Punjab and Haryana High Court: Accused entitled to default bail when extension of NDPS investigation was granted without notice or hearing

On 22 December 2025, pursuant to secret information, the police allegedly recovered 300 Pentazocine injections and 20 Binorphine injections from Sanjay and Krishan Kumar.

During investigation, Akash and Vishal were arrested on 24 and 25 December 2025 respectively in connection with FIR No. 442 dated 22 December 2025, registered under Sections 22-C, 22-B and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station Hodal, District Palwal.

Akash was remanded to judicial custody on 26 December 2025, while Vishal was remanded to judicial custody on 27 December 2025.

The statutory period of 180 days expired on 22 June 2026 for Akash and 23 June 2026 for Vishal, without presentation of the challan.

The prosecution sought an extension of time to complete the investigation, citing the need to obtain mobile-phone data, call-detail records and records from the manufacturer of the recovered injections.

The Additional Sessions Judge granted a further three-month extension on 29 May 2026.

However, notice of the extension application was issued only to the accused being proceeded against in separate remand proceedings; Akash and Vishal, whose remand proceedings were separately maintained, were neither noticed nor heard.

Their applications for default bail, filed on 25 June 2026 before presentation of the challan, were dismissed on 1 July 2026.

The charge-sheet was prepared on 24 July 2026 and presented on 3 August 2026.

1. Whether the three-month extension granted on 29 May 2026 under the proviso to Section 36-A(4) of the NDPS Act was valid against Akash and Vishal when they were neither given notice nor afforded an opportunity of hearing.

2. Whether Akash and Vishal acquired an indefeasible right to default bail upon expiry of 180 days and whether the subsequent filing of the charge-sheet could defeat that right.

3. Whether the order dated 1 July 2026 dismissing their applications for default bail was sustainable.

Section 36-A(4) of the NDPS Act permits detention beyond the ordinary statutory period of 180 days in cases involving commercial quantity only upon satisfaction of the prescribed safeguards, including consideration of the Public Prosecutor’s report and an opportunity to the accused to contest the request for extension.

Relying on Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat, (2023) 6 SCC 484, the Court held that the accused’s presence must be secured, physically or through video-link, when an extension application is considered, because the accused has a right to oppose it.

Under Section 187(3) of the BNSS, 2023, an accused obtains an indefeasible right to default bail when the prescribed period expires without filing of the final report, provided the right is availed before presentation of the charge-sheet.

Applying Enforcement Directorate, Government of India v. Kapil Wadhawan, 2023 (2) RCR (Criminal) 474, the Court held that subsequent filing of the charge-sheet cannot defeat a default-bail right already accrued and exercised.

Although the recovery involved commercial quantity and the prosecution could seek detention beyond 180 days, the extension order had to comply with the mandatory procedural safeguards under Section 36-A(4) of the NDPS Act.

The record established that notice of the extension application was issued only in the remand proceedings concerning Sanjay and Krishan; Akash and Vishal were being proceeded against separately and were neither notified nor represented when the application was heard on 29 May 2026.

The fact that the prosecution’s application was composite and related to the same FIR could not substitute for individual notice and an opportunity of hearing to accused persons whose custody was sought to be extended.

Consequently, the extension order could not operate against Akash and Vishal.

Their 180-day periods had expired by 22 and 23 June 2026, respectively, and they applied for default bail on 25 June 2026, before the charge-sheet was filed.

Their statutory right had therefore accrued and been availed of; the charge-sheet filed subsequently could not retrospectively validate the defective extension order or extinguish that right.

It set aside the extension order dated 29 May 2026 insofar as it affected Akash and Vishal, and quashed the order dated 1 July 2026 rejecting their default-bail applications.

The petitioners were held entitled to default bail under Section 187(3) of the BNSS and directed to be released upon furnishing personal and surety bonds to the satisfaction of the trial Court or Duty Magistrate, subject to their not being required in any other case.

The Court clarified that it had expressed no opinion on the merits of the prosecution case and that the subsequent charge-sheet was to be dealt with by the trial Court in accordance with law.