NDPS Act | Prosecutor Is Independent Statutory Authority, Must Apply Independent Mind To Justify Extension For Investigation: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has recently observed that a Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not extension of time for completing the investigation is justified in the facts and circumstances of the case.

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged an order passed by Additional Sessions Judge, Srinagar whereby ten days extension for completing the investigation beyond 180 days had been granted to the Investigating Agency in a NDPS Act case.

Challenging the order of trial court the petitioner contended that the extension of period in completing the investigation granted by the court below in favour of the Investigating Agency is contrary to law and, as such, the petitioner is entitled to grant of default bail.

The petitioner further submitted that the requirements of Section 36-A of the NDPS Act were not fulfilled in the instant case and that no notice was given to the petitioner prior to passing of the impugned order and, as such, the principles of natural justice have been violated.

Dealing with the matter the bench noted that in the instant case the petitioner had claimed bail before the trial court on the ground that the Investigating Agency had defaulted in completing the investigation within the time stipulated under Section 36-A of the NDPS Act read with Section 167 of the CrPC, however the plea came to be dismissed as being infructuous because of the extension of 10 days time granted by the court to complete investigation

In its bid to answer the contentions raised the bench observed that a collective perusal of Section 36A of NDPS and Section 167 CrPC clearly reveals that a maximum period of 90 days fixed under Section 167(2) of the CrPC has been extended to 180 days for certain categories of offences under the NDPS Act. Proviso to sub-section (4) of Section 36-A of the NDPS Act lays down that the period of 180 days can be extended by the court upto one year on the report of the Public Prosecutor indicating the progress of the investigation and for specific reasons for the detention of the accused beyond the period of 180 days, the bench underscored.

Emphasising on importance of the report of a Public Prosecutor in indicating the progress of investigation, the bench observed that the report is not an empty formality and the Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not extension of time in completing the investigation is justified in the facts and circumstances of the case.

In order to expound further on the matter the bench found it worthwhile to record the observations of supreme court in the matter of Hitendra Vishnu Thakur and others v. State of Maharashtra, (1994) 4 SCC 602, wherein SC while considering the provisions contained in sub-section (4) of Section 20 of TADA, which are in pari materia to sub-section (4) of Section 36-A of the NDPS Act,

"The Public Prosecutor is expected to independently apply his mind to the request of the investigating agency before Submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time".

Applying the said position of law to the instant matter the court noted that a communication was addressed by the Investigating Officer to the Public Prosecutor, in which a prayer was made for grant of extension of remand of the accused for a period of six months and the said communication was presented before the trial court below along with an application for grant of remand of accused signed by the Investigation Officer.

The bench further noted that it is on the basis of this application and communication addressed by the IO to the Public Prosecutor that the trial court below has passed the impugned order and there was no report of the Public Prosecutor on record of the court below nor there is any reference to any such report of the Public Prosecutor in the impugned order.

"In fact, the communication of the Investigating Officer indicating the progress of investigation has not even been addressed to the learned Sessions Judge but still then the learned Sessions Judge obliged the respondent by passing the impugned order. The course adopted by learned Sessions Judge appears to be an absolute mechanical exercise and reflects non-application of mind on his part. Even the notice has not been issued to the accused before passing the impugned order extending their detention by ten days", the bench pointed.

Keeping in view the contrary course of law adopted by the trial court the bench set aside the order for being not sustainable in law.

Observing that the petitioner had availed his indefeasible right to statutory bail immediately when the period of 180 days had expired, the court said that this right cannot be defeated by subsequent filing of the challan by the investigating Agency and hence admitted the petitioner on statutory/default bail.

Case Title: Rizwan Bashir Dhobi Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 77

Counsel For Petitioner: Mr. Umar Mushtaq, Advocate.

Counsel For Respondent: Mr. Sajad Ashraf, GA.

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