Saddam Hussain Alias Sunny vs State Of Punjab
- Court
- Punjab and Haryana High Court
CRR 430 of 2026
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
114 CRR 430 of 2026
Reserved on:-21.09.2026
Pronounced on:11.11.2026
Uploaded on:-12.11.2026
Saddam Hussain @ Sunny ...Petitioner
Versus
State of Punjab ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Vipin Mahajan, Sr. Advocate assisted by
Ms. Gaganbir Kaur Kahlon, Advocate
for the petitioner.
Mr. M.S Bajwa, DAG, Punjab.
N.S.SHEKHAWAT , J. (Oral)
1. The petitioner has filed the present petition against
impugned order dated 03.01.2026 passed by the Special Court
Gurdaspur, whereby, the application moved by the prosecution to
extend the time to present the challan in a case FIR No. 177 dated
02.07.2025 Under Sections 21 (c), 27-A, 29, 61, 85 of NDPS Act
Police Station Dinanagar was extended. A further prayer has been
made to set aside the order dated 03.01.2026 passed by the Special
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Court, Gurdaspur/trial Court, whereby, the bail application filed by
the petitioner for grant of concession of default bail under Section
187(2) of BNSS was ordered to be dismissed.
2. Learned senior counsel for the petitioner vehemently
argued that a false FIR No. 177 dated 02.07.2025 Under Sections 21
(c), 27-A, 29, 61, 85 of NDPS Act Police Station Dinanagar was
ordered to be registered against the petitioner on the allegations that
the police party had taken into possession a car bearing registration
No. DL-2C-AA2924 and had recovered 260 grams of heroin and
Rs.1,000/- in cash. It was further alleged that car was driven by
Jakkar and the petitioner was sitting on the adjoining seat whereas the
wife of the petitioner was also sitting on the back seat. The heroin was
recovered from the bag which was kept under the driver seat. The
petitioner was immediately arrested on 02.07.2025 and was sent to
judicial custody on 04.07.2025. He further submits that the police did
not present the challan within the statutory period of 180 days which
had expired on 01.01.2026. Since, a right under Section 187(2) of
BNSS had accrued in favour of the petitioner, he moved an
application (Annexure P-2) for grant of concession of default bail to
him on 02.01.2026. On the same day, i.e., 02.01.2026, the IO also
moved an application (Annexure P-3) for grant of extension of time to
complete the investigation, which was accompanied by a report of
Deputy District Attorney (Annexure P-4). By referring to the
impugned order, learned senior counsel further submitted that no
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notice was given to the petitioner on the application filed by the
prosecution for extension of time and vide the impugned order dated
03.01.2026 learned Special Court Gurdaspur allowed the said
application without giving any opportunity to the petitioner to file
reply to the said application. Even, the petitioner was neither
produced before the Court nor was heard before granting any such
extension by the trial court. Further, on the same day, the application
of the petitioner for grant of default bail was dismissed by the trial
Court by simply observing that the application for extension in time
was filed at 10:45 a.m., whereas, the application for grant of default
bail was filed by the petitioner at 12.04 p.m. on 02.01.2026 itself.
Learned senior counsel submits that even the public prosecutor had
not applied his mind to the facts of the present case and prepared the
report (Annexure P-4) mechanically by incorporating the averments
made in the application (Annexure P-3) in his report as well. Thus,
the report prepared by the public prosecutor was bereft of his
independent opinion and no reasons were recorded for agreeing with
the application moved by the IO of the present case. Thus, the
impugned orders are liable to be set aside by this Court.
3. On the other hand, learned State counsel vehemently
opposed the submissions made by the learned senior counsel for the
petitioner on the ground that the application (Annexure P-3) was
moved by the prosecution as the investigation was not complete and
even the report had not been received by the IO from the FSL till that
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time. Even before preparing a report, the Deputy D.A., Gurdaspur had
perused the record of the IO and agreed with the averments made in
the application (Annexure P-3). In fact, the public prosecutor had
found that the reasons recorded by the IO in application (Annexure P-
3) were sufficient for making such application before the trial Court
and there was no violation of any statutory provisions. Learned State
counsel further submitted that even the application for extension of
time to present challan was moved prior in time and no right had
accrued in favour of the present petitioner.
4. I have heard learned counsel for the parties and perused
the record very carefully.
