Bombay High Court
HAIDER NOOR SHAIKHversusUNION OF INDIA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The extension of the investigation period was invalid because the accused were not produced before the court, thereby entitling the applicants to default bail under Section 187(3) of the BNSS read with Section 36‑A(4) of the NDPS Act.
Summary
The Bombay High Court heard eight grouped bail applications filed by various accused under the BNSS and CrPC seeking default bail after the statutory 180‑day investigation period expired in a large NDPS case involving over 1,800 kg of mephedrone. The prosecution had obtained an extension of the investigation period on 14‑08‑2024, but the court found that the accused were never produced before the trial court when the extension was considered, violating the procedural safeguards mandated by Supreme Court precedents. Consequently, the extension was held invalid, and the right to statutory/default bail under Section 187(3) of the BNSS and Section 36‑A(4) of the NDPS Act accrued. The court therefore granted bail to all eight applicants, subject to strict conditions, and refused the prosecution’s request for a stay of the order.
Issues considered
- The validity of the extension of the investigation period granted on 14‑08‑2024 under Section 36‑A(4) of the NDPS Act.
- Whether the failure to produce the accused before the court at the time of considering the extension violates statutory safeguards and defeats the right to default bail.
- Whether the filing of the charge‑sheet after the alleged extension bars the accused from claiming statutory bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 187(3)
- Code of Criminal Procedure, 1973 — s. 167(2)
- Foreigners Act, 1946
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 22(a), 29, 36‑A(4), 8(c)
Subjects
- default bail
- NDPS Act
- extension of investigation
- statutory period
- Article 21
- procedural safeguards
- commercial quantity narcotics
- high court bail
Judgment
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 5481 OF 2024
Bhimaji Parshuram Sabale .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 3233 OF 2025
Shoyeb Saeed Shaikh .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 3256 OF 2025
Ayub Akbarsha Makandar .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 3384 OF 2025
Cynthia @ Favour Ugababang Onyekpe .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 4531 OF 2025
Ankita Narayanchandrda Das .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 1724 OF 2026
Sandeep Hanuman Singh Yadav .. Applicant
Versus
Union of India & Anr. .. Respondents
1 of 46
WITH
BAIL APPLICATION NO. 1746 OF 2026
Devender Ramphool Yadav .. Applicant
Versus
Union of India & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 2855 OF 2026
Haider Noor Shaikh .. Applicant
Versus
Union of India & Anr. .. Respondents
....................
Mr. Tabish Mooman i/b. Mr. Raghav Srivatsa, S.N. Khan, Advocates
i/by S N Khan for Applicant in Bail Application No. 3256/2025
Mr. Nadeem Khan, Advocate i/by S N Khan for Applicant in Bail
Application Nos.3233 of 2025 & 3384/2025;
Mr. Taraq Sayed a/w Mr. Anish Pereira, Ms. Ashwini Achari, Mr.
Aryan Kotwal & Mr. Devashish Dhanjode, Advocates for Applicants
in Bail Application No. 5481 of 2024;
Mr. Atul R Patil a/w Tanmay T. Jadhav, Advocates for Applicants in
Bail Application Nos. 1724 of 2026 and 1746 of 2026;
Ms. Sana Raees Khan a/w Mr. Dev Bhosale, Advocates for
Applicants in Bail Application Nos. 4531 of 2025 and 2855 of 2026
Mr. S. K. Halwasia a/w. Ms. S. S. Halwasia, Advocate for
Respondents - NCB in Bail Application Nos. 3233 of 2025, 3384 of
2025, 5481 of 2024, 1724 of 2026, 1746 of 2026 & 3256 of 2025
Mr. Sukanta Karmakar, APP for Respondent No.1 – State.
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : OCTOBER 05, 2026.
P.C.:
1. Heard Mr. Mooman, learned Advocate for Applicant in Bail
Application Nos. 3256 of 2025; Mr. Khan, learned Advocate for
Applicant in Bail Application Nos.3233 of 2025 and 3384 of 2025; Mr.
Sayed learned Advocate for Applicant in Bail Application No. 5481 of
2 of 46
2024; Mr. Patil learned Advocates for Applicants in Bail Application
Nos. 1724 of 2026 and 1746 of 2026; Ms. Khan learned Advocate for
Applicants in BA Nos. 4531 of 2025 and 2855 of 2026; Mr. Halwasia
learned Advocate for Respondents - NCB in Bail Application Nos. 3233
of 2025, 3384 of 2025, 5481 of 2024, 1724 of 2026, 1746 of 2026 &
3256 of 2025 and Mr. Karmakar, learned APP for Respondent No.1 –
State.
2. This is a group of 8 Bail Applications. All 8 Bail Applications
are heard and disposed of by this common order.
2.1. Bail Application No.5481 of 2024 is filed by Applicant –
Bhimaji Parushuram Sabale under Section 187(3) of Bharatiya Nagarik
Suraksha Sanhita, 2023 (for short “BNSS”) seeking enlargement on
default bail in connection with First Information Report being C.R.
No.NCB/MZU/CR-11 of 2024 (earlier N.D.P.S. C.R. No.38 of 2024
Samarth Police Station).
2.2. Bail Application No.3233 of 2025 is filed by Applicant -
Shoyeb Saeed Shaikh under Section 167(2) of Code of Criminal
Procedure, 1973 (for short “Cr.C.P.”) seeking enlargement on default
bail in connection with First Information Report being C.R. No.
NCB/MZU/CR-11 of 2024 (earlier N.D.P.S. C.R. No.38 of 2024
Samarth Police Station).
3 of 46
2.3. Bail Application No.3256 of 2025 is filed by Applicant –
Ayub Akbarsha Makandar under Section 167(2) of Code of Criminal
Procedure, 1973 seeking enlargement on default bail in connection
with First Information Report being C.R. No. NCB/MZU/CR-11 of 2024
(earlier N.D.P.S. C.R. No.38 of 2024 Samarth Police Station).
2.4. Bail Application No.3384 of 2025 is filed by Applicant –
Cynthia alias Favor alias Favour Ugababang Onyekpe under Section
167(2) of Code of Criminal Procedure, 1973 seeking enlargement on
default bail in connection with First Information Report being C.R.
No.NCB/MZU/CR-11 of 2024 (earlier N.D.P.S. C.R. No.38 of 2024
Samarth Police Station).
2.5. Bail Application No.4531 of 2025 is filed by Applicant –
Ankita Narayanchandra Das under Section 187(3) of Bharatiya
Nagarik Suraksha Sanhita, 2023 seeking enlargement on default bail
in connection with First Information Report being C.R.
No.NCB/MZU/CR-11 of 2024 (earlier N.D.P.S. C.R. No.38 of 2024
Samarth Police Station).
2.6. Bail Application No. 1724 of 2026 is filed by Applicant –
Sandeep Hanuman Yadav under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 seeking enlargement on bail in connection
with First Information Report being C.R. No. 38 of 2024 registered
with Samarth Police Station, Pune for the offences punishable under
4 of 46
Section 22(a), 29 and 8(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
2.7. Bail Application No.1746 of 2026 is filed by Applicant –
Devendra Ramphool Yadav under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 seeking enlargement on bail in connection
with First Information Report being C.R. No. 38 of 2024 registered
with Samarth Police Station, Pune for the offences punishable under
Section 22(a), 29 and 8(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
2.8. Bail Application No.4531 of 2025 is filed by Applicant –
Haider Noor Shaikh seeking enlargement on bail in connection with
First Information Report being C.R. No.NCB/MZU/CR-11 of 2024
(earlier N.D.P.S. C.R. No.38 of 2024 Samarth Police Station).
