Accused Entitled To Default Bail When Extension Of NDPS Investigation Granted Without Notice Or Hearing: P&H High Court
The Punjab and Haryana High Court has granted default bail to two accused in an NDPS case, holding that an order extending the statutory period for completing investigation beyond 180 days cannot be relied upon against an accused who was neither noticed nor given an opportunity to oppose the extension — even if the extension application was framed as a composite one covering all co-accused...
The Punjab and Haryana High Court has granted default bail to two accused in an NDPS case, holding that an order extending the statutory period for completing investigation beyond 180 days cannot be relied upon against an accused who was neither noticed nor given an opportunity to oppose the extension — even if the extension application was framed as a composite one covering all co-accused in the same FIR.
Justice Manisha Batra noted that, "the fact that the application was styled as a composite application in the case arising out of the same FIR or that the operative portion of the order did not restrict the extension to any particular accused cannot dispense with the mandatory requirement of affording the concerned accused an opportunity to be heard before an order having the effect of extending his period of incarceration beyond the statutory period is passed."
The Court concluded that the extension "cannot be sustained qua the petitioners, as the mandatory safeguard of notice and opportunity of hearing was not complied with," and that they had therefore "acquired an indefeasible right to default bail upon expiry of the statutory period of 180 days."
The case arose from an FIR registered in December 2025 under Sections 22-C, 22-B and 29 of the NDPS Act after a raid recovered 300 Pentazocine injections and 20 Binorphine injections. Two persons, Sanjay and Krishan Kumar, were apprehended at the spot; petitioner Akash was arrested days later based on further investigation, and petitioner Vishal was arrested on Akash's disclosure. Akash and Vishal were placed in separate remand proceedings.
Since the recovery involved commercial quantity, the prosecution had 180 days under Section 36-A(4) NDPS Act to file the challan — expiring on 22.06.2026 for Akash and 23.06.2026 for Vishal. Before this period expired, the prosecution moved an application seeking a three-month extension, citing pending mobile-data analysis, call detail records, and manufacturer records to establish the supply chain. The Additional Sessions Judge, Palwal, granted the extension on 29.05.2026. When the petitioners applied for default bail after expiry of 180 days, their applications were dismissed on the ground that the extension had already been granted, leading to the present three connected revision petitions, two challenging the bail dismissal and one directly challenging the extension order.
Counsel for the petitioners argued that although a zimni order dated 26.05.2026 directed notice of the extension application to be issued to the accused in REMP No.9 of 2026 (Sanjay and Krishan), no notice was issued to the petitioners and neither they nor their counsel were heard when the extension was granted on 29.05.2026. It was contended that this violated the mandatory safeguards under Section 36-A(4) NDPS Act and could not defeat their indefeasible right to default bail.
The State countered that the extension application was a composite one covering the entire case arising from the FIR, that the operative order did not restrict the extension to any particular accused, and that a charge-sheet against all four accused was eventually filed on 03.08.2026.
The Court held that the proviso to Section 36-A(4) NDPS Act incorporates mandatory safeguards, including securing the accused's presence, physically or via video link — before extending the investigation period, since the accused has a right to oppose such extension. Relying on Jigar, the Court found that since the petitioners were being proceeded against in a separate remand file and were never noticed in those proceedings, they were "neither present before the learned Court nor represented through counsel" when the extension was granted on 29.05.2026.
The Court rejected the State's argument that the composite nature of the application or the unrestricted operative order could cure this defect, holding:
"The fact that the report of the learned Public Prosecutor referred to the progress of investigation in the case as a whole may be relevant for consideration of the merits of the prayer for extension, but it cannot cure the foundational defect of absence of notice and opportunity of hearing to the petitioners."
The Court further noted that the petitioners had filed their default bail applications on 25.06.2026 — well before the charge-sheet was filed on 03.08.2026 — so their right, once accrued and availed, could not be retrospectively defeated by the subsequent charge-sheet, citing Enforcement Directorate v. Kapil Wadhawan, 2023(2) RCR (Criminal) 474, on the indefeasibility of default bail once availed before filing of the final report.
Allowing all three revision petitions, the Court set aside the extension order dated 29.05.2026 qua the petitioners, and consequently set aside the order dated 01.07.2026 dismissing their default bail applications. The petitioners were held entitled to default bail under Section 187(3) BNSS and ordered released on furnishing personal and surety bonds, subject to their not being required in any other case. The Court clarified that its order did not reflect any opinion on the merits of the prosecution case, and that the subsequently filed charge-sheet would be dealt with by the trial court in accordance with law.
Case Title: Akash v. State of Haryana; Vishal v. State of Haryana; Vishal and another v. State of Haryana