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2025 DIGILAW 1202 (GAU)

Amjat Ali S/o Late Kuddus Ali v. State of Assam

2025-07-29

MANISH CHOUDHURY

body2025
JUDGMENT : MANISH CHOUDHURY, J. 1. Heard Mr. J.C. Bora, learned counsel for the petitioners and Mr. R.J. Baruah, learned Additional Public Prosecutor for the respondent no. 1, State of Assam. 2. Before examining the legality and validity of the impugned Order dated 20.01.2025 passed by the learned Special Judge, Morigaon [‘the Special Court’ for short] it appears apt to delineate facts leading to the passing of the said order. 3. A First Information Report [FIR] was lodged by a Sub-Inspector of Police attached to Borchala Out Post, Morigaon under Lahorighat Police Station before the Officer In-Charge, Lahorighat Police Station, Morigaon on 24.07.2024 in reference to Borchala Out Post General Diary Entry no. 305 dated 22.07.2024. 4. In the FIR, it was inter-alia stated that an information was received from a reliable source on that day that one person named Amjat Ali had taken a huge quantity of suspected Heroin to the house of one Abdul Hasen, Village – Lahorighat in order to smuggle. Upon instruction, a Police team led by him proceeded from the Out Post to the house of Abdul Hasen with investigation kit, digital weighing machine, drug detection kit, etc. in order to conduct a search. A search was thereafter, conducted in the house of Abdul Hasen in presence of independent witnesses at around 01-20 a.m. under videography. The alleged drug peddler, Amjat Ali was found inside the house. During the search of the house of Abdul Hesen, 71 nos. of soap cases containing suspected Heroin was recovered. One heavy duty digital weighing machine was also recovered and seized from one Jinnatul Islam in presence of witnesses. Thereafter, two accused persons namely, Amjat Ali and Abdul Hasen were caught red handedly with contraband substance. 5. On weighment, net weight of suspected Heroin was found to be 850 grams without plastic soap cases and 2.862 KGs with plastic soap cases. One vehicle bearing registration no. AS-03/T-1533 was also seized along with other items. 6. On the basis of the said FIR, Lahorighat Police Station Case no. 152/2024 was registered on 24.07.2024 for offences under 21[c]/29/25 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985. After arrest, the two accused persons, namely, Amjat Ali and Abdul Hasen were forwarded to the Court of learned Chief Judicial Magistrate, Morigaon for production and on being so produced, the two petitioners were remanded to custody on 25.07.2024. 152/2024 was registered on 24.07.2024 for offences under 21[c]/29/25 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985. After arrest, the two accused persons, namely, Amjat Ali and Abdul Hasen were forwarded to the Court of learned Chief Judicial Magistrate, Morigaon for production and on being so produced, the two petitioners were remanded to custody on 25.07.2024. The petitioners have averred that since 25.07.2024, they are in custody till date. 7. On 20.01.2025, the accused-petitioners were produced before the learned Special Court from jail custody. 8. Earlier to 20.01.2025, the Investigating Officer [I.O.] of the case had submitted an application on 18.01.2025 with a prayer for extension of the period of investigation of Lahorighat Police Station Case no. 152/2024. The said application was submitted purportedly under the proviso to sub-section [4] of Section 36A of the NDPS Act. 9. In the application dated 18.01.2025, annexed as Annexure-3 to the instant criminal petition, the I.O. was found to have mentioned about the steps taken by him during the course of investigation carried out by him till 18.01.2025. The application mentioned about the articles seized by him during the course of investigation. He stated that contraband suspected to be Heroin, weighing 850 grams, was seized when a search operation was conducted in the house of Abdul Hasen [the petitioner no. 2]. The I.O. further stated that the informant and the witnesses were examined and their statements were recorded under Section 188 , BNSS . The statements of the accused persons were also recorded under Section 188 , BNSS . Samples were also drawn for sending it to the Directorate of Forensic Science, Kahilipara, Guwahati, Assam. The samples so drawn, were forwarded to the Directorate of Forensic Science, Kahilipara, Guwahati, Assam for expert opinion. Stating that the investigation was pending for non-receipt of Forensic Report from the Directorate of Forensic Science, Kahilipara, Guwahati, Assam in his application, the I.O. made a prayer not to grant bail at such stage of investigation. The I.O. had made a further prayer to extend the period of investigation till receipt of the Forensic Report in the interest of investigation of the case. The application was addressed to the learned Special Court through the PSI Court, Morigaon on 18.01.2025. 