3. Briefly stated, on 19.02.2024 a police team led Police
Inspector Ramesh Tapkir and Police Inspector Shabbir Sayyed of Unit –
I Crime Branch, Pune were patrolling in Somwar Peth when a white
Ertiga car bearing Registration No. MH-12-UJ-4081 was spotted near
Mhasoba Temple, Somwar Peth. Panch witnesses were summoned and
two individuals named Vaibhav alias Pintya Mane (Accused No.1) and
Ajay Karosiya (Accused No.2) were apprehended along with a bag
containing contraband viz; 500 grams of Mephedrone (MD) in their
possession and they were arrested. Thereafter based on the statement
5 of 46
of Accused No.1, Police arrested one Haider Noor Shaikh (Accused
No.3) at Vishrantwadi, Pune and recovered further 500 grams of MD
on him and 750 grams of MD from a tin shed near Wadarwadi at his
instance. All three persons were arrested and FIR No.38 of 2024 was
registered against them at Samarth Police Station under Section 8(c),
22(c) and 29 of NDPS Act. On interrogation of Accused No.3, he
disclosed existence of another of another godown and upon raiding the
same, Police recovered 53 zip locked bags containing totally 52.520
kilograms of MD. On the same date i.e. 19.02.2024, Police recorded
statements of two tempo drivers being Prahalad Shelke and Sitaram
Lokhande who had allegedly transported the above contraband
between Kurkumbh MIDC, Dhanori, Sangli and Delhi. Sitaram
Lokhande stated that he was offered Rs.60,000/- to transport
chemical filled drums from Pune to Delhi and one Shoaib Shaikh
(Accused No.13) accompanied him in the tempo and guided the him to
Delhi.
3.1. On 20.02.2024, acting on the information given by Accused
No.3, Police Officers visited one Earthchem Laboratories situated in
Kurkumbh MIDC and recovered 663.8 kilograms of MD and arrested
one Bhimaji Sable (Accused No.3) as well as one Yuvraj Bhujbal
(Accused No.5). Subsequently, the police team visited New Delhi for
further investigation where they conducted raid on House No.1881,
Kotla Mubarkpur, Delhi where they arrested Divesh Bhutani (Accused
6 of 46
No.8) and Sandeep Rajpal Kumar (Accused No.7) and recovered 319
kilograms of MD. On the same day, Police also conducted search of
House No.323 at Masjid Moth, South Extension Part 2, New Delhi
where Sitaram Lokhande had delivered certain drums of chemicals and
they recovered a further 651 kilograms MD. Subsequently, Accused
No.8 confessed to the police that he merely loaded the drums
containing MD onto the tempo which he received from one Sandeep
Yadav (Accused No.9) who was arrested on 21.02.2024 along with his
office boy Devendra Ramphool Yadav (Accused No.10).
3.2. On 21.02.2024, Accused No.3 recorded another statement
stating that he had stored MD at a godown belonging to Ayub
Makandar (Accused No.6). The Police raided this godown situated at
Balkrishna Nagar, Sangli and recovered 148.748 kilograms of MD.
During the course of investigation, certain other accused persons being
Sunil Barman, Mohammed Kureshi, Shoaib Shaikh, Cynthia, Ankita
Das and Nishant Modi were arrested. Later Respondent No.2 Narcotics
Control Bureau took over the investigation from the Police Authorities
and arraigned 20 persons as accused in the crime. 1837 kilograms 84
grams and 120 milligrams of contraband narcotic substance viz; MD
was recovered by the Investigation Officers in the entire operation. Bail
Applications of all Applicants filed before Trial Court were rejected,
hence present Applications are filed before this Court.
7 of 46
3.3. Mr. Sayed has argued for Applicant in Bail Application
No.5481 of 2024. The other Advocates for Applicants have all adopted
his submissions. Mr. Halwasia has represented the Union of India in all
8 Bail Applications. The following table gives the details of arrest and
filing of chargesheet by the prosecution qua each Applicant for ease of
convenience to decide the present Application for grant of bail:-
Sr. Bail Date of Date of end of Date of Filing Delay
No. Application Arrest 180 days period of argued
as per Section Chargesheet
36(4) of NDPS.
1. 5481 of 2024 20.02.2024 19.08.2024 05.02.2025N 170
CBComplaint days
2. 3233 of 2025 22.03.2024 21.09.2024 05.02.2025N 137
CB Complaint days
3. 3256 of 2025 22.02.2024 21.08.2024 05.02.2025N 168
CB Complaint days
4. 3384 of 2025 03.04.2024 02.10.2024 05.02.2025N 126
CB Complaint days
5. 4531 of 2025 12.08.2024 11.02.2025 05.02.2025N 5 days
CB Complaint
6. 1724 of 2026 21.02.2024 20.08.2024 05.02.2025N 175
CB Complaint days
7. 1746 of 2026 21.02.2024 20.08.2024 05.02.2025N 175
CB Complaint days
8. 2855 of 2026 19.02.2024 18.02.2024 05.02.2025N 13 days
CB Complaint
4. Mr. Sayed, learned Advocate for Applicant would submit that
Intelligence Officers from Narcotics Control Bureau, Mumbai Zone filed
FIR No. NCB/MZU/CR-11/2024 arising out of F.I.R. bearing No. 38 of
8 of 46
2024 dated 19.02.2024 registered with Samarth Police Station, Pune
and subsequently Complaint bearing Special Case No. 227 of 2025 was
filed on 05.02.2025 before 13th Additional Sessions Judge Pune. He
would submit that present Application is filed under Section 187 (3) of
the BNSS read with Section 36-A (4) of the NDPS Act, 1985 seeking
grant of default bail. He would submit that on 20.02.2024 Police
Officers of Samarth Police Station arrested present Applicant and on
21.02.2024 he was produced before the Magistrate for the first time
and was remanded to police Custody. He would submit that on
04.03.2024, Applicant was remanded to judicial custody. He would
submit that on 20.05.2024 Director General, Narcotics Control Bureau
directed the Joint Secretary, Government of Maharashtra to transfer
investigation of the instant matter to the Narcotics Control Bureau,
Mumbai Zonal Unit, Mumbai. He would submit that on 09.06.2024
Narcotics Control Bureau took over the investigation in the instant
matter and on 29.07.2024 Intelligence Officers of the Narcotics Control
Bureau, Mumbai Zonal Unit, Mumbai filed Application under Section
36-A (4) of the NDPS Act before Sessions Court, Pune praying for
extension of six months after completion of 180 days for investigation.
4.1. He would submit that on 31.07.2024 a Letter was addressed
by Additional Sessions Judge, Pune to the Jail Superintendent,
Yerawada Central Prison, Pune directing him to inform the accused
persons of the said application filed by the Intelligence Officer and give
9 of 46
them a copy of the same so as to enable them to file their reply on the
next date before Additional Sessions Judge, Pune. The accused person
refused to accept copy of the said application filed by the Intelligence
Officer and on 13.08.2024 Special Counsel Central Government filed
his report before the Sessions Court, Pune. He would submit that on
14.08.2024 Additional Sessions Judge, Pune allowed the application
moved by the Intelligence Officer and granted extension of 180 days
for investigation from the date of expiry of the initial 180 days and on
17.08.2024 statutory period of 180 days for investigation from date of
first remand lapsed. On 18.08.2024 Applicants right to default bail
accrued and on 31.12.2024 Applicant filed present Application seeking
default bail before Special Court which was rejected. On 05.02.2025
Special Case No.227 of 2025 was filed before Sessions Court, Pune.
