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The single bench noted that 'the public prosecutor shall be convinced on the submission of the Investigating Agency that there is progress in the investigation and for the reasons offered in the report, it could not be completed'.
A single judge bench of Justice Bharathi Dangre of the Bombay High Court, on 6th September 2022 granted default bail to an accused under Section 167(2) of the Criminal Procedure Code read with Section 36A of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS).
The matter goes back to the year 2021, when the applicant was arrested by the Police for an offence punishable under Section 8(c) read with Section20(b), 22(c) of the NDPS Act.
The court in its order referred to the provisions of the NDPS Act wherein the accused can be kept in detention for 180 days instead of 90 days as mentioned under the Criminal Procedure Code. Further, Section 36A of the NDPS Act provides that the detention period of the accused can be extended beyond 180 days by the Special Judge up to 1 year, on a report being submitted by the public prosecutor about the progress of the investigation and reason for detention beyond 180 days.
However, in the present case, the application for an extension of detention was directly filed by the investigating officer before the court.
The Court noted that It is a settled position of law that when the law requires a particular thing to be done in a particular manner, then it shall be done only in that manner and in no other way.
Further, the court noted in its order that the legislature did not leave up to the investigating officer to file an application for extension specifically and that the officer should invite the attention of the public prosecutor who shall submit the report of the investigation and reason of detention before the court with the proper application of mind.
The bench mentioned in its order that, It has been time and again reiterated that the Public Prosecutor is neither the Post office of the Investigating Agency nor he is a forwarding agency.
The court while granting default bail to the accused referred to the decision of the Apex Court in the case of M.Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, 2021 (2) SCC 485, wherein it was held that default bail which has been recognised as an integral part of the right of the person to personal liberty under Article 21 of the Constitution of India. Once an application has been filed under Section 167(2) of the Criminal Procedure Code, the applicant is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after the expiry of the stipulated time limit for investigation
Case Title: Shlok Rakesh Todankar vs. State of Maharashtra
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