10. The I.O. had made a further prayer to extend the period of investigation till receipt of the Forensic Report in the interest of investigation of the case. The application was addressed to the learned Special Court through the PSI Court, Morigaon on 18.01.2025. 10. On the above referred application, the learned Special Court, on 18.01.2025, heard the learned Public Prosecutor and the I.O. of the case on the application praying for extension of the of the period of investigation under the proviso to Section 36A[4] of the NDPS Act. By an Order dated 18.01.2025, the learned Special Court directed to inform the learned counsel for the accused-petitioners about the prayer made by the I.O. for extension of the period of investigation. A copy of the said Order was ordered to be sent to the learned counsel for the accused-petitioners. The learned Special Court posted the case on 20.01.2025 next for hearing on the prayer for extension of the period of investigation. 11. On 20.01.2025, the learned Special Court has passed the Order, which is impugned herein. For ready reference, the relevant excerpts of the Order dated 20.01.2025 are reproduced herein :- It is submitted by the I.O. that case is now pending for receipt of FSL report from DFSL, Kahilipara and he has prayed for extension of investigation period u/s 36A[4] of NDPS Act. Under the said section which is provided that in respect of persons accused for offences involving commercial quantity the references in sub-section [2] of Section 167 , CrPC shall be construed as 180 days. It Is further provided that if it is not possible to complete the Investigation within the said period of 180 days, the special court may extend the said period up to 1 year on the report of the public prosecutor indicating the progress report of the Investigation and the specific reason for the detention of the accused beyond the said period of 180 days. In the present case, the accused are forwarded to jail on 25.07.2024. Today the accused persons completed 180 days inside the custody. The I.O. of the case has submitted a detailed report along with the case diary. The case involves recovery of huge quantity of suspected drugs. The Investigation is pending for receipt of FSL report from DFSL, Kahilipara. In the present case, the accused are forwarded to jail on 25.07.2024. Today the accused persons completed 180 days inside the custody. The I.O. of the case has submitted a detailed report along with the case diary. The case involves recovery of huge quantity of suspected drugs. The Investigation is pending for receipt of FSL report from DFSL, Kahilipara. Considering the detailed report of the I.O. and the stage of Investigation, and the fact of the case, I am of the opinion that the prayer of the I.O. may be allowed. The period of investigation is extended further for a period of 90 days, from today. The accused are informed. Inform the I.O. I.O. is asked to take necessary steps to collect the FSL report within the period. Accused are remanded to custody till 01.02.2025. 12. Section 36A of the NDPS Act has prescribed for the trial by Special Court for offences under the NDPS Act. Sub-section [1] of Section 36A is with a non-obstante clause. As per Clause-[a] of Section 36A[1], notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under the NDPS Act, which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area. 13. As per sub-section [4] of Section 36A, 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 reference in sub-section [2] of Section 167 of the Code thereof, to ‘ninety days’, where they occur, shall be construed as reference to ‘one hundred and eighty days’. The proviso to sub-section [4] of Section 36A has 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 upto 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. 