4.2. He would submit that it is well settled position of law that if
the law contemplates for any act to be done according to the procedure
established by law then it must be done so. He would submit that such
principle finds its genesis in a decision of the Privy Council in the case
of Nazir Ahmad Vs. King-Emperor1 in which the Privy Council held that
“The rule which applies is a different and not less well recognised rule,
namely, that where a power is given to do a certain thing in a certain
way the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden.”
1 (1936) 38 BOM LR 987
10 of 46
4.3. He would submit that for offences under the NDPS Act,
1985, Section 36-A (4) contemplates requirement under the statute for
circumstances wherein it is not possible to complete the investigation
within the requisite number of days and bare perusal of the
aforementioned provision would show that for the purpose of seeking
an extension of time for filing a chargesheet/complaint it is a
mandatory requirement of law that the same shall be done only upon
receiving the report of the Public Prosecutor in the present case
indicating the progress of the investigation and the specific reasons for
the detention of the accused persons beyond the said period of 180
days. He would submit that report of the Public Prosecutor was filed
before the Ld. Sessions Court, Pune only on the 13.08.2024. He would
submit that that there is nothing on record to show that the Applicant
nor the other accused persons were produced before the Ld. Sessions
Court, Pune on 13.08.2024 and informed of the report filed by the
Public Prosecutor.
4.4. He would submit that Sessions Court, Pune allowed
application of the Intelligence Officer on the 14.08.2024 i.e. on the
177th day and there was no hurry to dispose of the matter as there
were yet few days remaining for the period of 180 days to lapse.
4.5. He would submit that the Intelligence Officer of the
Narcotics Control Bureau Mumbai Zonal Unit, Mumbai filed
11 of 46
application seeking extension for a period of 6 months on the expiry of
the initial 6 months so as to investigate into the matter on the
29.07.2024 i.e. 161st day and Sessions Court, Pune passed an order
allowing the said application on the 14.08.2024 i.e. on the 178th day.
He would submit that on bare perusal of the aforementioned timeline,
it is evident to that the necessary formalities required in respect of
Section 36-A (4) of the NDPS Act, 1985 were alleged to have been
completed much prior to the completion of 180 days. Hence, it is
evident that no right had accrued to the applicant at the said time and
at best it was an incoherent right until 17.08.2024.
4.6. He would refer to a decision of the Supreme Court in the
case of Jigar alias Jimmy Pravinchandra Adatiya Vs. State of Gujarat2
to contend that that failure to procure the presence of the accused
either physically or virtually before the court and the failure to inform
him that the application made by the Public Prosecutor for extension of
time is not a mere procedural irregularity, in fact it is a gross illegality
which violates the rights of the Accused persons, under Article 21. He
would refer to and rely upon a decision of the Kerala High Court in the
case of Sabarinath Vs. State of Kerala3 to contend that in similar facts
and circumstances, the Court granted relief as contemplated under
Section 167 (2) of Cr.P.C, 1973 and upheld sanctity of the law laid
down in the case of Jigar alias Jimmy Pravinchandra Adatiya (supra).
2 (2023) 6 SCC 484
3 2023 SCC OnLine 3666
12 of 46
He would submit that the law laid down in the aforesaid decisions
apply squarely to the case of Applicant as he was neither produced
before the Sessions Court, Pune on 13.08.2024 nor was he ever
informed about the report of the Public Prosecutor, hence the relief
sought under Section 187 (3) of the BNSS ought to be granted. He
would submit that the decisions of the Supreme Court in the cases of
Hitendra Vishnu Thakur Vs. State of Maharashtra & Ors. 4 and Sanjay
Dutt Vs. State through CBI, Bombay (II 5) have well established the
procedure as contemplated under section 167 (2) of the CrPC 1973.
He would submit that Supreme Court in the decision of Rakesh Kumar
Paul Vs. State of Assam6 held that Accused persons need not
necessarily make any application under section 167 (2) in writing but
can also transmit the same orally as the said right is embodied with the
statute itself and it is the incumbent duty of the Magistrate to inform
the Accused persons of their right to default bail.
4.7. He would submit that deprivation of default bail as
contemplated under Section 167 (2) of the CrPC, 1973 and now
Section 187(3) of BNSS would amount to a gross violation of Article
21 of the Constitution of India, 1950 as it would severely affect the
right to life and personal liberty of an individual. He would submit that
the Supreme Court and this Court have repeatedly emphasised on the
4 (1994) 4 SCC 602
5 (1994) 5 SCC 410
6 (2017) 15 SCC 67
13 of 46
importance of Article 21 of the Constitution of India, 1950 and that
Section 167 (2) flows through it. He would submit that when an
accused is deprived of his right to default bill it is incumbent upon a
Constitutional Court to examine the said matter as the accused raises
an objection to the deprivation of his fundamental right as guaranteed
and Article 21 of the Constitution of India, 1950. He would submit that
in the present case, there is gross violation of the fundamental right
guaranteed to the Applicant under Article 21 of the Constitution of
India, 1950 as the investigating agency has turned an absolute blind
eye to the law laid down by the Supreme Court which has resulted in
deprivation of the accused person’s right under Article 21 of the
Constitution of India read with section 187 (3) of the B.N.S.S., 2023.
4.8. He would submit that the Supreme Court in the case of
Sundeep Kumar Bafna Vs. State of Maharashtra7 held that the Sessions
Court as well as the High Court have concurrent powers for grant of
bail. He would submit that legislature has conferred powers to grant
bail on the High Court as well as the Sessions Court for grant of bail
and that there is no exclusion of jurisdiction that bail applications are
to be filed before the Sessions Court first and then before the High
Court. He would submit that the same is clearly concurrent and that a
citizen has the right to choose which Court to approach and therefore
bail application cannot be rejected merely on the ground that the
7 (2014) 16 SCC 623
14 of 46
accused has directly approached the High Court and failed to approach
the Sessions Court. at first instance. He would submit that Applicant is
therefore entitled to grant of default bail in light of the aforementioned
submissions. Mr. Mooman, Mr. Patil and Ms. Khan appearing for the
Applicants in companion matter would adopt the submission of Mr.
Sayed, which for the sake of brevity are not reiterated hereinunder.
5. Ms. Khan, learned Advocate for Applicant in Bail Application
No.4531 of 2025 would in addition thereto qua the Applicant herein
would submit that no contraband was recovered from the person of
Applicant during search conducted by the Investigation Officers. She
would submit that it is prosecution’s case that her client was engaged
in prostitution and she came in contact with Accused No.17 who
induced her to sign as Director in a pharmaceutical company. She
would submit that Applicant accepted the offer however
unintentionally she was wrapped up in transfer of money through the
angadiya system and she had absolutely no knowledge of the same
neither is there any evidence or material appended by the prosecution
on record to prove her complicity in the offences charged under NDPS
Act. She would submit that her client was not arrested after her first
statement under Section 67 was recorded on 21.02.2024 and she was
arrested only on 11.08.2024. She would submit that charge of Section
29 of NDPS Act cannot be levied against this Applicant since there is
no evidence to show any theory of conspiracy between the other
15 of 46
accused and her. She would refer to and rely upon the decision of the
Supreme Court in the case of Ankur Chaudhary Vs. State of Madhya
Pradesh8 to contend that prolonged imprisonment arising from delay in
trial violated accused person’s right to life and liberty under Article 21
of the Constitution of India. She would urge the Court to enlarge
Applicant on bail in light of the aforementioned submissions also.
