1 2025:CGHC:43787 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2559 of 2025 1. Ankit Singh Rajput S/o Shersingh Rajput Aged About 28 Years R/o Shitla Mandir Road, Ward No. 12, Chikhli, Police Station- City Kotwali, District Rajnandgaon, C.G. Present R/o Laxmi Nagar, Ward No. 45, Near Sai Mandir, Rajnandgaon, Police Station- Basantpur, District : Rajnandgaon (CG) ... Petitioner (In Jail) versus 1. State of Chhattisgarh Through Station House Officer Of Police Station Pulgaon, Outpost- Anjora, District : Durg, Chhattisgarh ... Respondent For Petitioner : Ms. Aditi Singhvi, Advocate For Respondent : Mr. Akhilesh Kumar, Govt. Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 28/8/2025 1. This petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) is preferred by petitioner seeking quashment of order dated 26.7.2025 passed in Special Case NDPS No.61/2025 by which learned Special Judge, NDSP, Durg rejected application of petitioner SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 filed under Section 167 (2) CrPC (now Section 187 (2) of BNSS) for grant of default bail. 2. Facts of case, in brief, are that on secret information being received by police on 23.1.2025 to the effect that two persons are coming from Rajnandgaon to Durg in white colour Activa moped bearing registration No.CG08-Z-0964 and they are transporting illegal contraband for the purpose of sale, a raid was conducted leading to arrest of petitioner and co-accused person who were alleged to be in possession of Alprojolam tablets 0.5 mg in a white colour bag. On 25.7.2025, petitioner filed an application under Section 167 (2) CrPC (Section 187 (2) of BNSS), seeking default/statutory bail. Petitioner moved an application under Section 167 (2) CrPC seeking default bail on the ground of non-filing of charge sheet within statutory period of 180 days, as prescribed under NDPS Act. Said application came to be rejected vide order impugned recording that on the application filed by Constable on behalf of Station House Officer, Police Station Anjora, vide order dated 21.7.2025 time to file charge sheet has already been extended upto 1.8.2025. 3. Learned counsel for petitioner would submit that petitioner was arrested on 24.1.2025 for alleged commission of offence punishable under Section 22 and 8A(C) of the NDPS Act. Period of 180 days prescribed under Section 36A of the 3 NDPS Act for filing charge sheet against petitioner was to expire on 23.7.2025. On 21.7.2025 the Investigating Officer moved an application praying for extension of time, which has been allowed by learned trial Court without considering provisions of Section 36A (4) of the NDPS Act which envisages that such an application should be moved through the Public Prosecutor, which has not been done in the present case. He further contended that application dated 21.7.2025 was filed behind the back of petitioner and without any notice to him and even the order dated 21.7.2025 has been passed in absence of petitioner. Petitioner was neither present in person nor through video conferencing on the date i.e. 21.7.2025, when the order was passed, extending the period of investigation upto 1.8.2025. Under these circumstances, the order granting extension of time to file charge sheet and consequent rejection of application for grant of default/statutory bail to petitioner is not sustainable and liable to be set aside. In support of her contention, she places reliance upon the decision rendered in case of SanNaser Bin Abu Bakr Yafai vs State of Maharashtra, reported in (2022) 6 SCC 308; Sanjay Kumar Kedia vs Narcotics Control Bureau, reported in (2009) 17 SCC 631 and Praveen Kumar vs State of CG, reported in 2018 SCC Online Chh 800. 4 4. Per contra, learned counsel appearing on behalf of the State opposing the submissions of learned counsel for petitioner, would argue that an application for extension of time to file charge sheet was filed before the Special Court on 21.7.2025 and vide order dated 21.7.2025 the time for filing charge sheet as well as remand of petitioner was granted upto 1.8.2025. Since time for submitting charge sheet was extended, default bail cannot be granted to petitioner on expiry of statutory period of 180 days on 23.7.2025. Hence, there is no illegality in the order passed by learned trial Court rejecting application of petitioner filed under Section 167 (2) of CrPC and petition is liable to be dismissed. 5. I have heard learned counsel for respective parties and perused the record. 6. Before delving into the matter, it will be useful to look into the relevant statutory provisions and legal precedents pertaining to issue in hand. 7. Section 167 (2) of CrPC is relevant for disposal of present case and therefore, same is reproduced as under: "167 (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 5 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 Sub-section 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 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 6 Court, shall authorise detention in the custody of the police." 8. 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) to (d) xxxxx (2) to (3) xxxx (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.” 9. In Bharatiya Nyay Surakasha Sanhita 2024, corresponding Section of Section 167 Cr.PC is Section 187, which reads thus:- “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 58, 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- 7 inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified 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, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), 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. (3) The Magistrate may authorise the detention of the accused person, 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 sub-section 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 ten years or more; (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 sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter. (4) No Magistrate shall authorise detention of the accused in custody of the police under this section 8 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 further detention in judicial custody on production of the accused either in person or through the audio-video electronic means. (5) 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. 10. A comparative study of Section 167 (2) (a) (I) of Cr.P.C and 187 (3) (i) of BNSS would show that the words used are 'for a term of not less than 10 years' and 'for a term of 10 years or more'. Thus, there is only a slight difference between the words in BNSS and Cr.P.C. 11. In case of Hitendra Vishnu Thakur v. State of Maharashtra, reported in (1994) 4 SCC 602, Hon’ble Supreme Court while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is pari materia with the proviso to sub-section (4) of Section 36A of NDPS Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice. 9 12. In case of Sanjay Kumar Kedia (supra), Hon’ble Supreme Court has held thus:- “12. 