5. In the present case, the main controversy is centered
around the interpretation of Section 36A(4) of the NDPS Act as well
as Section 187(3) of BNSS and, which read as under:-
"36A(4). Offences triable by Special Courts:-
[36A. Offences triable by Special Courts.- (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),)-
(a) all offences under this 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 in which the offence has been committed or where
there are more Special Courts than one for such area, by
such one of them as may be specified in this behalf by the
Government;
(b) where a person accused of or suspected of the
commission of an offence under this Act is forwarded to
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a Magistrate under sub-section (2) or sub-section (2A) of
section 167 of the Code of Criminal Procedure, 1973 (2
of 1974), such Magistrate may authorise the detention of
such person in such custody as he thinks fit for a period
not exceeding fifteen days in the whole where such
Magistrate is a Judicial Magistrate and seven days in the
whole where such Magistrate is an Executive
Magistrate:
Provided that in cases which are triable by the Special
Court where such Magistrate considers-
(i) when such person is forwarded to him as aforesaid;
or
(ii) upon or at any time before the expiry of the period of
detention authorised by him, that the detention of such
person is unnecessary, he shall order such person to be
forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the
person forwarded to it under clause (b), the same power
which a Magistrate having jurisdiction to try a case may
exercise under section 167 of the Code of Criminal
Procedure, 1973 (2 of 1974), in relation to an accused
person in such case who has been forwarded to him
under that section;
(d) a Special Court may, upon perusal of police report of
the facts constituting an offence under this Act or upon
complaint made by an officer of the Central Government
or a State Government authorised in his behalf, take
cognizance of that offence without the accused being
committed to it for trial.
(2) When trying an offence under this Act, a Special
Court may also try an offence other than an offence
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under this Act with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of 1974), be
charged at the same trial.
(3) Nothing contained in this section shall be deemed to
affect the special powers of the High Court regarding
bail under section 439 of the Code of Criminal
Procedure, 1973 (2 of 1974), and the High Court may
exercise such powers including the power under clause
(b) of sub-section (1) of that section as if the reference to
"Magistrate" in that section included also a reference to
a "Special Court" constituted under section 36.
(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) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the offences
punishable under this Act with imprisonment for a term
of not more than three years may be tried summarily.
Section 187(3) of the BNSS (Section 167(2) Cr.P.C.),
reads as under:-
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187. Procedure when investigation cannot be completed
in twenty four hours.- (1) Whenever any person is
arrested and detained in custody and it appears that the
investigation cannot be completed within the period of
twenty-four hours fixed by section 57, and there are
grounds for believing that the accusation or information
is well-founded, the officer in charge of the police station
or the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the entries in
the diary hereinafter prescribed relating to the case, and
shall at the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time,
authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding
fifteen days in the whole; and if he has no jurisdiction to
try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days; if he is satisfied
that adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total period
exceeding-
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(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any
other offence, and, on the expiry of the said period of
ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is prepared
to and does furnish bail, and every person released on
bail under this sub-section shall be deemed to be so
released under the provisions of Chapter XXXIII for the
purposes of that Chapter;]
[(b) no Magistrate shall authorise detention of the
accused in custody of the police under this section unless
the accused is produced before him in person for the first
time and subsequently every time till the accused remains
in the custody of the police, but the Magistrate may
extend in any custody under further detention in judicial
custody on production of the accused either in person or
through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police."
6. The Honorable Supreme Court in the matter of Jigar @
Jimmy Pravinchandra Adatiya Vs. State of Gujarat, 2022 AIR
(Supreme Court) 4641 had held that the provisions of Section 167 of
Code of Criminal Procedure, which are similar to the provisions
contained under Section 187 of BNSS enables the Special Court to
extend the said period to a total of 180 days on the basis of a report of
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public prosecutor setting out the progress of investigation and
incorporating the specific reasons for detention of the accused beyond
the period of ninety days. When the Special Court exercises the power
under the provisions added to sub-section (2) Section 167 of Cr.P.C.
and extends the time up to 180 days, the accused will be entitled to
default bail only, if charge sheet is not filed within the extended
period. The Hon'ble Supreme Court in the said judgment has held as
follows:
“28. Clause (b) of sub-section (2) of section 167 of
CrPC, 1973 lays down that no Magistrate shall
authorise the detention of the accused in the custody of
the police unless the accused is produced before him in
person. It also provides that judicial custody can be
extended on the production of the accused either in
person or through the medium of electronic video
linkage. Thus, the requirement of the law is that while
extending the remand to judicial custody, the presence of
the accused has to be procured either physically or
virtually. This is the mandatory requirement of law. This
requirement is sine qua non for the exercise of the power
to extend the judicial custody remand. The reason is that
the accused has a right to oppose the prayer for the
extension of the remand. When the Special Court
exercises the power of granting extension under the
proviso to sub-section (2) of Section 20 of the 2015 Act,
it will necessarily lead to the extension of the judicial
custody beyond the period of 90 days up to 180 days.
Therefore, even in terms of the requirement of clause (b)
of sub-section (2) of section 167 of CrPC, 1973 it is
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mandatory to procure the presence of the accused before
the Special Court when a prayer of the prosecution for
the extension of time to complete investigation is
considered. In fact, the Constitution Bench of this Court
in the first part of paragraph 53(2)(a) in its decision in
the case of Sanjay Dutt holds so. The requirement of the
report under proviso added by sub-section (2) of Section
20 of the 2015 Act to clause (b) of sub-section (2) of
section 167 of CrPC, 1973 is two-fold. Firstly, in the
report of the Public Prosecutor, the progress of the
investigation should be set out and secondly, the report
must disclose specific reasons for continuing the
detention of the accused beyond the said period of 90
days. Therefore, the extension of time is not an empty
formality. The Public Prosecutor has to apply his mind
before he submits a report/an application for extension.