6. Mr. Halwasia, learned Advocate appearing for NCB has
drawn my attention to the Affidavit-in-Reply dated 10.03.2026 filed by
Mr. Palve Santram Murlidhar, Investigating Officer on behalf of NCB
and would submit that the present bail applications seeking
statutory/default bail are not maintainable in view of the fact that the
charge-sheet has already been filed. He would submit that specific role
of every accused is stated in detail in the chargesheet. He would
submit that the indefeasible right to default bail under Section 167(2)
of the Cr.P.C. is available only when the statutory period has expired
and the accused has availed of such right before the filing of the
charge-sheet. He would submit that once the charge-sheet is filed the
custody of accused is governed by the provisions applicable after filing
of the charge-sheet and the question of bail is required to be
considered on merits. In support of his submissions he has referred to
and relied upon the decision of the Supreme Court in the case of (i)
Sanjay Dutt Vs. The State through C.B.I. Bombay9 ; (ii) State of
8 Special Leave to Appeal (Crl.) No. 4648 of 2024
9 1994 AIR SCW 3857
16 of 46
Uttarakhand Vs. Javed Siddiqui and Anr. 10; (iii) Shaurya Sunil Kumar
Singh Vs. Central Bureau of Investigation11 ; and (iv) Central Bureau of
Investigation Vs. Kapil Wadhawan and Anr.12
6.1. He would submit that in the present case the application
seeking extension of time for completion of investigation was filed
before expiry of the initial statutory period of 180 days. He would
submit that by order dated 14.08.2024, Trial Court allowed the said
application and granted extension of time for filing the charge-sheet.
He would submit that the charge-sheet was thereafter filed within the
period of extension granted by the Trial Court. He would submit that
the accused persons did not challenge the order granting extension of
time and the said order continued to remain operative. In support of
his submissions he has referred to and relied upon the decision of the
Supreme Court in the case of Rambeer Shokeen Vs. State of NCT of
Delhi13 and would submit that unless the prayer for extension of time
made by the prosecution is rejected, no indefeasible right to statutory
bail can accrue in favour of the accused.
6.2. He would submit that the order granting extension of time
under Section 36A of the NDPS Act read with Section 167 of the
Cr.P.C. was never challenged by the accused and consequently
remained in force. He would submit that when the application for
10 2026 SCC 503
11 2026 SCC 738
12 2024 SCC 72
13 (2018) 4 SCC 405
17 of 46
default bail was considered by the Court below there was already a
valid order extending the period for completion of investigation. He
would submit that the charge-sheet was filed within the extended
period and therefore no right to default bail survived in favour of the
accused persons. In support of his submissions, he has placed reliance
on the decision of the Supreme Court in the case of Qamar Ghani
Usmani Vs. State of Gujarat14 and submit that where an order granting
extension of time is in existence and the charge-sheet is filed within the
extended period, the accused cannot claim statutory bail merely on the
ground of expiry of the original period.
6.3. He would submit that the present proceedings cannot be
permitted to be converted into a collateral challenge to the order
granting extension of time. He would submit that an application under
Section 439 of the Cr.P.C. or Section 483 of the BNSS cannot be
treated as a revision application under Sections 397 and 401 of the
Cr.P.C. or the corresponding provisions of the BNSS. He would submit
that the accused persons had an opportunity to challenge the order
granting extension of time in accordance with law but no such
challenge was preferred within the prescribed period. He would
therefore submit that the validity of the extension order cannot now be
indirectly questioned in the present bail proceedings.
14 Criminal Appeal Nos.1045-1046/2023; SLP(Crl.) Nos. 011196 -011197/2022 decided on 23.09.2022
18 of 46
6.4. He would submit that the order granting extension of time
was passed after due consideration of the material placed before the
Trial Court. He would submit that the report of the APP was
considered by the Trial Court and the accused persons were given an
opportunity to place their say. He would submit that Accused Nos. 1
and 2 had in fact filed their say and were represented through
Advocates. He would submit that the record would further
demonstrate that as many as seven groups of Advocates appeared on
behalf of the accused persons before the Trial Court as recorded in
paragraph No.10 of the order dated 14.08.2024. He would submit that
notices were issued to all the accused persons by the Sessions Court
and despite such opportunity the Senior Jailor of Yerawada Central
Prison informed the Trial Court that fourteen (14) accused had refused
to give their say.
6.5. He would submit that the magnitude and gravity of the
alleged offence also cannot be lost sight of while considering the
present applications. He would submit that the prosecution case
concerns recovery of high quantity of MD which according to the
prosecution has an extremely high commercial value. He would submit
that the quantity involved is enormous and the alleged offence has
serious ramifications for society. He would submit that the Supreme
Court in the case of Harpreet Singh Talwar Vs. State of Gujarat15 has
15 2025 SCC 895
19 of 46
emphasised that the magnitude of the crime and its impact upon
society are relevant considerations while dealing with offences
involving commercial quantities of narcotic substances. He would
therefore submit that the nature and magnitude of the alleged offence
as well as the statutory scheme under the NDPS Act are relevant
circumstances which ought to be considered while deciding the prayer
for bail on merits.
7. I have heard Mr. Mooman, learned Advocate for Applicant in
Bail Application No.3256 of 2025; Mr. Khan, learned Advocate for
Applicant in Bail Application Nos.3233 of 2025 and 3384 of 2025; Mr.
Sayed, learned Advocate for Applicant in Bail Application No.5481 of
2024; Mr. Patil, learned Advocates for Applicants in Bail Application
Nos.1724 of 2026 and 1746 of 2026; Ms. Khan, learned Advocate for
Applicants in BA Nos. 4531 of 2025 and 2855 of 2026; Mr. Halwasia,
learned Advocate for Respondents - NCB in Bail Application Nos.3233
of 2025, 3384 of 2025, 5481 of 2024, 1724 of 2026, 1746 of 2026 &
3256 of 2025 and Mr. Karmakar, learned APP for Respondent No.1 –
State.
8. At the outset, it is seen that the principal contention
advanced on behalf of the Applicants is with regard to the extension of
the period of investigation granted by the Trial Court by order dated
14.08.2024 which cannot enure to the benefit of the prosecution since
20 of 46
the mandatory procedure contemplated under Section 36-A(4) of
NDPS Act read with Section 187(3) of the BNSS 2023 has not been
followed. Mr. Sayed would submit that although the Application
seeking extension of the period of investigation was filed by the
Investigating Officer on 29.07.2024 and the report of the SPP was
tendered on 13.08.2024 there is nothing on record to demonstrate that
Applicants were produced either physically or through Video
Conferencing before the Trial Court when the Application for extension
was considered. It is further submitted that there is no material to
establish that Applicants were informed of the report submitted by the
prosecution or that they were kept present before the Court when the
extension was granted. He would therefore submit that the order dated
14.08.2024 cannot have the effect of extending the statutory period
and upon expiry of the initial period of 180 days the Applicants
acquired an indefeasible right to statutory/default bail under Section
187(3) of the BNSS read with Section 36-A(4) of the NDPS Act.
