Court’s decision
The Delhi High Court allowed a writ petition filed by an accused under the NDPS Act and set aside the trial court’s order granting extension of time to complete investigation as well as the order rejecting default bail. The Court held that grant of extension under Section 36A(4) of the NDPS Act without producing the accused, either physically or virtually, is a serious violation of Article 21 and renders the extension invalid. As a result, the accused’s indefeasible right to default bail crystallised on expiry of 180 days, entitling him to statutory bail as a matter of right .
Facts
The case arose from an investigation initiated by the Narcotics Control Bureau in January 2025 following seizure of a parcel booked through a courier company, which allegedly contained 3.6 kilograms of codeine phosphate tablets, a commercial quantity, concealed inside furniture items destined for the United States. During the course of investigation, the petitioner and other co-accused were intercepted in May 2025 and issued notices under the NDPS Act.
The petitioner was arrested on 15 May 2025 and remained in judicial custody thereafter. A search of his residence allegedly led to recovery of 29.89 grams of suspected narcotic or psychotropic tablets, which the petitioner disputed as planted. Further disclosures by co-accused led to additional recoveries from different locations, involving significant quantities of contraband and other accused persons.
Under Section 36A(4) of the NDPS Act, the statutory period for completion of investigation was 180 days, expiring on 11 November 2025. No complaint or chargesheet was filed within this period.
On 31 October 2025, ten days before expiry of the statutory period, the Special Public Prosecutor filed a report seeking extension of time to complete investigation. The Special Judge granted an extension of 120 days on the same day. The petitioner asserted that no notice was given to him and he was not produced before the court when the extension application was considered. Being unaware of the extension, the petitioner applied for default bail on 12 November 2025, which was dismissed by the trial court on 13 November 2025 solely on the ground that extension had already been granted.
Issues
The primary issues before the High Court were whether the extension of time to complete investigation under Section 36A(4) NDPS Act was validly granted without producing the accused or affording him an opportunity of hearing, and whether, in the absence of a valid extension, the petitioner had acquired an indefeasible right to default bail upon expiry of 180 days from the date of arrest.
Petitioner’s arguments
The petitioner contended that the extension order dated 31 October 2025 was void ab initio, as it was passed without notice and without producing him before the Special Court, in direct violation of settled Supreme Court jurisprudence. He relied on decisions holding that production of the accused at the time of considering extension is a mandatory safeguard, failure of which strikes at the root of personal liberty under Article 21.
It was argued that the report filed by the Special Public Prosecutor was also cryptic and substantially identical to the earlier application withdrawn due to defects. Since no valid extension existed, the statutory period expired on 11 November 2025, and the petitioner’s application for default bail on the following day was lawful and timely. Continued detention thereafter, it was submitted, was unconstitutional.
Respondent’s arguments
The Narcotics Control Bureau opposed the petition, contending that the extension was granted within the statutory period on a proper report of the Special Public Prosecutor, and that the petitioner was present through video conferencing when the extension application was considered. It was argued that the right to default bail does not arise automatically and stands extinguished once a valid extension is granted prior to expiry of the statutory period. The respondent further submitted that the investigation involved an interstate organised narcotics racket, justifying continued custody.
Analysis of the law
The Court examined the statutory scheme under Section 187 of the Bharatiya Nagarik Suraksha Sanhita (corresponding to Section 167 CrPC) read with Section 36A(4) of the NDPS Act, which permits extension of investigation beyond 180 days only on a report of the Public Prosecutor indicating progress of investigation and specific reasons for continued detention.
The Court reiterated that the concept of default bail is not procedural largesse but a substantive right flowing from Article 21, intended to prevent indefinite incarceration during investigation. Extension of time directly deprives an accused of this right and therefore must strictly comply with mandatory safeguards, including production of the accused at the time the request is considered.
Precedent analysis
The High Court relied extensively on Supreme Court authorities including Sanjay Dutt, Uday Mohanlal Acharya, S. Kasi, Bikramjit Singh, and CBI v. Kapil Wadhawan, which underscore the constitutional foundation of default bail. Particular reliance was placed on Jigar v. State of Gujarat, where the Supreme Court held that non-production of the accused while granting extension of time is not a curable irregularity but a gross illegality violating Article 21. These principles were applied squarely to the present case.
Court’s reasoning
On examining the extension order dated 31 October 2025, the Court found no reference whatsoever to the presence of the petitioner, nor any indication that he was informed that an application for extension was being considered. The order merely recorded that the accused were “in judicial custody”, which the Court held was insufficient to infer compliance with the mandatory requirement of production.
The Court rejected the respondent’s argument that the petitioner’s production for routine remand on the same day satisfied the legal requirement. It held that production must be at the time when the extension application is considered, not at some other point during the day. Absence of the accused and lack of notice, the Court observed, is not a technical lapse but a substantive violation that invalidates the extension.
Once the extension was held invalid, the Court concluded that the statutory period expired on 11 November 2025 without a chargesheet. Consequently, the petitioner’s right to default bail crystallised automatically, and the trial court’s rejection of default bail was legally unsustainable.
Conclusion
The Delhi High Court set aside the orders dated 31 October 2025 and 13 November 2025, held the petitioner entitled to default bail, and directed his release on statutory bail subject to conditions including furnishing of bond and surety, regular appearance before court, and non-tampering with evidence. The petition was allowed in full, reaffirming the constitutional primacy of personal liberty in NDPS investigations .
Implications
This judgment is a strong reaffirmation that procedural safeguards in NDPS cases are not dispensable, even in investigations involving commercial quantities and organised networks. It sends a clear message that courts must scrupulously ensure production of the accused before granting extensions of investigation, failing which the prosecution risks losing custody altogether. The ruling strengthens the jurisprudence that default bail is an enforceable constitutional right, not a discretionary indulgence.
Case law references
- Jigar v. State of Gujarat – Held that non-production of accused at the time of granting extension violates Article 21 and vitiates the extension.
- Sanjay Dutt v. State – Explained the nature and enforceability of the right to default bail.
- Uday Mohanlal Acharya v. State of Maharashtra – Recognised default bail as an indefeasible right upon expiry of statutory period.
- S. Kasi v. State – Reiterated primacy of personal liberty in interpretation of Section 167 CrPC.
- Bikramjit Singh v. State of Punjab – Linked default bail directly with Article 21.
FAQs
1. Is production of the accused mandatory when extension of investigation is sought under NDPS Act?
Yes. The accused must be produced physically or virtually so that he can oppose the request for extension.
2. Can an extension order be sustained if the accused was not informed?
No. Such an extension is invalid and violates Article 21.
3. When does the right to default bail arise?
On expiry of the statutory period for investigation without a valid extension or filing of chargesheet.
