Madras High Court
Deepak Raj @ Deepak vs The State on 31 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1527 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 23.10.2024
Pronounced On 31.01.2025
CORAM
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1527 of 2024
Deepak Raj @ Deepak ... Petitioner
Vs.
The State,
Rep. by the Inspector of Police,
T-7, Otteri Police Station,
Chennai.
(Crime No.37 of 2024) ... Respondent
Prayer:- Criminal Revision filed under Section 438 read with Section 442
of the Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records
and set aside the order dated 27.08.2024 of the learned Principal Special
Judge under EC and NDPS Act, Chennai, passed in Crl.M.P.No.9112 of
2024, and enlarge the petitioner on bail in Crime No.37 of 2024, pending
on the file of the respondent.
For Petitioner : Mr.D.Padmanabhan
For Respondent : Mr.Hasan Mohammed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Addl.Public Prosecutor
_____________
https://www.mhc.tn.gov.in/judis
Page No.1 of 17
Crl.R.C.No.1527 of 2024
ORDER
This Criminal Revision Case has been filed by Deepak Raj @
Deepak [A1] in Crime No.37 of 2024, seeking to set aside the dismissal
order passed by the learned Principal Special Judge under the EC and
NDPS Act at Chennai, dated 27.08.2024, in Crl.M.P.No.9112 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 learned counsel for the petitioner submitted that the
petitioner was arrested by the respondent police on 21.02.2024 for
offences under Section 8(c) read with Section 22(c) and 29(1) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter
referred to as ''the NDPS Act'']. The petitioner filed a statutory bail
petition on 19.08.2024, which was dismissed on the grounds that the trial
Court had granted extension period to complete investigation in
Crl.M.P.No.9020 of 2024 on 23.08.2024, allowing a further two-month
period.
_____________
https://www.mhc.tn.gov.in/judis
4. The learned counsel for the petitioner submitted that no notice
was served to the petitioner. However, it is recorded that the petitioner
was produced before the Court, where the notice was served, and he was
explained the contents of the notice.
5. In support of his contention, the learned counsel for the petitioner
has produced the details of the case status from eCourts website, dated
19.08.2024, which records that the petitioner was produced in person on
that date. On the same day, the notice informing the petitioner about the
petition filed under Section 36-A(4) of the NDPS Act was explained to
him. The case was then adjourned to 20.08.2024 for filing the counter,
and without giving the petitioner an opportunity to be heard, the extension
period to complete investigation was granted on 27.08.2024.
6. The learned counsel for the petitioner relied on the principles
established in the case of Judgebir Singh @ Jasbir Singh Samra @
Jasbir and others vs. National Investigation Agency reported in 2023
_____________
https://www.mhc.tn.gov.in/judis
SCC OnLine SC 543. 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 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.
7. 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
_____________
https://www.mhc.tn.gov.in/judis
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 request is not made at the last moment.
8. 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.
9. 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)
_____________
https://www.mhc.tn.gov.in/judis
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 mandatory to produce the accused and inform about
petition seeking extension period to complete 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.
10. Further, the learned counsel relied on the decision of the Full
Bench of the Calcutta High Court in Subhas Yadav vs. The State of
West Bengal reported in 2023 SCC OnLine Cal 313 and submitted that
the Full Bench of the Calcutta High Court had provided eight guidelines
on how petitions arising under Section 36-A(4) of the NDPS Act and
Section 167(2) of the Cr.P.C. should be considered, and issued directions
accordingly.
11. The learned counsel submitted that any petition under Section
_____________
https://www.mhc.tn.gov.in/judis
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.
12. The learned counsel further submitted that this Court, in the
case of Varun and others vs. State reported in 2024 SCC OnLine Mad
162, issued directions to the Special Court under the NDPS Act to adhere
to these guidelines and circulated the order to all Principal District Judges
across Tamil Nadu. 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 petition as expeditiously as possible,
_____________
https://www.mhc.tn.gov.in/judis
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.
13. 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.