9. In that view of the matter, I am of the opinion that in order
to appreciate the aforesaid submission it would be necessary to
reproduce the relevant statutory provisions. Section 36-A(4) of the
NDPS Act reads as under:
“36A. Offences triable by Special Courts.—
(1) xxxxxx
(2) xxxxxx
21 of 46
(3) xxxxxx
(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) xxxxxx”
10. Section 187(3) of the BNSS which corresponds to Section
167(2) of the Cr.P.C and Section 187 (4) of BNSS are reproduced as
under:
“187. Procedure when investigation cannot be completed in
twenty-four hours.
(1) xxxxxx
(2) xxxxxx
(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 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
22 of 46
judicial custody on production of the accused either in person or
through the audio-video electronic means.
(5) xxxxxx”
11. A plain reading of the aforesaid provisions makes it clear
that the legislature has prescribed a period of 180 days for completion
of investigation in cases falling within Section 36-A(4) of the NDPS
Act. The further period of investigation beyond 180 days is not
available to the prosecution as a matter of right. The Special Court is
empowered to extend the said period only upon being satisfied on the
basis of the report of the prosecution which must indicate the progress
of the investigation and the specific reasons for detention of the
accused beyond the period of 180 days. The order of extension
therefore is not a mere administrative continuation of the original
period. It is an order which directly affects the personal liberty of the
accused and permits the prosecution to continue the investigation and
detention of the accused beyond the period fixed by the legislature.
The statutory requirements governing such extension must therefore be
strictly complied with. In the present case the filing of the Application
for extension before expiry of the initial period of 180 days is not by
itself sufficient to answer the question which arises for consideration.
What has to be examined is whether the extension granted on
14.08.2024 was a valid extension in the eye of law and whether the
procedure prescribed by the statute and the law laid by the Supreme
Court in various judgments was followed when the Trial Court
23 of 46
considered and allowed the said application.
12. The aforesaid issue has been considered by the Supreme
Court in a series of decisions. At this stage it would be appropriate to
first consider the decision of the Constitution Bench in the case of
Sanjay Dutt (supra) which has also been relied upon by the NCB. The
relevant paragraph No.53(2)(a) of the said decision is reproduced as
hereunder:
“53. xxxxxx
(1) xxxxxx
(2)(a) Section 20(4)(bb) of the TADA Act only requires
production of the accused before the court in accordance with
Section 167(1) of the Code of Criminal Procedure 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 proviso to clause (bb) 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 [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT
(1994) 4 SC 255] . 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 sufficient for the purpose.”
13. The aforesaid judgment makes a distinction between a
written notice to the accused containing the reasons for seeking
extension and the requirement of keeping the accused present before
the Court. The Constitution Bench has held that a separate written
notice setting out the reasons for extension is not necessary. However
the same judgment recognises the requirement of production of the
accused before the Court when the prayer for extension is considered.
24 of 46
Thus the submission that the accused is entitled in every case to a
separate written notice containing the reasons for extension cannot be
accepted. At the same time the absence of a requirement of written
notice cannot be understood to mean that the presence of the accused
before the Court is unnecessary. The distinction is material. The
statutory safeguard is not founded upon a requirement of formal
written notice alone but upon the accused being before the Court when
an order is sought which would have the effect of continuing his
detention beyond the period ordinarily prescribed by law.
14. The aforesaid principle was subsequently considered by the
Supreme Court in Jigar alias Jimmy Pravinchandra Adatiya (supra). It
is seen that the Supreme Court considered the earlier judgments
including Hitendra Vishnu Thakur (supra) and Sanjay Dutt (supra) and
reiterated the significance of production of the accused at the stage
when an Application for extension of the period of investigation is
considered. The failure to produce the accused either physically or
through Video Conferencing and the failure to inform him that the
application made by the Public Prosecutor for extension of time is
being considered was held to be more than a mere procedural
irregularity. The principle emerging from the said judgment is that the
procedure adopted while extending the period of investigation cannot
be divorced from the right of the accused to personal liberty. Where
the Court is called upon to permit the prosecution to continue the
25 of 46
investigation beyond the period prescribed by statute the safeguards
recognised by the Supreme Court must necessarily be borne in mind.
15. The aforesaid principle has also been considered by the
Kerala High Court in the case of Sabarinath (supra). In the said case
the Court considered the effect of non-production of the accused when
extension of the period of investigation was sought and followed the
principle laid down by the Supreme Court in the case of Jigar alias
Jimmy Pravinchandra Adatiya (supra). The decision is of persuasive
value for the present case before me. It reinforces the principle that the
production of the accused at the stage when the Court is called upon to
extend the period of investigation cannot be reduced to an empty
procedural formality. The consequence of an extension order is the
continuation of custody beyond the period otherwise prescribed by law
and therefore the safeguards surrounding such an order have to be
viewed in that context.
16. It would now be necessary to consider the subsequent
judgment of the Supreme Court in Qamar Ghani Usmani (supra)
decided on 10.04.2023 upon which considerable reliance has been
placed by the learned Special Public Prosecutor. It is significant that
Qamar Ghani Usmani (supra) was decided after Jigar alias Jimmy
Pravinchandra Adatiya (supra) and that the Supreme Court was
therefore dealing with the very line of authorities which is relied upon
26 of 46
by the Applicants. The Supreme Court reconciled all the aforesaid
judgments and held that the sum and substance of the law laid down
in Sanjay Dutt (supra)and Jigar alias Jimmy Pravinchandra Adatiya
(supra) is that while considering an application by the Investigating
Agency for extension of the period of investigation beyond the period
prescribed under Section 167(2) of the Cr.P.C. the accused is to be
given notice and/or is to be kept present before the Court so that the
accused has knowledge that the extension is sought and granted.
17. In my considered opinion it is necessary to clarify the effect
of Qamar Ghani Usmani (supra) at this stage since considerable
reliance has been placed upon the said judgment by the prosecution.
The subsequent decision in Qamar Ghani Usmani (supra) cannot be
construed as having overruled or diluted the principle laid down in
Jigar alias Jimmy Pravinchandra Adatiya (supra). On the contrary the
Supreme Court expressly considered Jigar alias Jimmy Pravinchandra
Adatiya (supra) along with Sanjay Dutt (supra) and the other
judgments and reconciled the principles emerging from them. The
Supreme Court reiterated that while an application for extension is
being considered the accused is to be given notice and/or is to be kept
present before the Court so that he has knowledge that the extension is
sought and granted. Therefore Qamar Ghani Usmani (supra) does not
lay down that production of the accused before the Court at the stage
of consideration of the extension application is unnecessary. What the
27 of 46
judgment does is to examine whether in the peculiar facts of that case
the initial failure to keep the accused present was sufficient by itself to
entitle him to default bail.
18. The distinction becomes apparent from the facts considered
by the Supreme Court in Qamar Ghani Usmani (supra). In that case
the accused was admittedly not kept present when the first extension
was granted. However the accused was informed about the extension
on the very next day. Despite such knowledge he did not challenge the
extension. He thereafter remained present when the second extension
was sought and granted and no objection was raised either to the first
extension or to the subsequent extension. The default bail application
was filed while the first extension was already in existence and the
charge-sheet was subsequently filed within the extended period. It was
in these peculiar circumstances the Supreme Court declined to grant
statutory/default bail. Thus the refusal of relief in Qamar Ghani
Usmani (supra) was not founded upon a proposition that the presence
of the accused at the stage of extension is immaterial. It was founded
upon the subsequent events and the conduct of the accused in that
particular case.
