- The Hon’ble High Court (HC) of Punjab & Haryana in the case of Joginder Singh v State of Haryana, set aside an order of the Trial Court rejecting default bail to the Petitioner and ordered the Petitioner to be released on furnishing requisite bonds.
- The petitioner was arrested under the Narcotics Drugs & Psychotropic Substances Act, 1985 (NDPS Act) for carrying Tramado Hydrochloride Prolonged-release Tablets-IP and Tricore-SR, a contraband.
- The Petitioner applied for bail under Section 167(2) of the Criminal Procedure Code (CrPC) read with Section 36-A(4) of the NDPS Act since challan was not filed within the stipulated period of 1890 days.
- Section 36A(4) of NDPS provides for extending the period of detention of an accused beyond the stipulated period of 180 days upon submission of the report the Public Prosecutor indicating the progress of investigation and specifying the reasons extending the detention beyond 180 days.
- The bail was denied on the grounds that prosecution had been permitted to file the final report under Section 173 CrPC. within an extended period upto one year.
- The Court noted that mere filing of an application does not ipso facto empowers the court to extend the stipulated period for filing challan; progress of investigation and reasons for extending detention must be recorded. It was also stated that a copy of application for extension of time was not served to the Petitioner and the impugned order was also passed in the absence of the petitioner.
- The Court also remarked that the Public Prosecutor, being an independent statutory authority, and his report to the Court, on the face of it, must disclose that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation.
- Further, the court remarked that the Prosecutor’s report is of vital importance given the fact that its acceptance affects the liberty of the accused and therefore, it must strictly comply with the requirements laid down under Section 36A(4).
- Elaborating on the issue, the Court further remarked that court must besatisfied for the justification, from the report of the Public Prosecutor, to grant extension of time to complete the investigation.
- The Court noted that in the instant case, the application for extension of time by the Investigating Officer (IO) cannot be construed as a report of the Public Prosecutor since the latter had merely appended his signatures at the bottom of the page.
- The Prosecutor’s report did not even make an endorsement that he has perused the grounds and if he was satisfied about the progress of investigation and reasons set out for extension of time to complete the investigation. The Court held that the application for seeking extension of time was nothing but a transmission of request of an IO.
- Relying on the decision of the Hon’ble Supreme Court in a similar case of Sanjay Kumar Kedia v Narcotics Control Bureau the Court held that the Prosecutor’s order lacked adherence to the mandatory conditions laid out under Section 36A(4).
- In the absence of an appropriate report, the court would have no jurisdiction to deny an accused his indefeasible right to be released on bail owing to the Prosecution’s default to file the challan within the prescribed time provided the accused seeks and is prepared to furnish the bail bonds as directed by the Court.
- Elaborating on the indefeasible right of an accused person under Section 167(2) of the CrPC, the Court observed that the section creates an indefeasible right in an accused, on account of the ‘default’ by the investigating agency in the completion of the investigation within the prescribed period or the extended period, as the case may be, to seek an order for his release on bail.
- It is for the aforementioned reason that an order for release on bail under this section is termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period.
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