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. (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. 13.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 pari materia 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 10 be granted but laid a rider that it could be so after certain conditions were satisfied. 14. It was observed : "21….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. 15. 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 : “23….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 11 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 16.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. In case of Subhas Yadav vs State of West Bengal, reported in 2023 SCC Online Cal 313, the Full Bench of High Court of Calcutta while dealing with proviso to Section 36A (iv) of NDPS Act has observed thus:- “Conditions precedent for extension of period of detention:- 22.22. Power of the Court to extend the period of detention under proviso to section 36A(4) of the Act is based on the report of a Public Prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond 180 days. Conditions precedent for extending the period of detention are as follows:- • Report must be of the public prosecutor; • Report must record the progress of investigation and indicate specific reasons for extending the period of detention beyond 180 days. 23. An application by the investigating agency cannot be treated as a substitute for a report by the public prosecutor. A public prosecutor is an independent prosecuting officer of the State and not a part of the investigating agency. He is an independent statutory authority and a report filed by him endorsing the stance of the investigating agency with regard to the twin requirements, namely, progress of investigation and specific reasons for extension of period of detention is a sine qua non for invoking the proviso to section 36A(4) of the Act….” 13 Presence Of Accused During Consideration Of Report Of Public Prosecutor- 27.Issue whether the accused must be served with a written notice and copy of the application for extension of period of detention is no langer res integra. In Sanjay Dutt (supra) the Apex Court clarified that written notice of the prayer for extension of period of detention to the accused is not necessary. The Court held as follows:- “53. (1) xxxxx (2) (a) Section 20(4)/bh) of the TADA Act only requires production of the accused before the court in accordance with Section 167 (1) of the CPC and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further provides to Clause (DO) of Sub-section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone is sufficient for the purpose.” 30. In view of the aforesaid ratios, it can be safely concluded though a written notice and copy of the report of the public prosecutor may not be supplied to the accused, the latter is required to be produced physically 14 or through video linkage when the prayer for extension is considered he must be made aware of such consideration and wound be entitled to raise objection, if any, with regard to compliance of the mandatory requirements of law.” 14. From the above provisions of law, decisions of Hon’ble Supreme Court and Full Bench of High Court of Calcutta, it is apparent that under Section 167 CrPC maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167 (2) CrPC if he makes an application for such purpose. However, under Section 36A(4) of the Act of 1985, it is provided that maximum period of 90 days fixed under Section 167 (2) shall be construed as 180 days for several categories of offences under the Act mentioned in it. Section 36-A of NDPS Act further provides that period of detention may go on to a total of one year subject to satisfaction and compliance of stringent conditions provided therein i.e. (i) upon a report of the Public Prosecutor; (ii) which in turn indicates the progress of the investigation; (iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days; and (iv) after notice to the accused. In other words, 15 submission of a valid report of Public Prosecutor indicating progress of investigation as also disclosing specific reason for extension of time beyond 180 days is sine qua non. 15. Thus, the question which arises for consideration in present petition is whether application for extension of time filed by the investigating officer seeking extension of time beyond 180 days, fulfills necessary twin conditions envisaged under Section 36-A (4) of the NDPS Act? 16. In light of above provisions of law and judgments, if the facts of present case are examined, it is clear that there has been a non-compliance of the provisions contained in Section 36A of the NDPS Act, which mandates a report of the Public Prosecutor indicating progress of investigation as also specific and compelling reasons for seeking detention of accused beyond a period of 180 days. A bare perusal of this application dated 21.7.2025, which is placed on record by learned counsel for petitioner along with Covering Memo dated 26.8.2025, reflects that it has been filed by the Station House Officer, Police Station Anjora, District Durg and not by the Public Prosecutor. There is no report of the Public Prosecutor indicating progress of investigation and also disclosing specific reason for extension of time beyond 180 days to file charge sheet. Further a glance of order dated 21.7.2025 would show that this application was allowed on 16 the day on which it was filed without issuing notice to the accused and he was not present in the court on that day, as is discernible from the order sheet dated 21.7.2025 itself. 17. In view of above detailed discussion and bearing in mind the principles laid down in above rulings as well as provisions quoted above, in the considered opinion of this Court, the impugned order is not legally sustainable, which requires to be set aside. 18. Accordingly, the petition is allowed, petitioner succeeded in making out a case for default bail. Impugned order is set aside and it is directed that applicant shall be released on bail upon furnishing a personal bond in the sum of Rs.25,000/- with one surety in the like sum to the satisfaction of trial Court concerned on the conditions that; • he shall appear before the trial Court concerned regularly on each and every date unless exempted from appearance. • he shall not, in any manner, tamper with prosecution witnesses. • if applicant is found involved in similar offence in future, it will be open for the State to apply for cancellation of bail. Sd/- (Parth Prateem Sahu) Judge roshan/-