The Bombay high court has granted default bail to a Nigerian national accused of possessing a commercial quantity of contraband material by the Narcotics Control Bureau (NCB), since the agency failed to file a charge sheet within the stipulated period of time.

NCB arrested Maduabuchi Igwe at Panvel railway station late in the night on December 30, 2019 and allegedly recovered 500gm of Mephedrone, 490gm of pink MDMA tablets and 75gm of grey MDMA tablets from his possession.

Igwe moved the high court challenging July 1, 2020 order of the Special Court at Panvel, granting extension of 90 days to NCB to complete investigation and file a charge sheet under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The extension of 90 days was granted over and above the maximum period of 180 days prescribed under Section 36-A (4) of the NDPS Act, which expired on June 28, 2020.

Igwe’s counsel, Advait Tamhankar submitted that the order passed by the special court was not only illegal and perverse but was also against the mandate of Section 36-A (4), since it was passed sans “application of mind”. He pointed out that no independent report of the prosecutor, as required under Section 36-A (4), was submitted for seeking the extension.

Advocate Hiten Venegaonkar, who appeared for NCB, conceded that the order did not indicate that there was an independent application of mind by the prosecutor. He, however, tried to justify the special court order saying the NCB application did have the grounds warranting the extension.

Justice Prithviraj Chavan, however, rejected the request and said it is quite clear that Section 36-A (4) requires a report by the public prosecutor and not the investigating officer, and the report should indicate the progress of investigation.

“A bare look at the impugned order demonstrates a total non-application of mind by the special court, which cursorily passed the order without assigning any reasons, which is a sine qua non for further detention of the accused in custody” said justice Chavan.

“It is apparent from the application dated June 23, 2020 moved by the prosecution that it was signed by the intelligence officer of the NCB, Mumbai, which is simply endorsed by the Special Public Prosecutor by putting his signature,” said the judge.

“It, therefore, cannot be said to be a report of the public prosecutor, as the public prosecutor seems to have acted like a postman,” the judge said.

HC added that the right of default bail accrued to the accused in terms of Section 167 (2) of CrPC has been thwarted by the special court by granting the extension.

Observing that liberty of the Nigerian national needed to be protected, justice Chavan granted him bail on a personal bond of Rs 1 lakh and one or two sureties in the same amount.

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