Madras High Court
Dhanush vs The State Represented By on 27 February, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1491 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.02.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1491 of 2024
Dhanush ... Petitioner
Vs.
The State represented by
The Inspector of Police,
H8 Thiruvottiyur Police Station,
Chennai. ... Respondent
PRAYER: Criminal Revision Petition filed under Section 438 of BNSS to
set aside the order of dismissal passed by the learned Principal Special Judge
under EC & NDPS Act at Chennai in the petition filed under Section 187 of
BNSS in Crl.M.P.No.7867 of 2024 in Crime No.57 of 2024 on the file of the
respondent and enlarge the petitioner on bail.
For Petitioner : Mr.M.Soundar Vijay Arul Ram
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
1/17
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1491 of 2024
ORDER
This Criminal Revision Case has been filed by Accused No.6 seeking
to set aside the order dated 24.07.2024 in Crl.M.P.No.7867 of 2024.
2.Since the issue under consideration pertains to the grant of relief
under statutory bail, the relevant facts of the case alone discussed for
consideration of the above prayer.
3.The petitioner was arrested on 20.01.2024 along with other accused
for illegal possession of 4.620 kgs. of Methamphetamine and 1.425 kgs. of
Abin, both of which are of commercial quantity, and was remanded to
judicial custody on 20.01.2024 for offences under Section 8(c) read with
Section 18(b), 22(c), 25, and 29(1) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 [hereinafter referred to as ''the NDPS Act'']. They filed
statutory bail petitions in Crl.M.P.No.7867 of 2024 on 17.07.2024, i.e., on
the 181st day. The Special Public Prosecutor filed a petition in
Crl.M.P.No.7549 of 2024 for extension period to complete investigation
under Section 36-A(4) of the NDPS Act on 11.07.2024, and the statutory
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bail petition was dismissed on 24.07.2024, and extension period to complete
investigation was granted. Challenging the same, the above Criminal
Revision Case has been filed.
4.The contention of the learned counsel for the petitioner is that the
petitioner filed statutory bail petition on 17.07.2024. The respondent had
filed a petition in Crl.M.P.No.7549 of 2024 for extension period to complete
investigation; however, no notice was served to the petitioner immediately.
According to the learned counsel for the petitioner, for the 182nd day, the
notice was served on 19.07.2024, which is a clear violation of the conditions
stipulated by the Hon'ble Apex Court in Jigar @ Jimmy Pravinchandra
Adatiya vs State of Gujarat reported in CDJ 2022 SC 1043 : 2022 SCC
OnLine SC 1290, which has been reiterated in Judgebir Singh @ Jasbir
Singh Samra @ Jasbir and others vs. National Investigation Agency
reported in 2023 SCC OnLine SC 543. The Hon'ble Apex Court, after
considering previous judgments, set forth guidelines in this regard. In this
case, the Hon'ble Apex Court, referring the judgments of the Constitution
Bench in Sanjay Dutt vs. State reported in (1994) 5 SCC 410, as well as
the judgments in Uday Mohanlal Acharya vs. State of Maharashtra
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reported in (2001) 5 SCC 453; Suresh Kumar Bhikamchand Jain vs.
State of Maharashtra reported in (2013) 3 SCC 77; and M.Ravindran vs.
Intelligence Officer, Directorate of Revenue Intelligence reported in
(2021) 2 SCC 485, held that filing of a charge sheet is sufficient compliance
with the provisions of Section 167 of the Cr.P.C. Further, the Hon'ble Apex
Court held that an accused does not have an indefeasible right to be released
on statutory/default bail under Section 167(2) of the Cr.P.C., simply because
cognizance has not been taken before the expiry of the statutory time period
after filing the charge sheet.
5.Further, the learned counsel for the petitioner, referring to Paragraph
76 of the Judgebir Singh's case [cited supra], submitted that an important
principle has been highlighted, affirming that the law is now well settled the
accused must be given an opportunity of hearing before the time for
investigation is extended. It also held that the Courts could not have ruled
that the extension period petition should be considered only after the
statutory bail petition was decided, as this approach contradicts the well-
established position of law. Further, it was emphasized that if the
Investigating Agency seeks an extension, they must ensure that such a
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request is not made at the last moment.
6.The learned counsel for the petitioner further relied on the orders
passed by this Court in Crl.R.C.No.924 of 2023, dated 22.06.2023 [Ajith
vs. State] and Crl.R.C.No.2122 of 2023, dated 08.02.2024 [Grant Victor
Ikenna vs. State]. In these cases, this Court referred to the guidelines and
set aside the dismissal of statutory bail petition where the trial Court had
delayed consideration of the bail petition and then dismissed the statutory
bail petition, citing extension period to complete investigation under Section
36-A(4) of the NDPS Act had been granted, but at a later point of time.
