Default Bail | No Accused, No Extension: Delhi High Court Rules Custody Extension Without Notice as Gross Illegality Under Article 21

"Default Bail Is Not Just a Right—It's a Constitutional Guarantee Flowing from Article 21," In a powerful reaffirmation of constitutional safeguards under Article 21, the Delhi High Court granted default bail to petitioner Jaivardhan Dhawan, holding that the extension of investigation period under Section 36A(4) of the NDPS Act was granted without following the mandatory requirement of hearing or notifying the accused, and hence, was illegal, unconstitutional and void.

Justice Neena Bansal Krishna categorically observed that:“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.”

This ruling not only sets aside the extension of custody granted by the Special NDPS Court on 31.10.2025, but also invalidates the rejection of the default bail application on 13.11.2025, firmly upholding that once the statutory 180-day period expired without valid extension, the right to default bail became absolute.

"You Cannot Extend Liberty Without the Person": Presence of Accused Is Mandatory Before Custody Can Be Prolonged

The Court came down strongly on the Narcotics Control Bureau (NCB) for seeking and obtaining extension of time without producing or notifying the petitioner, either physically or through virtual mode.

Referring to the attendance sheet of the trial court, Justice Bansal Krishna pointed out:

“A bare reading of the order shows that there is no reference whatsoever to the presence or of any submission or objection raised by the Petitioner. The attendance recorded clearly states that the ‘accused persons are stated to be in JC’.”

She emphasized that presence in judicial custody (JC) does not amount to presence during the hearing for extension and observed:

“Had the Petitioner been present, the Order would have reflected that the accused was produced through JC. Non-presence and no notice is not a mere irregularity—it is a serious violation of personal liberty.”

"Default Bail Is Not Procedural—It’s a Constitutional Firewall Against Indefinite Incarceration"

While examining the scheme of Section 36A(4) of the NDPS Act and Section 187 of the BNSS, the Court noted that default bail is not a discretionary right but a legal and constitutional entitlement flowing from Article 21, which guarantees the right to life and personal liberty.

Referring to a long line of Supreme Court precedents including Sanjay Dutt v. State (1994), Uday Mohanlal Acharya v. State of Maharashtra (2001), Bikramjit Singh v. State of Punjab (2020), and Jigar v. State of Gujarat (2023), the Court observed:

“The grant of 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.”

It held that absence of the accused at the time of hearing the application for extension vitiates the entire process, and further ruled:

“The procedure contemplated by Article 21 which is required to be followed before the liberty of a person is taken away, has to be fair and reasonable.”

"Judicial Remand and Extension Are Not One and the Same": High Court Rejects NCB's Attempt to Blur Legal Lines

NCB argued that since the accused had been produced on the same day (31.10.2025) for extension of judicial custody, the requirement of presence was fulfilled. The Court flatly rejected this contention:

“It may have been done on the same day, but not at the same time. Mere production for the purpose of judicial remand does not fulfil the requirement of notifying the accused that his continued incarceration is being sought for an extended period.”

The Court was emphatic that such procedural shortcuts cannot be permitted in matters that directly impinge upon the liberty of a citizen, especially when the law mandates specific compliance.

"Cryptic SPP Report, No Substantive Grounds, No Accused—Extension Cannot Survive"

Another striking observation by the Court dealt with the nature of the report filed by the Special Public Prosecutor. The Court found that the SPP’s report seeking extension was a mere reproduction of the IO’s earlier withdrawn application, and held that:

“The SPP’s Report fails to satisfy the mandatory requirements of Section 36A(4) NDPS Act. It does not adequately show the progress of the investigation or specific reasons justifying continued detention.”

Thus, even on merits, the extension was found legally unsustainable.

"Right to Default Bail Revives Automatically—No Extension, No Detention"

The Court declared that since the extension order dated 31.10.2025 was legally non est, the statutory 180-day period ended on 11.11.2025, and the right to default bail stood crystallised on that date.

When the petitioner moved the Court on 12.11.2025 with a default bail application, he was already entitled to be released as a matter of right. The Trial Court, however, rejected his application on 13.11.2025, citing the prior extension. This reasoning, the High Court found, was fundamentally flawed.

“Since the extension was granted without producing the Petitioner or even informing him that such a request was being heard, the order cannot be sustained.”

The High Court categorically ruled that:“Not following this mandatory step makes the extension invalid and directly affects the Petitioner’s right to default Bail. He was, therefore, entitled to claim default bail as a matter of right.”

"Violation of Article 21 Cannot Be Justified as a Technical Lapse"—Delhi HC Issues Strong Reminder to Law Enforcement

In conclusion, the Delhi High Court issued a firm reminder to prosecuting agencies and trial courts alike:“The procedure contemplated under Article 21 is not a technicality—it is a constitutional shield. The accused must be present and heard when his liberty is at stake. Failing to follow such procedure invalidates the entire process.”

The petitioner, Jaivardhan Dhawan, was granted default bail on terms including a personal bond of ₹35,000, a surety of the same amount, and conditions prohibiting interference with the investigation or communication with witnesses.

Date of Decision: 11 December 2025