Sub-section (4) of section 36-A of the N.D.P.S. The act does not specifically provide for the issuance of notice to the accused on the report of the Public Prosecutor before granting the extension, but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. The judgment was passed by The High Court of Orissa in the case of Naresh Digal V. The State of Odisha [BLAPL No. 4652 of 2020] by a Single Bench consisting of Hon’ble Shri Justice S.K. Sahoo.
This is an application for bail under section 439 of Cr.P.C. pending in the Court of learned Special, Balliguda for alleged commission of offences under sections 20(b)(ii)(C), 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Learned Counsel for the petitioner contended that since the copy of such extension petition was served to the learned defence counsel and the extension order was also passed on the very same day, the accused did not get a fair opportunity to have his say and to oppose the extension sought for by the prosecution and in all fairness of things, the learned Special Judge should have given some reasonable time to the learned defence counsel to obtain instruction from the petitioner who was in jail and file his objection, if any, to such extension petition and only thereafter on hearing the learned counsel for both the sides, the Court could have passed any order either allowing or rejecting the prayer for extension in accordance with the law.
Learned Counsel for the respondent, on the other hand, produced the case diary and submitted that since the copy of the extension application was served to the learned defence counsel, it was his duty to seek time to file an objection and since there is nothing in the order that the defence counsel sought for any time to file his objection, it presupposes that the defence counsel or the accused, had no objection to such extension and therefore, it cannot be said that there is any infirmity in the order passed by the learned Special Judge in extending the completion of investigation for a further period of ninety days in view of the power conferred under section 36-A(4) of N.D.P.S. Act.
While clearing the question “whether extension for completing the investigation beyond the prescribed period of one hundred and eighty days can be granted under section 36-A(4) of the N.D.P.S. Act.” The learned court referred to Hitendra Vishnu Thakur v. the State of Maharashtra and held that “even though subsection (4) of section 36-A of the N.D.P.S. The act does not specifically provide for the issuance of notice to the accused on the report of the Public Prosecutor before granting an extension, but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice.”
While allowing the bail application the learned court observed that “this court is constrained to hold that the order of extension to complete the investigation granted by the learned Special Judge as per order, is not in accordance with law and therefore, the petitioner is entitled to be released on bail on that ground itself. Accordingly, the prayer for bail is allowed.”