7.The learned counsel for the petitioner further submitted that the
Hon'ble Apex Court, in the case of Jigar @ Jimmy Pravinchandra
Adatiya vs State of Gujarat reported in CDJ 2022 SC 1043 : 2022 SCC
OnLine SC 1290, extensively considered its previous judgments and the
provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA Act), the Prevention of Terrorism Act, 2002 (POTA Act), and the
Unlawful Activities (Prevention) Act, 1967 (UAPA Act), which are similar
to Section 36-A(4) of the NDPS Act. The Hon'ble Apex Court held that it is
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mandatory to produce the accused and inform about petition seeking
extension period to complete the investigation. Further, the investigation
report must meet the twin requirements for extension, and unless these
requirements are fully satisfied, the extension cannot be granted as a matter
of routine. The Hon'ble Apex Court also emphasized that granting extension
period to complete investigation results in the deprivation of the accused's
indefeasible right to claim default bail which is a constitutional guarantee.
8.The learned counsel for the petitioner further submitted that a Full
Bench of the Calcutta High Court in Subhas Yadav vs. State of West
Bengal reported in 2023 SCC OnLine Cal 313, considered the provisions
of Section 36-A(4) of the NDPS Act in conjunction with Section 167(2) of
Cr.P.C. and issued guidelines. These guidelines followed by this Court in
Varun and others vs. State reported in 2024 SCC OnLine Mad 162 and
directions have been issued to all Principal District Judges across Tamil
Nadu handling NDPS Act cases. Despite these precedents and guidelines,
the trial Court did not follow the prescribed conditions. The right of the
accused is a constitutional one, which cannot be infringed upon, and the
procedure is mandatory.
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9.The learned counsel submitted that merely awaiting the Forensic
Science Laboratory (FSL) report should not be the sole reason to seek an
extension period to complete the investigation. Further, any petition under
Section 36-A(4) of the NDPS Act should be decided without undue delay,
preferably within seven days from the filing of the petition. The Special
Public Prosecutor's report seeking an extension must be served upon the
accused or their counsel, and the accused should be present, either
personally or through video link, at the time of Court's consideration of the
petition.
10.The learned counsel further submitted that this Court, following
the decision in Varun's case [cited supra], in a batch of cases in
Crl.R.C.Nos.1847, 1885, 1849 and 2002 of 2024 [Mohamed Asaruthin
vs. The State], this Court, by order dated 27.11.2024, held that if an
extension petition is filed and is pending when the statutory period for filing
the final report expires, the trial Court must follow the directions issued by
the Hon'ble Apex Court and consider the extension period petition and the
bail petition together. The trial Court must consider the extension period
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petition as expeditiously as possible, and in any case, within seven days of
receiving the petition. Furthermore, the investigating agency is required to
file the extension period petition well in advance, at least 14 days before the
expiry of the statutory period, so that, the trial Court can consider it before
the statutory period ends. This would also allow the accused the opportunity
to challenge the order if they feel aggrieved. There would thus be no need to
consider the extension period petition together with the statutory bail
petition. However, in extraordinary circumstances, the extension period
petition may be filed within the last 14 days before the statutory period
expires.
11.The learned counsel submitted that the indefeasible right
guaranteed under Article 21 of the Constitution of India cannot be infringed
by filing an extension period petition at the last minute. Delays in serving
the notice would unfairly infringe the statutory right and deny the
indefeasible right that accrues to the petitioner.
12.The learned Additional Public Prosecutor submitted that the
accused was arrested on 20.01.2024, and upon his arrest, contraband of
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commercial quantity was seized. Since the investigation could not be
completed within 180 days of their remand, the prosecution filed a petition
in Crl.M.P.No.7549 of 2024 for extension period to complete investigation
on 11.07.2024, i.e., on the 175th day.
13.The learned Additional Public Prosecutor further submitted that the
contraband seized from the accused is of commercial quantity, and the lab
report yet to be received. Further, the source of the contraband, details of
money transfers, and bank statements need to be collected, and the role of
the other accused must be thoroughly investigated. The learned Additional
Public Prosecutor also submitted that the final report was filed in this case
on 15.07.2024 through e-filing.
14.At this juncture, the learned counsel for the petitioner submitted
that the respondent Police in a hurried manner, without the lab report filed
the final report. The learned counsel produced the e-filing status report of
the case, which shows that the charge sheet was filed before the Special
Court for EC and NDPS Act cases, Chennai. The learned Principal Special
Judge, EC and NDPS Act Cases, Chennai, took cognizance of the charge
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sheet in C.C.No.8817/2024 on 23.07.2024, and not on 15.07.2024 as
recorded in the impugned order. If the trial Court's recording of 15.07.2024
is correct, there would have been no need to pass the order on 24.07.2024,
justifying the grant of extension of period to complete investigation.
16.Considering the above submissions and on perusal of the materials,
it is evident that the Hon'ble Apex Court, in the case of Judgebir Singh
[cited supra], following the decision in Jigar @ Jimmy [cited supra], held
that the accused must be given an opportunity to be heard before granting
extended period to complete investigation. The Hon'ble Apex Court further
held, it is incorrect for Courts to withhold consideration of statutory bail
petition merely because the petition for extension period to complete
investigation is pending. Such a delay is contrary to the well-established
position of law. The investigating agency, when seeking an extension, must
ensure that such requests are not made at the last moment.