19. The distinction between the present case and Qamar Ghani
Usmani (supra) is therefore material. In the present case Applicants
are challenging the validity of the extension itself on the ground that
28 of 46
they were not produced before the Trial Court when the application for
extension and the report of the learned Public Prosecutor were
considered. There is no material placed before this Court to
demonstrate circumstances comparable to those in Qamar Ghani
Usmani (supra) where the accused was informed immediately after the
first extension and thereafter was present when a second extension
was granted without raising any objection to the validity of the earlier
order. There is also no material to show that the Applicants
subsequently accepted or acquiesced in the extension in the manner
noticed by the Supreme Court in Qamar Ghani Usmani (supra). The
decision therefore cannot be applied mechanically merely because in
that case also the accused had not been kept present when the first
extension was granted.
20. It would now be appropriate to consider the submissions
advanced by Mr. Halwasia, learned Special Public Prosecutor
appearing for the NCB. He would submit that the present Applications
seeking statutory/default bail are not maintainable since the
chargesheet / challan has already been filed on 05.02.2025. He would
submit that the indefeasible right under Section 167(2) of the Cr.P.C.
is available only when the statutory period has expired and the accused
has availed of such right before filing of the chargesheet. According to
him once the chargesheet is filed within the period of extension
granted by the Court the custody of the accused is governed by the
29 of 46
provisions applicable after filing of the chargesheet and the question of
bail has to be considered on merits. He would further submit that the
application seeking extension was filed before expiry of the initial
period of 180 days and the Trial Court by order dated 14.08.2024
granted extension for a further period of 180 days. He would submit
that the said order was never challenged by Applicants and continued
to remain operative. He has placed reliance on various judgements to
contend that once an extension order is in existence and the charge-
sheet is filed within the extended period no indefeasible right to
statutory bail survives.
21. The first question which arises for consideration is whether
the filing of the complaint on 05.02.2025 has by itself extinguished the
right claimed by the Applicants. In my considered opinion the
submission of the prosecution proceeds on the assumption that the
period between expiry of the initial statutory period and filing of the
chargesheet stood validly extended by the order dated 14.08.2024. The
validity of that extension is therefore fundamental to the determination
of the present Applications. If the extension was validly granted then
the subsequent filing of the chargesheet within the extended period
would undoubtedly assume significance. However if the extension
itself is found not to have been granted in accordance with the
statutory scheme and the law laid down by the Supreme Court then
the prosecution cannot rely upon such extension to defeat a right
30 of 46
which had accrued upon expiry of the valid statutory period.
22. With regard to the contention that the application for
extension was filed before expiry of 180 days it is necessary to observe
that the filing of an application before expiry of the statutory period
does not by itself extend the period prescribed by law. The Court must
consider the application and pass an order in accordance with the
requirements of Section 36-A(4) of the NDPS Act. The prosecution
therefore cannot contend that because the application was filed on
29.07.2024 the statutory period automatically stood extended from the
date of its expiry. The order of extension is the act which is required to
be tested in accordance with the statutory requirements. The mere
pendency of an application does not by itself confer upon the
prosecution an enlarged period of investigation.
23. In the present case, the application for extension was filed on
29.07.2024. The report of the learned Special Public Prosecutor was
filed on 13.08.2024 and the Trial Court allowed the application on
14.08.2024. Applicants contend that there is nothing in the record to
establish that they were produced before the Court on 13.08.2024
when the report of the learned Public Prosecutor was tendered or on
14.08.2024 when the extension was granted. The prosecution relies
upon the communication addressed to the Jail Superintendent on
31.07.2024 and upon the fact that copies of the application were
31 of 46
sought to be furnished to the accused persons. However the question
before the Court is not whether the Jail Superintendent was directed to
inform the accused persons about the extension application. The
question is whether the Applicants were actually produced before the
Court when the application for extension was considered and the order
extending their detention beyond the statutory period was passed.
24. It is seen from the material placed before this Court that the
Trial Court on 31.07.2024 addressed a communication to the Jail
Superintendent Yerawada Central Prison directing that the accused
persons be informed about the application filed by the Investigating
Officer and that copies of the same be furnished to them so as to
enable them to file their reply. It is further seen that the accused
persons allegedly refused to accept the copies. The report of the
learned Special Public Prosecutor was thereafter filed on 13.08.2024
and the extension application was allowed on 14.08.2024. However
with regard to the crucial requirement of production of the Applicants
the order dated 14.08.2024 as presently placed before this Court does
not record that Applicants were produced before the Trial Court either
physically or through Video Conferencing when the extension
application was considered. The fact that Advocates appeared for some
accused persons or that certain accused persons submitted their say
cannot by itself establish compliance with the requirement recognised
in Jigar alias Jimmy Pravinchandra Adatiya (supra) along with Sanjay
32 of 46
Dutt (supra) and subsequently explained in Qamar Ghani Usmani
(supra).
25. The submission that certain accused persons refused to give
their say also does not alter the position. The question is not merely
whether an opportunity to submit a written say was offered to the
accused. The requirement recognised by the Supreme Court is
concerned with the presence of the accused when the Court considers
the request to extend the period of investigation and thereby permits
the continued detention of the accused beyond the statutory period. A
communication addressed to the Jail Superintendent and an
opportunity to submit a written reply cannot automatically be equated
with production of the accused before the Court. The distinction
assumes significance in view of the law laid down in Sanjay Dutt
(supra) where the Constitution Bench specifically distinguished the
requirement of written notice from the requirement of production of
the accused before the Court.
26. In this context, the submission that Applicants did not
challenge the extension order by way of an independent proceeding
also requires consideration. Applicants are not seeking in the present
proceedings to challenge the order dated 14.08.2024 in isolation. Their
contention is that the prosecution cannot rely upon the said order for
the purpose of defeating their statutory right since the extension was
33 of 46
granted without following the procedure prescribed by law. The
validity of the extension is therefore directly connected with the
determination of whether the Applicants acquired an indefeasible right
to statutory/default bail. The Court is not being called upon to
examine the extension order for an unrelated purpose. It is required to
determine whether the prosecution can rely upon that order as the
source of authority for continuing Applicants' detention beyond the
original statutory period.
27. In my view therefore the present proceedings cannot be
characterised as a mere collateral challenge to the extension order. The
question whether the statutory period was validly extended is a
necessary question which arises while determining Applicants'
entitlement under Section 187(3) of the BNSS read with Section 36-
A(4) of the NDPS Act. If the order dated 14.08.2024 is legally valid
then Applicants cannot claim that the original period of 180 days alone
governs their detention. However if the order cannot be relied upon
because the procedure governing extension was not followed then the
prosecution cannot take advantage of an invalid extension for the
purpose of defeating a statutory right.
28. It is seen that the Supreme Court in Qamar Ghani Usmani
(supra) itself considered the decision in Rambeer Shokeen (supra) and
distinguished the same on facts. In Rambeer Shokeen (supra) the
34 of 46
application seeking extension was pending consideration when the
accused applied for default bail. The Supreme Court held that the
pending application for extension was required to be considered first.
The present case is materially different since the extension application
has already been allowed and the question before this Court is whether
the order granting extension was validly passed in accordance with the
statutory scheme and the law declared by the Supreme Court.