14. In the present case, the petitioner was arrested on 21.02.2024,
and the 180th day for filing the charge sheet was completed on 19.08.2024.
However, the extension petition under Section 36-A(4) of the NDPS Act
was filed on 12.08.2024, i.e., on the 173rd day, which clearly violates the
_____________
https://www.mhc.tn.gov.in/judis
guidelines set by this Court in Varun's case [cited supra], which have
been consistently followed. Furthermore, in this case, the notice was
served on 19.08.2024 i.e., on the 180th day, depriving the petitioner of his
mandatory right to be present, informed, and heard.
15. The learned Additional Public Prosecutor filed a counter
affidavit detailing the registration of the case, the arrest of the accused,
the seizure of contraband, which is of commercial quantity, the arrest of
co-accused, trail of financial dealings and other aspects of the
investigation.
16. The learned Additional Public Prosecutor, referring to the
decisions in Rambeer Shokeen vs. State [NCT of Delhi] reported in
(2018) 4 SCC 405 and M.Ravindran's case [cited supra], submitted that
once the extension period petition has been filed, the petitioner cannot
seek or avail the statutory bail under Section 167(2) of the Cr.P.C. The
learned Additional Public Prosecutor further submitted that the accused
was arrested on 21.02.2024 and the 180th day fell on 19.08.2024. On
12.08.2024, the extension period petition was filed on the 173rd day, and
_____________
https://www.mhc.tn.gov.in/judis
notice was served on 19.08.2024 on 180th day. The trial Court allowed the
extension period petition and rightly dismissed the statutory bail petition,
hence, the learned Additional Public Prosecutor sought for dismissal of
the Criminal Revision Case.
17. 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.
18. In Jigar @ Jimmy's case [cited supra], the Hon'ble Apex Court
referred to its previous rulings, including that of Constitution Bench,
_____________
https://www.mhc.tn.gov.in/judis
examined the relevant provisions of the TADA, POTA and UAPA Acts,
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.
19. 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.
20. Furthermore, it emphasized that the report of the Special Public
_____________
https://www.mhc.tn.gov.in/judis
Prosecutor seeking extension period to complete investigation under
Section 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.
21. As far as the service of notice regarding the petition for
extension period to complete the 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.
22. It is mandatory for the accused to be produced before the Court
when considering the petition for extension period to complete the
_____________
https://www.mhc.tn.gov.in/judis
investigation. 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.
23. The Hon'ble Apex Court further held that granting extension
period to complete 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 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.
24. Such a failure is not just an error; it constitutes a gross illegality
that infringes upon the constitutional protection guaranteed to the
_____________
https://www.mhc.tn.gov.in/judis
accused. Therefore, the prejudice is presumed and does not need to be
demonstrated 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.
25. In this case, the notice was admittedly served on the 180 th day,
on 19.08.2024. 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 this case, the grant of
extension period to complete investigation without adhering to the
procedural safeguards established by the Constitution Bench and the
decisions of the Hon'ble Apex Court, has deprived the accused of his right
to seek default bail, leading to a failure of justice. Hence, the decision to
grant extension period for completing the investigation is improper and
vitiated.
26. In view of the above, this Criminal Revision Case stands
allowed and the impugned order dated 27.08.2024, is set aside and the
_____________
https://www.mhc.tn.gov.in/judis
petitioner is entitled to statutory bail with the following conditions:-
(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 Principal Special
Judge, Principal Special Court under EC & NDPS Act cases,
Chennai;
(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.
Index : Yes/ No 31.01.2025
Neutral Citation: Yes / No
Speaking Order / Non-Speaking Order
smn2
To
_____________
https://www.mhc.tn.gov.in/judis
1.The Principal Special Judge,
Special Court for EC and NDPS Act cases,
Chennai.
2.The Inspector of Police,
T-7, Otteri Police Station,
Chennai.
3.The Public Prosecutor,
High Court,
Madras.
_____________
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
smn2 / vv2
Pre-delivery order in
31.01.2025
_____________
https://www.mhc.tn.gov.in/judis
