The petitioners, who are arraigned as accused Nos.6
and 8 in Spl. C.C. No.532/2023 pending before the Court of
XXXIII Additional City Civil and Sessions Judge and Special
Judge (NDPS), Bengaluru for the offence under Sections
8(c), 21(c), 23(c), 28 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'the NDPS
Act'), were arrested in the aforesaid case and remanded to
judicial custody on 29.05.2022. In the said proceedings, the
prosecution had filed an application under Section 36A(4) of
the NDPS Act seeking extension of time for completion of
investigation and filing the charge-sheet. The said
application was opposed by the accused. The Trial Court by
order dated 17.11.2022 allowed the said application and
extended the time by a further period of 90 days for
completion of investigation and filing the charge-sheet. The
said order is questioned by accused Nos.6 and 8 in Crl. R.P.
No.281/2023 before this Court.
7. The application under Section 36A(4) of the
NDPS Act has been produced by the petitioners and from
the perusal of the same, it is seen that the said application
was filed by the Investigating Officer and the public
prosecutor has only counter signed the same, before the
said application was submitted to the Court. A reading of the
said application would go to show that the progress made in
the investigation has not at all been indicated. The proviso to
Section 36A(4) of the NDPS Act specifically states that in the
event, if the investigation is not completed within the
specified period of 180 days, the Special Court may extend
the said period upto one year on the report of the public
prosecutor indicating the progress of investigation and
specifying the reasons for detention of the accused persons
beyond the said period of 180 days. In the present case,
there is no mention in the application about the progress of
the investigation, but only the reason for extension of time for
completion of investigation has been mentioned. Therefore,
the application filed in the present case does not fulfill the
requirement of law.
NC: 2025:KHC:7732
8. In addition to the same, undisputedly, the
application is filed by the Investigating Officer and not by the
public prosecutor and that the said application has been only
counter signed by the public prosecutor before the same was
submitted to the Court, which does not fulfill the requirement
of law.
9. The law in this regard is well settled by the
Hon'ble Supreme Court in the case of Hitendra Vishnu
Thakur Vs. State of Maharashtra reported in (1994) 4 SCC
602. Following the said judgment, the Hon'ble Apex Court in
the case of Jigar @ Jimmy Pravinchandra Adatiya, at
paragraph No.29 has observed as under:
"29. The said proviso came up for
consideration before this Court in the case of Hitendra
Vishnu Thakur. In paragraph 23 this Court held thus:
"23. We may at this stage, also on a plain
reading of clause (bb) of sub-section (4) of
Section 20, point out that the Legislature has
provided for seeking extension of time for
completion of investigation on a report of the
public prosecutor. The Legislature did not
purposely leave it to an investigating officer
to make an application for seeking extension
of time from the court. This provision is in
tune with the legislative intent to have the
investigations completed expeditiously and
not to allow an accused to be kept in
continued detention during unnecessary
prolonged investigation at the whims of the
police. The Legislature expects that the
investigation must be completed with utmost
promptitude but where it becomes necessary
to seek some more time for completion of
the investigation, the investigating agency
must submit itself to the scrutiny of the
NC: 2025:KHC:7732
public prosecutor in the first instance and
satisfy him about the progress of the
investigation and furnish reasons for
seeking further custody of an accused. 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 face 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 the specific
- 10 -
NC: 2025:KHC:7732
reasons for the detention of the accused
beyond the said period" as occurring in
clause (bb) in subsection (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.
Where either no report as is envisaged by
clause (bb) is filed or the report filed by the
public prosecutor is not accepted by the
Designated Court, since the grant of extension
of time under clause (bb) is neither a formality
nor automatic, the necessary corollary would be
that an accused would be entitled to seek bail
and the court 'shall' release him on bail if he
furnishes bail as required by the Designated
Court. It is not merely the question of form in
which the request for extension under clause
(bb) is made but one of substance. The
contents of the report to be submitted by the
public prosecutor, after proper application of
his mind, are designed to assist the
Designated Court to independently decide
whether or not extension should be granted
in a given case. Keeping in view the
consequences of the grant of extension i.e.
keeping an accused in further custody, the
Designated Court must be satisfied for the
justification, from the report of the public
prosecutor, to grant extension of time to
complete the investigation.
