure to establish compliance with the requirement of keeping the concerned accused present before the Court at the stage of consideration of the application for extension," the judge ordered. 

With these observations, the bench granted bail to all the eight men in the case on a surety of Rs 1 lakh each. 

Appearance:

Advocates Taraq Sayed, Sana Raees Khan, Tabish Mooman, Nadeem Khan, Atul Patil, Anish Pereira, Raghav Srivatsa, SN Khan, Ashwini Achari, Tanmay Jadhav, Dev Bhosale, Aryan Kotwal and Devashish Dhanjode appeared for the Applicants. 

Advocates SK Halwasia and SS Halwasia represented the NCB.

Additional Public Prosecutor Sukanta Karmakar represented the State.