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JASJIT SINGH BEDI, J. (ORAL) –

The present revision petition has been preferred against the order dated 06.06.2026 vide which the Judge, Special Court (Duty), Amritsar granted 15 days’ extension for the presentation of the challan in case FIR No.345 dated 12.12.2025 under Sections 21-C/29 of the NDPS Act, 1985, Police Station Gate Hakima, Amritsar and against the order dated 16.06.2026 vide which the application of the petitioner under Section 187(3) BNSS, 2023 for the grant of default bail was dismissed.

2. The brief facts of the case are that while the police party was on patrolling duty, on 12.12.2025, secret information was received against the petitioner that he was indulging in illegal arms trade. The FIR was registered and a raid was conducted. The petitioner was apprehended with a 30 bore pistol alongwith 02 live cartridges. During the course of the investigation, on the basis of his disclosure statement, 01 kg. 500 grams of heroin was also recovered and another co-accused, namely, Daljit Singh and Tilak were arrayed as accused under Section 29 of the NDPS Act. During further investigation, on the basis of the disclosure statement of Daljit Singh and Tilak, recovery of 03 kgs. of heroin was effected from public place and one Sahil Kumar @ Buta was also nominated as an accused. A copy of the FIR dated 12.12.2025 is attached as Annexure P-1 to the petition.

3. The learned Senior counsel for the petitioner contends that the petitioner was arrested on 12.12.2025. The final report/challan was to be submitted within 180 days which period was to elapse on 16.06.2026. However, unknown to the petitioner, on 06.06.2026, an application was moved under Section 36A (4) of the NDPS Act for the grant of extension of time to submit the final report. The said application was allowed on the same day i.e. 06.06.2026 and a further 15 days time was granted to file the final report. However, no notice was given to the petitioner. Consequently, when the petitioner sought the concession of default bail on 16.06.2026, the same was declined on the very same day and it was then that the petitioner became aware that the application for extension to submit the final report had been allowed on 06.06.2026. Later, the challan was submitted on 19.06.2026. He contends that the application for extension dated 06.06.2026 could not have been allowed without advance notice to the petitioner and consequently, default bail ought to be granted to him. Reliance is placed on the judgments in ‘Sanjay Kumar Kedia @ Sanjay Kedia versus Intelligence Officer, Narcotic Control Bureau and another 2010(1) RCR (Criminal) 942 and Joginder Singh Versus State of Haryana, CRR-1314-2021, decided on 11.02.2022’.

4. The learned counsel for the State, on the other hand, contends that the application for extension was moved in accordance with law on 06.06.2026 prior to the elapsing of 180 days on 16.06.2026. The said application was allowed on the same day i.e. 06.06.2026. Therefore, the Court rightly declined bail to the petitioner.

5. I have heard the learned counsel for the parties.

6. Before proceeding further, it would be apposite to refer to the relevant provisions of law. The same are enumerated hereinbelow:-

Section 36A (4) of the NDPS Act, reads as under:-

[36A. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),)-

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers)-

(i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.]

Section 187(3) of the BNSS (Section 167(2) Cr.P.C.), reads as under:-

187. Procedure when investigation cannot be completed in twenty four hours.- (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

[(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend in any custody under further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”

7. In ‘Sanjay Kumar Kedia @ Sanjay Kedia versus Intelligence Officer, Narcotic Control Bureau and another 2010(1) RCR (Criminal) 942’, the Hon’ble Supreme Court held as under:-

4. The broad facts given above have not been controverted by the respondents. Mr. Lalit, the learned counsel for the appellant has made two submissions before us :

(i) the two applications for extension dated 10th July, 2007 and 30th January, 2008 did not satisfy the conditions laid down in Section 36A (4) of Act and were without notice to the accused and as such the orders were a nullity and any extension of time beyond 180 days was, therefore, contrary to law. For this submission he has placed reliance on the case of Hitendra Vishnu Thakur and others v. State of Maharashtra and others, 1994(3) RCR (Criminal) 156 : [1994 (4) SCC 602].

(ii) that as the second extension would have ended on 2^nd February, 2008 and the appellant had filed an application for bail under Section 36A (4) of the Act on 4th February, 2008, the said application was pending for consideration before the Special Judge when the complaint had been filed on the 7th February, 2008, the subsequent act of the filing the complaint did take away the right which had accrued to the appellant on 2nd February, 2008 as had been held by this Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR (Criminal) 452 : [2001 (5) SCC 453].