Where the Designated Court declines
to grant such an extension, the right to be
released on bail on account of the 'default' of
- 11 -
NC: 2025:KHC:7732
the prosecution becomes indefeasible and
cannot be defeated by reasons other than
those contemplated by sub-section (4) of
Section 20 as discussed in the earlier part of
this judgment. We are unable to agree with Mr.
Madhava Reddy or the Additional Solicitor
General Mr. Tulsi that even if the public
prosecutor 'presents' the request of the
investigating officer to the court or 'forwards' the
request of the investigating officer to the court, it
should be construed to be the report of the
public prosecutor. There is no scope for such a
construction when we are dealing with the liberty
of a citizen. The courts are expected to
zealously safeguard his liberty. Clause (bb) has
to be rea1d and interpreted on its plain language
without addition or substitution of any expression
in it. We have already dealt with the
importance of the report of the public
prosecutor and emphasised that he is
neither a 'post office' of the investigating
agency nor its 'forwarding agency' but is
charged with a statutory duty. He must apply
his mind to the facts and circumstances of
the case and his report must disclose on the
face of it that he had applied his mind to the
twin conditions contained in clause (bb) of
sub-section (4) of Section 20. Since the law
requires him to submit the report as
envisaged by the section, he must act in the
manner as provided by the section and in no
other manner. A Designated Court which
overlooks and ignores the requirements of a
valid report fails in the performance of one of
its essential duties and renders its order
under clause (bb) vulnerable. Whether the
public prosecutor labels his report as a report or
as an application for extension, would not be of
much consequence so long as it demonstrates
on the face of it that he has applied his mind and
is satisfied with the progress of the investigation
and the genuineness of the reasons for grant of
extension to keep an accused in further custody
as envisaged by clause (bb) (supra). Even the
- 12 -
NC: 2025:KHC:7732
mere reproduction of the application or request
of the investigating officer by the public
prosecutor in his report, without demonstration
of the application of his mind and recording his
own satisfaction, would not render his report as
the one envisaged by clause (bb) and it would
not be a proper report to seek extension of time.
In the absence of an appropriate report the
Designated Court would have no jurisdiction to
deny to an accused his indefeasible right to be
released on bail on account of the default of the
prosecution to file the challan within the
prescribed time if an accused seeks and is
prepared to furnish the bail bonds as directed by
the court. Moreover, no extension can be
granted to keep an accused in custody
beyond the prescribed period except to
enable the investigation to be completed and
as already stated before any extension is
granted under clause (bb), the accused must
be put on notice and permitted to have his
say so as to be able to object to the grant of
extension."
[emphasis added]
10. The law laid down by the Hon'ble Supreme
Court in the case of Hitendra Vishnu Thakur is also
reiterated by the Hon'ble Supreme Court in the case of
Sanjay Kumar Kedia @ Sanjay Kedia.
11. This Court in W.P. No.11763/2021, in the case
of Marcel Kuyo at paragraph No.10, has observed as under:
"10. Perusal of the said application filed
by the prosecution under Section 36A(4) of the
NDPS Act which is made available to this Court
goes to show that the application is not
accompanied by the report of the Public
Prosecutor. The proviso to Section 36A(4) of the
NDPS Act would make it very clear that the
application seeking extension of time has to be
filed by the Prosecutor supported by the report
- 13 -
NC: 2025:KHC:7732
of the Public Prosecutor indicating the progress
of the investigation and the specific reasons for
the detention of the accused beyond the period
of 180 days. Unless compelling reasons are
made out, the trial Court cannot casually extend
the time provided by the statute to complete the
investigation. The Public Prosecutor on the
basis of the records submitted by the
Investigating Officer is required to independently
apply his mind and prepare a report with regard
to status of the investigation and he is also
required to make out a case of compelling
reasons for extension of time to complete the
investigation."
12. In the present case, the application filed under
Section 36A(4) of the NDPS Act seeking extension of time
cannot be said to have been filed in compliance with the
requirements of law laid down in the above referred cases.