29. Similarly the judgements relied upon by the learned Special
Public Prosecutor for the proposition that the filing of the chargesheet
within the extended period defeats a claim for default bail necessarily
proceed on the existence of a valid extension. The subsequent filing of
the chargesheet cannot by itself cure a defect in the very order which is
relied upon by the prosecution to enlarge the statutory period. The
prosecution cannot derive an advantage from an extension order
without first demonstrating that the order was validly passed in
accordance with the statutory conditions and the binding principles
governing such extension.
30. With regard to the high quantity of contraband recovered,
the Court is conscious of the gravity of the allegations. The alleged
recovery of approximately 1837 kg 84 g 120 mg of MD is undoubtedly
a large commercial quantity. The allegations are serious and the
societal ramifications urged by the prosecution cannot be ignored.
35 of 46
However the present Applications are not applications for regular bail
on merits. Applicants invoke a statutory right to default bail. The
considerations which may be relevant while considering regular bail
under the NDPS Act including the quantity of contraband and the
restrictions contained in Section 37 cannot be permitted to override a
statutory right where the statutory conditions for its accrual are
satisfied.
31. The distinction between regular bail and statutory/default
bail assumes significance in the present case. A Court considering
regular bail is required to examine the nature of the allegations the
material collected during investigation, the possibility of the accused
committing a further offence and the statutory restrictions applicable
under the NDPS Act. In a case of default bail the principal
consideration is different. The Court is required to determine whether
the prosecution has completed the investigation within the period
prescribed by law or has obtained a legally valid extension of that
period. The seriousness of the offence cannot by itself enlarge the
period which the legislature has prescribed for completion of
investigation.
32. In the present case it is seen that Applicants are challenging
the extension itself. The material placed before this Court does not
demonstrate that after the order dated 14.08.2024, Applicants were
36 of 46
subsequently produced before the Court in relation to the extension
and consciously accepted the continuation of the extended period.
There is also no material to establish circumstances analogous to those
in Qamar Ghani Usmani (supra) where the accused was informed on
the very next day and thereafter remained present when the second
extension was granted without raising any objection to the earlier
extension. The factual foundation upon which the Supreme Court
declined to grant default bail in Qamar Ghani Usmani (supra) is
therefore absent in the present case.
33. Attention is also invited to paragraph No.9 of the decision in
the case of PadmaSundara Rao (Dead) and Ors. Vs. State of T.N. and
Ors.16 in this regard, paragraph No.9 reads thus:-
“9. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of
the facts of a particular case, said Lord Morris in Herrington v.
British Railways Board. Circumstantial flexibility, one
additional or different fact may make a world of difference
between conclusions in two cases.”
33.1. Hence, I am not inclined to accept the reliance placed by Mr.
Halwasia on the decision in the case of Qamar Ghani Usmani (supra).
34. Hence, in view of the law laid down in Sanjay Dutt (supra)
as subsequently considered in Jigar alias Jimmy Pravinchandra Adatiya
16 (2002) 3 SCC 533
37 of 46
(supra) and reconciled in Qamar Ghani Usmani (supra) this Court is of
the view that production of the accused before the Court at the stage of
consideration of the application for extension is a necessary safeguard.
The requirement is not an empty formality. The order of extension
directly affects the personal liberty of the accused because it permits
the prosecution to continue investigation and the accused to remain in
custody beyond the period ordinarily prescribed by law. The Court
while exercising such power must therefore ensure compliance with
the procedure recognised by the Supreme Court.
35. In the facts of the present case the material before this Court
does not establish that Applicants were produced before the Trial
Court either physically or through Video Conferencing when the
application seeking extension of the period of investigation was
considered. The order dated 14.08.2024 as presently placed before this
Court does not record such production of Applicants. The issuance of a
communication to the Jail Superintendent, the refusal by certain
accused persons to accept copies and the appearance of Advocates
cannot in the facts of the present case be equated with actual
production of the concerned Applicants before the Court when the
prayer for extension was considered and order was passed. The
statutory safeguard therefore cannot be said to have been complied
with merely on the basis of these circumstances.
38 of 46
36. In view of the above attention is invited to the decision of the
Supreme Court in the case of Jigar alias Jimmy Pravinchandra Adatiya
(supra). Relevant paragraph Nos.44, 45 and 48 to 51 read as under:-
“44. As noted earlier, the only modification made by the larger
Bench in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 :
1994 SCC (Cri) 1433] to the decision in Hitendra Vishnu
Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] is about the mode of
service of notice of the application for extension. In so many
words, in para 53(2)(a) of the judgment, this Court in Sanjay
Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] held that it is mandatory to produce the accused at the
time when the Court considers the application for extension and
that the accused must be informed that the question of
extension of the period of investigation is being considered. The
accused may not be entitled to get a copy of the report as a
matter of right as it may contain details of the investigation
carried out. But, if we accept the submission of the respondents
that the accused has no say in the matter, the requirement of
giving notice by producing the accused will become an empty
and meaningless formality. Moreover, it will be against the
mandate of clause (b) of the proviso to sub-section (2) of
Section 167CrPC. It cannot be accepted that the accused is not
entitled to raise any objection to the application for extension.
The scope of the objections may be limited. The accused can
always point out to the Court that the prayer has to be made by
the Public Prosecutor and not by the investigating agency.
Secondly, the accused can always point out the twin
requirements of the report in terms of the proviso added by sub-
section (2) of Section 20 of the 2015 Act to sub-section (2) of
Section 167CrPC. The accused can always point out to the Court
that unless it is satisfied that full compliance is made with the
twin requirements, the extension cannot be granted.
45. The logical and legal consequence of the grant of
extension of time is the deprivation of the indefeasible right
available to the accused to claim a default bail. If we accept the
argument that the failure of the prosecution to produce the
accused before the Court and to inform him that the application
of extension is being considered by the Court is a mere
procedural irregularity, it will negate the proviso added by sub-
section (2) of Section 20 of the 2015 Act and that may amount
to violation of rights conferred by Article 21 of the Constitution.
The reason is the grant of the extension of time takes away the
right of the accused to get default bail which is intrinsically
connected with the fundamental rights guaranteed under Article
21 of the Constitution. The procedure contemplated by Article
21 of the Constitution which is required to be followed before
the liberty of a person is taken away has to be a fair and
reasonable procedure. In fact, procedural safeguards play an
39 of 46
important role in protecting the liberty guaranteed by Article 21.
The failure to procure the presence of the accused either
physically or virtually before the Court and the failure to inform
him that the application made by the Public Prosecutor for the
extension of time is being considered, is not a mere procedural
irregularity. It is gross illegality that violates the rights of the
accused under Article 21.
46. xxxxxx
47. xxxxxx
48. In the facts of the cases in hand, when the Special Court
considered the reports submitted by the Public Prosecutor for
grant of extension of time, the presence of the appellants was
admittedly not procured before the Special Court either
personally or through videoconference. It is also an admitted
position that information about the filing of such reports by the
Public Prosecutor was not provided to the accused. It is
mentioned in the impugned judgment that due to COVID-19, it
was not permissible to physically produce the accused before the
Special Court. Moreover, the accused were in different prisons
and, therefore, the production through videoconference would
have been very slow. Assuming that the process of production
would have been slow, that is no excuse for not procuring the
presence of the accused through videoconference.
49. Nothing is placed on record either before this Court or the
High Court to show that as per the standard operating
procedure applicable to the court concerned in January 2021
when the impugned orders were passed granting the extension,
it was not permissible to physically produce the accused before
the Special Court. There is no material placed on record to show
that technical reasons/difficulties prevented the prosecution
from producing the accused before the Special Court through
videoconference. It is not possible to accept that in January
2021 in the Court at Rajkot in the State of Gujarat, there was
any connectivity issue. In fact, admittedly, no such case was
pleaded before the High Court in the pleadings of the
respondents.