The prosecution has to make out a case in terms of both
the aforesaid requirements and the Court must apply its
mind to the contents of the report before accepting the
prayer for grant of extension.
29. As noted earlier, the only modification made by the
larger Bench in the case of Sanjay Dutt to the decision in
the case of Hitendra Vishnu Thakur is about the mode of
service of notice of the application for extension. In so
many words, in paragraph 53(2)(a) of the Judgment, this
Court in the case of Sanjay Dutt 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
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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 167 of CrPC, 1973. 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 proviso added by
sub-section (2) of Section 20 of the 2015 Act to sub-
section (2) of section 167 of CrPC, 1973. 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.
30. 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
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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 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”.
7. The Hon'ble Supreme Court also held in the matter of
Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer,
Narcotic Control Bureau and another, 2010(1) R.C.R. (Criminal),
942 as follows:-
“8. The Terrorist and Disruptive Prevention Act, 1987
(hereinafter called the 'TADA') and the Act are two such
special legislations. Section 36A (4) of the Act in so far
as is relevant, reads as under:
"Section 36 A.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
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(2) xxxx
(3) xxxx
(4) In respect of persons accused of an offence
punishable under Section 19 or Section 24 or section 27
A 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 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) xxxx more time to investigate a matter and to file
their complaint or charge-sheets and such provisions
have been made under special statutes.
"9. The Terrorist and Disruptive Prevention Act, 1987
(hereinafter called the 'TADA') and the Act are two such
special legislations. Section 36A (4) of the Act in so far
as is relevant, reads as under :
10. The maximum period of 90 days fixed under Section
167 (2) of the Code has been increased to 180 days for
several categories of offences under the Act but the
proviso authorizes a yet further period of detention
which may in total go upto one year, provided the
stringent conditions provided therein are satisfied and
are complied with. The conditions provided are :
(1) a report of the public prosecutor,
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(2) which indicates the progress of the investigation, and
(3) specifies the compelling reasons for seeking the
detention of the accused beyond the period of 180 days,
and
(4) after notice to the accused”.
8. Now adverting to the facts of the present case, it is
apparent that the FIR in the present case was registered on 02.07.2025
and the petitioner was also arrested on 02.07.2025. He was sent to
judicial custody on 04.07.2025 and the period of 180 days had
expired on 01.01.2026. The prosecution moved an application for
extension of time for investigation (Annexure P-3) and stated that the
chemical report had not been received from the FSL, Amritsar, till
date and prayed for extension of time. Even, it was accompanied by a
report of additional PP of the Court (Annexure P-4). However, from
the perusal of the report of the public prosecutor, it can be easily seen
that there was no application of mind on the part of public prosecutor.
It neither mentions the progress of investigation nor any compelling
reasons have been mentioned, which require an extension of custody
beyond 180 days. Apart from that, from the impugned order dated
03.01.2026 also, it stands established that while extending the period
for investigation in the FIR, no notice was issued to the petitioner nor
the presence of either the petitioner or his counsel is reflected in the
order.
9. In view of above discussion and the law laid down by
the Hon’ble Supreme Court, The impugned order dated 03.01.2026
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whereby the IO of the case was granted one month’s more time to
present the challan is ordered to be set aside. Since, the challan was
to be presented by 01.01.2026 and the petitioner had sought default
bail on 02.01.2026, an indefeasible right had accrued in favour of
petitioner for grant of default bail. Therefore, the order dated
03.01.2026 whereby the bail was declined to the petitioner is also
ordered to be set aside and the petitioner is ordered to be released on
bail to the satisfaction of trial Court/Duty Magistrate concerned
subject to the following conditions:-
(i) The petitioner shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with the facts of the case, so as to dissuade
him to disclose such facts to the Court or to any other
authority.
(ii) The petitioner shall remain present before the Court
on the dates fixed for hearing of the case.
(iii) The petitioner shall not absent himself from the
Court proceedings except on the prior permission of the
Court concerned.
(iv) The petitioner shall surrender his passport, if any, (if
already not surrendered), and in case he is not holder of
the same, he shall swear an affidavit to that effect.
(v) The petitioner shall also file his affidavit before the
concerned Court, mentioning his ordinary place of
residence and number of mobile phone, which shall be
used by him during the pendency of the trial. In case of
change of place of residence/mobile number, he shall
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share the details with the concerned Court/learned Trial
Court.
(vi) In case, the petitioner gets involved in any other
criminal activity, during the pendency of the trial, it shall
be viewed seriously and the prosecution shall be at
liberty to move an appropriate application for
cancellation of bail granted to the present petitioner.
( vii) The concerned Court may insist two heavy local
surties and may also impose any other condition, in
accordance with law, while accepting the bails bonds
and surety bonds of the petitioner.
st
(viii) The petitioner shall report every 1 Monday in
English calander month before the concerned SHO till
the conclusion of the trial and SHO shall mark his
presence by making an entry in the Rojnamcha. In case,
st
he does not report on every 1 Monday before the
concerned SHO, it shall be viewed seriously and the
concession granted to him shall be liable to be
cancelled and the State of Punjab shall be at liberty to
move an appropriate application in this regard.
11.11.2026 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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