13. Under the circumstances, the Trial Court was
not justified in allowing the application filed by the
prosecution under Section 36A(4) of the NDPS Act and
therefore, the said order cannot be sustained.
14. Undisputedly, the charge-sheet in the present
case has not been filed within the stipulated period of 180
days from the date the petitioners were remanded to the
judicial custody. The extension of time by the trial Court
under Section 36(A)(4) for completion of investigation and
filing charge sheet is held to be bad for the reasons
aforesaid. Under the circumstances, the order passed by
the Trial Court rejecting the application filed by the
petitioners under Section 167 (2) of Cr.P.C. is required to be
set-aside and consequently, the petitioners/accused Nos.6
- 14 -
NC: 2025:KHC:7732
and 8 are granted for statutory bail under Section 167 (2) of
Cr.P.C. subject to conditions. Accordingly, the following:
ORDER
i. The criminal revision petitions are allowed.
ii. Order dated 17.11.2022 passed by the XXXIII
Additional City Civil and Sessions Judge and
Special Judge (NDPS), Bengaluru in Spl. C.C.
No.532/2023 on the application filed by the
prosecution under Section 36A(4) of the NDPS
Act seeking extension of time for competition of
investigation and filing the charge-sheet is set-
aside and consequently, the said application
stands rejected.
iii. Order dated 03.03.2023 passed by the XXXIII
Additional City Civil and Sessions Judge and
Special Judge (NDPS), Bengaluru in Spl. C.C.
No.532/2023 on the application filed by the
petitioners under Section 167 (2) of Cr.P.C. is set-
aside and consequently, the said application
stands allowed.
iv. The petitioners shall execute personal bond for a
sum of Rs.2,00,000/- (Rupees Two Lakh only)
each, with two sureties for the likesum to the
satisfaction of the trial Court.
v. The petitioners are directed to surrender their
passports before the Trial Court and they shall not
- 15 -
NC: 2025:KHC:7732
leave the jurisdiction of the Trial Court without
prior permission of the said Court.
vi. The petitioners shall appear before the Trial Court
on every date of hearing unless the Trial Court
dispenses their presence for valid reasons.
vii. The petitioners shall not tamper with the
prosecution witness either directly or indirectly.
7. So also, accused No.5 approached this Court in
W.P.No.21572/2023 (Annexure-K), which was also allowed by this
Court vide order dated 10.11.2023, by holding as under:
1. The petitioner is sought to be prosecuted for the
offences punishable under Sections 8(c), 21(c), 23(c), 28
and 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short 'the NDPS Act').
2. The case of the prosecution is that, on receiving the
secret and reliable information by the Officer concerned
that, one luggage bag containing Narcotics drugs was
stranded by a female passenger, an Indian National,
traveling from Nairobi to Bengaluru via Dubai was sent by
the concerned Airlines through Emirates flight and as per
the information, the respondent arrived at Kempegowda
International Airport and intercepted accused No.1, while
she was collecting the baggage and after following due
procedure, 07 Kgs of Heroin was seized from the said bag
along the accused No.2 No.2 who was accompanying with
the accused No.1 was apprehended. On interrogation
- 16 -
NC: 2025:KHC:7732
accused No.2 also stated that one luggage bag containing
drugs had reached Bengaluru on 23.05.2022. During the
course of investigation, accused No.4 was apprehended
and in his confession statement, he has stated that the
Heroin seized from the accused Nos.1 and 2 was meant to
be delivered to accused No.5. Accused No.5 was arrested
on 28.05.2022. The respondent was required to file the
charge sheet within 180 days as stated under Section
36(A)(iv) of the NDPS Act.
3. The charge sheet having not been submitted, the
Investigating Officer filed an application for extension of
time for concluding the investigation and submitting the
charge sheet. The said application was allowed by the Trial
Court and the same was challenged by accused Nos.6 to 8
before this Court in Crl.R.P.No.281/2023 connected with
282/2023. This Court by order dated 05.04.2023 quashed
the order passed by the Trial Court extending the time for
submitting the charge sheet and consequently, accused
Nos.6 and 8 were granted statutory bail. The petitioner filed
an application for granting statutory bail. The Trial Court
dismissed the application, stating that the time for
submitting the final report was extended and also the Mail
was sent informing the petitioner the filing of the application
by the Investigating Officer for extension of time.