14. As per the Schedule to the NDPS Act, a quantity above 250 grams of Heroin falls in the category of commercial quantity. In such view of the matter, the provisions contained in Section 36A[4] and the proviso thereof, are found applicable in the case in hand. 14. As per the Schedule to the NDPS Act, a quantity above 250 grams of Heroin falls in the category of commercial quantity. In such view of the matter, the provisions contained in Section 36A[4] and the proviso thereof, are found applicable in the case in hand. Therefore, the maximum period of ninety days fixed under Section 167 [2], CrPC has been increased to one hundred and eighty days in case of offences involving commercial quantity of Heroin under the NDPS Act. The proviso to Section 36A[4] has extended period of investigation which can go beyond one hundred and eighty days and upto one year, if the Special Court extends the period of investigation exercising the power under the proviso to Section 36A[4]. As corollary, the period of detention of an accused person arrested in connection with a case involving commercial quantity can be extended upto one year with the modified provisions of Section 167 [2], CrPC. 15. It is specifically prescribed in the proviso to sub-section [4] of Section 36A of the NDPS Act that an Order of the Special Court extending the period of investigation beyond one hundred and eighty days and upto one year must be preceded by a 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. The NDPS Act is a special enactment providing for severe punishments. 16. Reverting back to the facts of the case in hand, it is found that there was no report of the Public Prosecutor seeking extension of the period of investigation by indicating the progress of the investigation. It is only on the basis of an application submitted by the I.O. of the case, addressed directly to the Special Court through the PSI Court, the impugned Order dated 20.01.2025 came to be passed. It is reflected in the impugned Order dated 20.01.2025 itself that it was the I.O., not the Public Prosecutor, who had prayed for extension of the period of investigation beyond the period of one hundred and eighty days. The Special Court has also recorded that on 20.01.2025, the accused persons completed one hundred and eighty days in custody. It is reflected in the impugned Order dated 20.01.2025 itself that it was the I.O., not the Public Prosecutor, who had prayed for extension of the period of investigation beyond the period of one hundred and eighty days. The Special Court has also recorded that on 20.01.2025, the accused persons completed one hundred and eighty days in custody. It was only on the basis of the report of the I.O. and the stage of investigation, the Special Court, by its Order dated 20.01.2025, has allowed the prayer of the I.O. by allowing the extension of the period of investigation for a further period of ninety days from 20.01.2025. 17. The law in this connection has been settled by the Hon’ble Supreme Court of India in Sanjay Kumar Kedia vs. Narcotics Control Bureau , (2009) 17 SCC 631 . 18. The conditions to be fulfilled, as per the proviso to sub-section [4] of Section 36A of the NDPS Act, for extending the period of investigation beyond one hundred and eighty days are, [1] a report of the Public Prosecutor; [2] which indicates the progress of the investigation; [3] specifies the compelling reasons for seeking the detention of the accused beyond the period of one hundred and eighty days and [4] after notice to the accused. 19. When a statute prescribed that a particular act must be done in a specific manner, it is well-established principle that it must be done in that manner alone and in no other manner. Section 36A[4] and the proviso thereof have assigned the role of submission of a report for extending the period of investigation before the Special Court only to the Public Prosecutor and not the I.O. of a case. The provisions have assigned no role to the I.O. of the case. The application of the I.O. for extending the period of investigation beyond one hundred and eighty days cannot be a substitute for the report of the Public Prosecutor contemplated in the proviso to sub-section [4] of Section 36A of the NDPS Act. 20. The provisions have assigned no role to the I.O. of the case. The application of the I.O. for extending the period of investigation beyond one hundred and eighty days cannot be a substitute for the report of the Public Prosecutor contemplated in the proviso to sub-section [4] of Section 36A of the NDPS Act. 20. As no report was submitted by the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of one hundred and eighty days to extend the period of investigation beyond one hundred and eighty days before the learned Special Court, the learned Special Court could not have derived power, authority and jurisdiction to extend the period of investigation beyond one hundred and eighty days solely on the basis of an application submitted by the I.O. of the case. In such view of the matter, the Order dated 20.01.2025 is found unsustainable in law and the same is liable to be set aside. It is accordingly set aside. Resultantly, the instant criminal petition stands allowed.