HC opines that the investigation period cannot be extended if twin conditions of Sec 36 – A (4) are not fulfilled

 

 

Read Judgment ;

The Kerala High Court while denying the extension of the investigation period beyond 180 days, expounded that the twin conditions of stating the progress of the investigation and specifying reasons for extension beyond 180 days is a must and if the Public Prosecutor fails to comply with even one condition, the application seeking extension would be rejected. 

Brief Facts: 

The Petitioner was found to be in possession of MDMA for sale. He was nabbed and taken into custody. Thereafter, a petition was filed by the Petitioner contending that the charge sheet was not filed within 180 days and hence, he was entitled to statutory bail. Before the statutory bail plea could be filed, the Learned Public Prosecutor filed an application to seek an extension of the investigation period for 1 year.  The Learned Special Judge on hearing both petitions decided to extend the investigation period and dismissed the statutory bail plea. 

It is against this order that the present petition has been filed. 

Contentions of the Petitioner:  

It was contended that to extend the period beyond 180 days, the Learned Public Prosecutor has to indicate the progress of the investigation and state specific reasons for the detention of the Accused beyond 180 days. It was argued that the right to statutory bail is indefeasible and therefore, it should have been allowed. 

 Observations of the Court: 

The Court opined that as per Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS”) if the investigation cannot be done within the period of 180 days, then the said period can be extended up to 1 year as per the report of the Public Prosecutor.  It is further observed that the proviso explicitly lays that the Public Prosecutor while applying for an extension of time shall indicate two aspects, one is the progress of the investigation and the second is reasons for extending the period beyond 180 days. These are twin conditions that have to be fulfilled and failure to narrate either one would result in the rejection of such an application asking for extending the period beyond 180 days.  

The High Court observed that if the Public Prosecutor merely produces a replica of the application/request of the Investigating Officer without actually applying his mind then the said application would not be in accordance with Section 36-A(4) NDPS. 

The decision of the Court: 

Applying this to the present case, the Kerala High Court ruled that the application filed by the Public Prosecutor is not in terms of Section 36-A(4) NDPS and hence, the same cannot be allowed. Since the application was not within the mandate as provided by the statute, the Court further granted statutory bail to the Petitioner. 

 

Accordingly, the application of the Petitioner was allowed. 

Cause Title:  Ubaid A.M v. State of Kerala 

Bench: Hon’ble Mr. Justice A. Badharudeen 

Decided on: November 10^th, 2022  

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(With input from news agency language)

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