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10. The maximum period of 90 days fixed under Section 167 (2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorizes a yet further period of detention which may in total go upto one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are :

(1) a report of the public prosecutor,

(2) which indicates the progress of the investigation, and

(3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and

(4) after notice to the accused.

11. The question to be noticed at this stage is as to whether the two applications for extension that had been filed by the public prosecutor seeking an extension beyond 180 days met the necessary conditions. We find that the matter need not detain us as it is no longer res integra and is completely covered by the judgment of this Court in Hitendra Vishnu's case (supra). In this case, the Bench was dealing with the proviso inserted as clause (bb) in Sub-section (4) of Section 20 of TADA, which is parimateria with the proviso to Sub-Section (4) of Section 36A  of the Act. This Court accepted the argument of the accused that an extension beyond 180 days could be granted but laid a rider that it could be so after certain conditions were satisfied. It was observed :

" It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party.

Mr. Lalit, has further contended that the two applications for extension of time could not, by any stretch of imagination, be said to be reports of the public prosecutor as envisaged under Section 36A (4) and has again referred us to the case ibidem :

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 this 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 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.

12. The court further went on to say that even if the application for extension of time was either rooted through the public prosecutor or supported by him would not make the said application a report of the public prosecutor.

13. Mr. Bhattacharjee has, however, pointed out that the applications for extension filed by the public prosecutor Section 36A (4) of the Act did satisfy the aforesaid conditions and merely because an independent report had not been tendered would not change the nature of the application. We reproduce herein the application dated 2nd August, 2007 for extension of time in extenso :

1. That, the aforesaid person was arrested on 12.02.2007 in connection with illegal distribution of psychotropic substances externally through the internet.

2. That he was produced before your honour on 12.02.2007 and thereafter he was remanded to judicial custody in Dum Dum Correctional Home.

3. That the investigation of the case is still on.

4. That a connected/related case against the associates of the present accused person is being investigated by the Drug Enforcement Administration (DEA), USA and the investigation report/collected documents are highly relevant/essential in proving the case. In this regard necessary steps, sending letters to that competent authority, has already been taken.

5. That, the Servers, Laptop, CDs etc. as seized in connection with this case, which has already been reported before Your Honour earlier, were also been sent to the Central Forensic Science Laboratory (CFSL) for deciphering the data on 20.2.07 and several reminders have been sent for obtaining the reports, but till date same could not be received. It is pertinent to mention that a letter from the end of CFSL has been received by NCB, wherein they informed that in a short time it is not possible to send the report.

6. That, considering the exigencies of the report of CFSL in proving the case against the accused person the prosecution has to pray for further extension of time.

7. That, as per the provision of Section 36A Clause (4) proviso the prosecution is submitting this petition for extension of time for filing. Complaint after completing the investigation accepting the report of the prosecution kept in the case file submitted herewith showing that the detention of the aforesaid accused is further necessary.

In the abovementioned circumstances, it is hereby prayed before your Honour that,

A further period of 6 months may kindly be given for the completion of investigation and filing of complaint. And the accused person may be remanded in judicial custody for further period.

And for this act of kindness, the petitioner as is duty bound shall ever pray.

14. A bare perusal of this application shows that it has been filed by the investigating officer of respondent No.1 and does not indicate even remotely any application of mind on the part of the public prosecutor. It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days. This application was allowed by the Special Judge on 2nd August, 2007 i.e. on the day on which it was filed which also reveals that no notice had been issued to the accused and he was not even present in Court on that day.

15. The second application dated 30th January, 2008 is even more incomprehensible. We reproduce the same hereinbelow :

IN THE COURT OF LD.JUDGE-SPECIAL COURT NDPS ACT KOLKATA AT BARASAT NORTH 24 PGS

CASE NO.N-23/2007

Union of India

Versus

Sanjay Kedia ..Accused Person

The humble petition on behalf of the prosecution.

MOST RESPECTFULLY STATES;

1. That today is the date fixed for submission of the complaint.

2. That as the prosecution is not in a position to submit the complaint today hence prays for further time for the same. Under the above circumstances it is prayed that a short date may kindly allowed for the same for ends of justice

AND

For this act of kindness shall ever pray your petitioner as is duty shall ever pray."