4. Heard the learned counsel for the petitioner and
learned counsel for the respondent - NCB.
5. Perusal of the order dated 05.04.2023 passed by this
Court in Crl.R.P.No.281/2023 and the connected petitions
- 17 -
NC: 2025:KHC:7732
indicated that the charge sheet was not filed within the
stipulated period of 180 days from the date the petitioners
therein were remanded to judicial custody and the order
passed by the Trial Court extending the time for completion
of the investigation and filing the charge sheet was held to
be bad for the reasons stated therein. Accused Nos.6 and
8 having been enlarged on statutory bail, this petitioner is
also entitled for the said benefit, to maintain the parity since
the charge sheet is not submitted within 180 days from the
date on which the petitioner was remanded to judicial
custody. Accordingly, I proceed to pass the following;
ORDER
The petition is allowed. The order dated 01.08.2023
passed by the XXXIII Additional City and Sessions Judge
and Special Judge, NDPS, Bengaluru in
SPl.C.C.No.532/2023, (NCB F.No.48/1/13/2022/BZU) is
hereby set-aside and, the application filed by the petitioner
under Section 167(2) of Cr.P.C is allowed and the petitioner
is enlarged on statutory bail, subject to the following
conditions;
i. The petitioner shall execute a personal bond for a
sum of Rs.2,00,000/- (Rupees Two Lakh only), with
two sureties for the likesum to the satisfaction of the
trial Court.
ii. The petitioner is directed to surrender his passport
before the Trial Court and he shall not leave the
jurisdiction of the Trial Court without prior permission
of the said Court.
- 18 -
NC: 2025:KHC:7732
iii. The petitioner shall appear before the Trial Court on
every date of hearing unless the Trial Court dispenses
his presence for valid reasons.
iv. The petitioner shall not tamper with the prosecution
witness either directly or indirectly."
8. The aforesaid facts and undisputed material on record
will indicate that the applications for default statutory bail were
rejected by the Trial Court qua accused Nos.5, 6 and 8, but the
same were allowed by this Court vide aforesaid orders, which has
attained finality and have become conclusive and binding upon the
parties. As such, the petitioner being identical/similarly situated to
accused Nos.5, 6 and 8, by invoking and applying the doctrine of
parity and by adopting a justice oriented approach, the impugned
order deserves to be set aside.
9. A perusal of the impugned order passed by the Trial
Court rejecting the application filed by the petitioner will clearly
indicate that the Trial Court rejected the application solely on the
ground that the petitioner has approached the Court belatedly. In
fact, despite referring to the orders passed by this Court, strictly the
Trial Court did not chose to apply the same to the petitioner herein
without indicating as to why the said orders were not applicable to
- 19 -
NC: 2025:KHC:7732
the petitioner herein. Under these circumstances, the impugned
order passed by the Trial Court is clearly perverse, erroneous and
without application of mind and the same warrants interference by
this Court in the present petition. .
10. Accordingly, I pass the following:
ORDER
(i) The petition is allowed.
(ii) The impugned order dated 01.02.2025 passed in
Spl.C.C.No.532/2023 by the XXXIII Additional
City Civil and Sessions Judge & Special Judge
(NDPS), Bengaluru, is hereby set aside.
(iii) The application filed by the petitioner under
Section 167(2) of Cr.P.C., is allowed.
(iv) The respondent and the concerned police / jail
authorities are directed to release the petitioner
on statutory bail, subject to the following
conditions:
(a) The petitioner shall execute a personal bond
for a sum of Rs.2,00,000/- (Rupees Two Lakh
only), with two sureties for the likesum to the
satisfaction of the Trial Court.
- 20 -
NC: 2025:KHC:7732
b) The petitioner is directed to surrender his
passport before the Trial Court and she shall
not leave the jurisdiction of the Trial Court
without prior permission of the said Court.
c) The petitioner shall appear before the Trial
Court on every date of hearing unless the Trial
Court dispenses her presence of valid
reasons.
d) The petitioner shall not tamper with the
prosecution witness either directly or indirectly.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC
