Ajoy Bora vs The State Of Assam
2025 Latest Caselaw 7369 Gua

Gauhati High Court

Ajoy Bora vs The State Of Assam on 17 September, 2025

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GAHC010206942025




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./381/2025

            AJOY BORA
            SON OF LATE RAMESHWAR BORA
            RESIDENT OF MAZ PATHORI
            P.S. NAGAON, DIST. NAGAON, ASSAM

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A LAL, B C SANGTAM,MR A BRAHMA

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 17.09.2025

1. Heard Mr. A. Lal, learned counsel for the petitioner. Also heard Mr. K. K. Paras`ar, learned Additional Public Prosecutor for the State.

2. This application under Sections 438/442 read with Section 528 of BNSS has been filed by the petitioner, namely, Ajoy Bora impugning the order dated 14.08.2025 passed by the learned Special Judge, Nagaon in Nagaon P.S. Case Page No.# 2/5

No. 152/2025 whereby under Section 36(A)(4) of the NDPS Act, 1985, the period of detention of the present petitioner was extended beyond 180 days for 90 days more.

3. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars since last 206 days in connection with the aforesaid case which was registered under Sections 22(c)/25 of the NDPS Act, 1985. He submits that the Trial Court has erred in allowing the petition filed by the Investigating Officer without there being any report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the petitioner beyond the said period of 180 days. He submits that in the instant case the petition for extension of time was filed by the Investigating Officer, namely, Bhardwaz Chetry on 13.08.2025 and same was merely forwarded by the learned Public Prosecutor, Nagaon which is not in consonance with the statutory provisions contained in Section 36A(4) of the NDPS Act. In support of his submission, he has cited a ruling of a Co- ordinate Bench of this Court in the case of " Jayanandan Prasad and Anr. Vs. State of Assam" reported in "(2012) 3 GLR 397", wherein quoting the observation

made by the Apex Court in the case of " Hitendra Vishnu Thakur Vs. State of Maharashtra" reported in "(2001) 5 SCC 453", it was observed as follows:-

"7. From the language of the relevant law as well as from the judgment of the Apex Court, it is clear that the report of a Public Prosecutor is mandatory for the court to entertain an application for extension of detention period up to one year. In the aforesaid judgment of Sanjay Kr. Kedia, the hon'ble Supreme Court has observed that this condition is identical and pari materia to clause (bb) of sub-section (4) to section-20 of the TADA. The said provisions of TADA came into consideration before the Apex Court in the case Page No.# 3/5

of Hitendra Vishnu Thakur v. State of Maharashtra, (2001) 5 SCC 453.

The view taken in the said case was also approved by the Apex Court in Sanjay Kumar Kedia (supra). In my considered opinion, the legal principle, laid down by the Apex Court with regard to relevancy of the report of a Public Prosecutor for extension of time under proviso to 36A(4) of the NDPS Act in the case of Hitesh Vishnu (supra) are necessary to be looked into, which is as below:

"...A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. 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. Thus, for seeking extension of time under clause (bb), the Public Prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The Public Prosecutor may attach the request of the Investigating Officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the fact of it 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 necessary. The use of the expression 'on the report of the Public Prosecutor indicating the progress of the investigation and Page No.# 4/5

the specific reasons for the detention of the accused beyond the said period' as occurring in clause (bb) in sub-section (2) of section 167 as amended by section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the Public Prosecutor. The report of the Public Prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an Investigating Officer for extension of time is no substitute for the report of the Public Prosecutor."

4. The learned counsel for the petitioner has further submitted that the petition for extension of the period of detention was filed by the Investigating Officer on 13.08.2025, which was not a fixed date of that case and the impugned order was passed without hearing the petitioner and without giving any opportunity to the petitioner of being heard. He, therefore, submits that the impugned order for the aforesaid reasons is bad in law and liable to be set aside.

5. The learned Additional Public Prosecutor, on the other hand, submits that the application for extension of period of detention does contain the specific reasons for which the extension of detention beyond the period of 180 days was sought for. However, he fairly submits that the said application has only been endorsed by the Public Prosecutor without there being a separate report as required under Section 36A(4) of the NDPS Act. He also fairly submits that the impugned order indicates that no opportunity of being heard was afforded to the petitioner while passing the extension order.

6. I have considered the submissions made by the learned counsel for Page No.# 5/5

both the sides and have gone through the materials available on record.

7. As held by the Apex Court in the case of " Hitendra Vishnu Thakur Vs. State of Maharashtra" (supra), a Public Prosecutor is expected to independently

apply his mind to the request of 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 supposed to act as a mere post office or a forwarding agency. However, in the instant case, exactly that has been done. The Public Prosecutor has merely forwarded the application to the Court of the learned Special Judge without filing any separate report after applying his mind and, therefore, on that count itself, the impugned order is liable to be set aside.

8. Moreover, it also appears that no opportunity of being heard was afforded to the petitioner before passing the impugned order which is also not in accordance with the principles of natural justice.

9. For aforesaid reasons, this Court is of considered opinion that the impugned order is liable to be set aside, which this Court accordingly does.

10. The order dated 14.08.2025 passed by the learned Special Judge, Nagaon in Nagaon P.S. Case No. 152/2025 is accordingly set aside.

11. This criminal revision petition is accordingly disposed of.

JUDGE

Comparing Assistant