A bare perusal of this unsigned application would reveal that it does not even remotely satisfy the tests laid down in Vishnu Thakur's case. The Special Judge allowed this application as well on the day it was filed by a cryptic order and without notice to the accused in the following terms :

"Accd. Sanjay Kedia is produced from J/C. Accd. Filed a vakalatnama. Prosecutor files Hazira. Prosecution also files a petition praying for time. Considered prayer for time is allowed to 13.2.2008 for production of the accd & report from I.O."

16. We are, therefore, of the opinion that the extensions granted to the investigating department under the proviso to Section 36A (4) did not satisfy the conditions laid down therein and both the extensions, therefore, being contrary to law, must be struck down accordingly.

8. This Court in the case of Joginder Singh Versus State of Haryana, CRR-1314-2021, decided on 11.02.2022, held as under:-

“As regards Section 167(2) Cr.P.C., it creates an indefeasible right in an accused person, on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) Cr.P.C. is generally termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charges, where the prosecution fails to put up challan against him on completion of the investigation. Thus, in the considered view of this Court, as per Section 167(2) Cr.P.C., an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 Cr.P.C. An obligation, in such a case, is cast upon the Court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand. There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. This legal position has been very ably stated in Aslam Babalal Desai Vs. State of Maharashtra, 1993 (1) Recent Criminal Reports 600, where speaking for the majority, the Hon’ble Supreme Court referred the law laid down in Rajnikant Jivanlal Patel & another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 Supreme Court 71, wherein it was held that:-

“The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file chargesheet before the expiry of 90/96 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the magistrate has no power to remand a person beyond the stipulated period of 90/96 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bond.”

[Emphasis supplied]

9. For a proper appreciation of the facts, a tabulated chart of the relevant dates is reproduced hereinbelow:-

10. A bare perusal of Section 36A (4) of the NDPS Act and Section 187(3) BNSS (Section 167(2) Cr.P.C.) proviso (a) along with the judgments in Sanjay Kumar Kedia @ Sanjay Kedia (supra) and Joginder Singh (supra) would show that the accused gets an indefeasible right of bail on account of default by the Investigating Agency in not presenting the report under Section 173 Cr.P.C. (Section 193 BNSS) within the stipulated period. Further, before extension of time for presentation of challan is granted by the Court, notice must be issued to the accused.

11. Coming back to the facts of the present case, the FIR was registered on 12.12.2025 and the petitioner was arrested on the same day. An application for extension for completion of investigation was moved by the investigating agency on 06.06.2026. The same application was allowed on the same date and more days were given for presentation of the challan. The said order was passed without notice to the petitioner on 06.06.2026 itself. The 180 days period was to elapse on 16.06.2026. The petitioner sought the concession of bail on 16.06.2026. However, the said application was declined on the same day i.e. 16.06.2026 on the ground that extension of time for presentation of challan had already been granted. Consequently, the challan came to be submitted on 19.06.2026. Apparently, when the application for extension of time to file a challan was moved on 06.06.2026 and allowed on the same day, no notice was served upon the petitioner as is mandated in view of the judgments in Sanjay Kumar Kedia @ Sanjay Kedia (supra) and Joginder Singh (supra). Therefore, the order dated 06.06.2026 whereby extension was granted is set aside. Consequently, as the challan was to be presented by 16.06.2026, the petitioner sought default bail on 16.06.2026 which was declined on the same day and the challan was submitted later on 19.06.2026, an indefeasible right has accrued in favour of the petitioner for the grant of bail. Therefore, the order dated 16.06.2026 vide which bail was declined to the petitioner is also set aside and the petitioner is ordered to be released on bail to the satisfaction of the Trial Court/Duty Magistrate concerned.

12. The petitioner shall appear before the police station concerned on the first Monday of every month and inform in writing each time that they are not involved in any other crime other than the case(s) mentioned in this order.

13. The petitioner (or someone on his behalf) shall prepare an FDR in the sum of Rs.50,000/- and deposit the same with the Trial Court. The same would be liable to be forfeited as per law in case of the absence of the petitioners from Trial without sufficient cause.

14. This petition stands disposed of.

15. The pending application(s), if any, shall stand disposed of accordingly.

Order accordingly.

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