50. We must note here that the reports were submitted by the
Public Prosecutor nearly a week before the expiry of the period
of 90 days. In every case, period of seven days or more was
available for completion of the period of ninety days. The orders
were passed by the Special Court on the reports of the Public
Prosecutor on the very day on which reports were submitted.
There was no reason for such hurry. The Special Court could
have always granted time of a couple of days to the prosecution
to procure the presence of the accused either physically or
through videoconference. The accused may not be entitled to
know the contents of the report but he is entitled to oppose the
grant of extension of time on the grounds available to him in
law. In the facts of the present case, the grant of extension of
time without complying with the requirements laid down by the
Constitution Bench has deprived the accused of their right to
seek default bail. It has resulted in the failure of justice.
40 of 46
51. The orders passed by the Special Court of extending the
period of investigation are rendered illegal on account of the
failure of the respondents to produce the accused before the
Special Court either physically or virtually when the prayer for
grant of extension made by the Public Prosecutor was
considered. It was the duty of the Special Court to ensure that
this important procedural safeguard was followed. Moreover,
the oral notice, as contemplated by this Court in Sanjay Dutt
[Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433]
, was also not given to the accused.”
37. Consequently the order dated 14.08.2024 cannot be relied
upon by the prosecution for defeating the statutory right of Applicants
where the foundational procedural requirement governing the grant of
extension has not been complied with. The subsequent filing of the
Chargesheet on 05.02.2025 cannot retrospectively validate an
extension which was not validly granted in accordance with law. Once
the original statutory period expired without a legally sustainable
extension the right contemplated under Section 187(3) of the BNSS
read with Section 36-A(4) of the NDPS Act would operate in favour of
Applicants subject to the other requirements of law.
38. This Court is conscious that the prosecution has relied upon
the magnitude of the alleged offence and the large quantity of
contraband involved. Those circumstances may assume considerable
importance when an application for regular bail is considered on
merits. However they cannot be permitted to determine the question
whether the statutory period for completion of investigation stood
validly extended. The right to statutory/default bail arises from the
failure of the prosecution to comply with the time limit prescribed by
41 of 46
law. The seriousness of the allegations cannot be used to cure non-
compliance with the procedure governing extension of that period.
39. In view of the aforesaid observations and findings this Court
is satisfied that Applicants have made out a case for grant of
statutory/default bail. The extension granted by the Trial Court by
order dated 14.08.2024 cannot be relied upon against Applicants for
the purpose of defeating their statutory right in view of the failure to
establish compliance with the requirement of keeping the concerned
accused present before the Court at the stage of consideration of the
application for extension.
40. Hence, in view of above prima facie observations and
findings, Bail Applications of Applicants are allowed for default bail
subject to the following terms and conditions:-
(i) Applicants – (1) Bhimaji Parshuram Sabale; (2) Shoyeb
Saeed Shaikh; (3) Ayub Akbarsha Makandar; (4)
Cynthia @ Favour Ugababang Onyekpe; (5) Ankita
Narayanchandrda Das; (6) Sandeep Hanuman Singh
Yadav; (7) Devender Ramphool Yadav; and (8) Haider
Noor Shaikh are directed to be immediately released
from prison in connection with C.R. No. NCB/MZU/CR-
11 of 2024 (earlier N.D.P.S. C.R. No.38 of 2024
Samarth Police Station). With regard to Applicant -
42 of 46
Cynthia @ Favour Ugababang Onyekpe, it is clarified
that no bail bond in respect of an accused of a non-
bailable offence who is a foreign national such as in the
present case, shall be executed by a Licensed
Professional Bail Bondspersons save with the express
permission of the concerned Court accepting bail and
surety bond. This condition is added in view of the
decision of the Supreme Court in the case of Union of
India Vs. Chidiebere Kingsley Nawchara & Ors.17.
(ii) With regard to Applicant – Cynthia @ Favour
Ugababang Onyekpe, the concerned prosecuting Agency
shall immediately communicate this order of grant of
bail to the concerned Registration Officer appointed
under Rule 3 of the Registration of Foreigners Rules,
1992 within the meaning of the Foreigners Act, 1946.
This condition is added in view of the decision of the
Supreme Court in the case of Frank Vitus v. Narcotics
Control Bureau & Ors.18.
(ii) All Applicants are directed to be released on bail on
furnishing P.R. Bond of Rs.1,00,000/- each (Rs. One
Lakh only) with one or two sureties in the like amount;
17 SLP (Cri) No(s). 14185 of 2025
18 Criminal Appeal No.2814-2815 of 2024 decided on 06.01.2025.
43 of 46
(iii) All Applicants shall report to the Investigating Officer at
concerned Police Station, once every month, on the first
Monday of the month between 10:00 a.m. to 12:00
p.m. until commencement of trial and thereafter shall
attend all dates of hearing before the Trial Court;
(iv) All Applicants shall cooperate with the conduct of the
trial and remain present before the Trial Court on all
dates, unless specifically exempted. Applicants shall not
seek unnecessary adjournments. Any such conduct shall
entitle the prosecution to apply for cancellation of bail;
(v) Applicants shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(vi) Applicants shall not influence any of the witnesses or
tamper with the evidence in any manner;
(vii) All Applicant shall deposit their passports with the Trial
Court within a period of one week from their release
from prison;
(viii) Applicants shall keep the Investigating Officer informed
of their current residential address and mobile
telephone number and shall forthwith inform the
Investigating Officer of any change in their residential
44 of 46
address or mobile telephone number, as and when such
change occurs; and
(ix) Any breach or infraction of any of the aforesaid
conditions shall entail cancellation of the bail granted to
the Applicant.
41. It is clarified that the observations made in this order are
limited for the purpose of granting bail only and I have not made any
observations on merits of the case. The trial shall be adjudicated on
the strength of the evidence led and strictly on its own merits being
uninfluenced with any of the prima facie observations made
hereinabove in this order.
42. Bail Applications are allowed and disposed in the above
terms.
[ MILIND N. JADHAV, J. ]
43. After this order is pronounced in open Court, Mr. Halwasia,
learned Special Counsel appearing on behalf of Narcotics Control
Bureau would persuade me to stay the validity and effect of this order
for a period of four weeks to enable the Narcotics Control Bureau to
approach the Supreme Court to challenge this order. I have considered
the submissions made by Mr. Halwasia and especially when he has
persuaded me to stay the effect of the order in view of substantial
45 of 46
quantity of contraband having been seized in the present case and
passionately persuaded me to stay the order.
44. I have considered every submission made by Mr. Halwasia
and repercussion it may have otherwise in the Society and the
substantial question of law which was argued by him but considering
the fact that this case has been decided on the ground of personal
liberty of Applicants before me, I am not inclined to accept the request
of stay of this order made by Mr. Halwasia and decline the same.
45. In that view of the matter, the request made for stay of the
present order for grant of bail to the Applicants is respectfully denied.
46. I would also like to put in a word of appreciation in these
cases for the two learned respected Senior Advocates at the bar namely
Mr. Sayed and Mr. Halwasia, both of whom have been erudite in
arguing the matter and citing case laws before the Court for its proper
appreciation which have been dealt with by me in this order.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2026.10.05
16:05:40 +0530
46 of 46
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.