16.In Jigar @ Jimmy's case [cited supra], the Hon'ble Apex Court
referred to its previous rulings, including that of Constitution Bench,
examined the relevant provisions of the TADA, POTA and UAPA Acts,
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which are analogous to Section 36-A(4) of the NDPS Act. These provisions
impose specific restrictions and confer certain rights to the investigating
agency. After detailed consideration, the Hon'ble Apex Court concluded that
Section 167(2) of the Cr.P.C. sets an outer time limit for remanding an
accused, proportionate to the seriousness of the alleged offence. If the
investigation is not completed within prescribed time, the accused is entitled
to default bail as a matter of right, which is a constitutional right.
17.The timeline set under sub-section (2) of Section 167 of the
Cr.P.C. ensures that investigating officers are compelled to act promptly and
efficiently, preventing misuse of further remand periods. The Hon'ble Apex
Court further held that sub-section (2) of Section 167 of Cr.P.C. is
intrinsically linked to the constitutional guarantee under Article 21 of the
Constitution of India, which safeguards personal liberty against unlawful
and arbitrary detention.
18.Furthermore, it emphasized that the report of the Special Public
Prosecutor seeking extension period to complete investigation under Section
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36-A(4) of the NDPS Act is not a mere formality but a crucial document, as
its acceptance directly affects the liberty of the accused. The report must
therefore strictly adhere to the legal requirements. Specifically, it must
include:
(a) A detailed account of the progress of the investigation, and
(b) Specific reasons justifying the need for continuing the detention of
the accused beyond the 180-day period.
Thus, the request for granting extension period to complete investigation is
not a mere procedural formality.
19.As far as the service of notice regarding the petition for extension
period to complete investigation is concerned, it is not necessary for the
accused to receive a written notice with the reasons stated, suffice for the
Court to inform the accused that the extension of the investigation period is
under consideration, ensuring accused is put on notice and given an
opportunity to object to the request for an extension.
20.It is mandatory for the accused to be produced before the Court
when considering the petition for extension period to complete investigation.
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The accused must be informed that the issue of extending the investigation
period is being considered. If the accused is not given an opportunity to be
heard, the requirement to produce the accused becomes a mere formality and
loses its legal significance.
21.The Hon'ble Apex Court further held that granting an extension
period for completing investigation directly impacts the accused's
indefeasible right to default bail. Therefore, the issuance of notice is not a
mere procedural formality. The procedures outlined in Article 21 of the
Constitution of India, which protects personal liberty, must be followed,
ensuring that the process is fair and reasonable. Failing to produce the
accused before the Court, either physically or virtually, and failing to inform
them of the Special Public Prosecutor's petition for an extension period,
constitutes more than a procedural irregularity, it is a serious violation of the
accused's rights under Article 21 of the Constitution of India.
22.Such a failure is not just an error; it constitutes a gross illegality
that infringes upon the constitutional protection guaranteed to the accused.
Therefore, the prejudice is presumed and does not need to be demonstrated
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by the accused. Further, the Hon'ble Apex Court mandated that the Public
Prosecutor must file a report at least a week before the statutory period
expires, allowing the accused sufficient time to know the contents and
oppose the extension if they wish to do so under the law.
23.In this case, the notice was admittedly served on the 183rd day, on
19.07.2024. This clearly constitutes a violation of the mandatory
requirement, as the accused's right under Article 21 of the Constitution of
India has been denied. Considering the facts of the cases, the grant of
extension period to complete investigation without adhering to the
procedural safeguards established by the Constitution Bench and various
decisions of the Hon'ble Apex Court, has deprived the accused of their right
to seek default bail, leading to a failure of justice. Hence, the decision to
grant an extension period for completing the investigation is improper and
vitiated.
24.In view of the above, this Criminal Revision Case stands allowed
and the impugned order dated 24.07.2024, is set aside and the petitioner is
entitled to statutory bail with the following conditions:-
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(i) The petitioner shall execute a bond for a sum of
Rs.10,000/- (Rupees ten thousand only), with two sureties, each for
a like sum to the satisfaction of the learned Judicial Magistrate,
Tiruvottiyur;
(ii) The petitioner and the sureties shall affix their
photographs and Left Thumb Impression in the surety bond and the
Trial Court may obtain a copy of their Aadhar Card or Bank Pass
Book and mobile numbers to ensure their identity; and
(iii) The petitioner shall appear before the trial Court on the
first working day of every month at 10.30 a.m until further orders
and if he is not able to appear before the trial Court on any day, he
shall make arrangements to file an application under Section 317
Cr.P.C. and shall appear before the trial Court on any other day in
lieu of the date of his absence, as directed by the trial Court.
27.02.2025
Index:Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation: Yes/No
cse
Note: Issue Order Copy on 28.02.2025.
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To
1.The Inspector of Police,
H8 Thiruvottiyur Police Station,
Chennai.
2.The Principal Special Judge
under EC & NDPS Act,
Chennai.
3.The Superintendent,
Central Prison,
Puzhal – II.
4.The Public Prosecutor,
High Court, Madras.
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M.NIRMAL KUMAR, J.
cse
27.02.2025
https://www.mhc.tn.gov.in/judis
