NDPS | Failure to Produce Accused Before Court While Extending Remand Is Not a Procedural Irregularity, But a Gross Illegality: Andhra Pradesh High Court Grants Default Bail

“The failure to procure the presence of the accused either physically or virtually... is gross illegality that violates the rights of the accused under Article 21.” — In a significant ruling Andhra Pradesh High Court held that the extended remand of an accused in an NDPS case, without ensuring his presence during the hearing, is unconstitutional and cannot sustain. Dr. Justice Y. Lakshmana Rao allowed the Criminal Revision filed by the accused, setting aside the 300-day remand extension and granting him bail with stringent conditions.

“Default Bail Cannot Be Denied Through Illegality”: High Court Says Accused Must Be Heard Before Extension of Custody

In Gollori Mohan Rao v. State of Andhra Pradesh, the petitioner challenged a remand extension order passed by the Special Judge under the NDPS Act at Visakhapatnam, extending judicial custody by 300 days under Section 36A(4) of the NDPS Act. Crucially, the accused was neither physically produced nor produced through video conferencing at the time of passing the order — a fact that drew serious constitutional concerns from the High Court.

Relying on the Supreme Court’s authoritative ruling in Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 SCC OnLine SC 973, the Court held:

“The failure to procure the presence of the accused either physically or virtually... is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21 of the Constitution.” [Para 10–11]

The Court emphasized that since default bail is intrinsically connected with personal liberty, any extension of remand without hearing the accused offends the fair procedure mandate under Article 21.

“Violation of Section 52A of NDPS Act Renders Investigation Procedurally Infirm”: High Court Criticises Lapses in Sampling and Certification

Apart from the remand violation, the High Court took strong exception to the non-compliance with Section 52A of the NDPS Act, which mandates that samples from seized narcotics be drawn and certified in the presence of a Magistrate within 30 days of seizure.

In the instant case, the samples were admittedly drawn by police officers at the scene of arrest, and no certification from the Magistrate was obtained. The Court noted:

“Given the stringent procedural framework of the NDPS Act, any extension of time... in the face of such illegality would amount to judicial endorsement of a flawed and careless investigation.” [Para 4]

Referring to the Supreme Court’s decision in Union of India v. Mohanlal, (2016) 3 SCC 379, the Court reiterated that storage, inventory, and certification of seized drugs must follow Standing Order No. 1 of 1989. Any deviation undermines the sanctity of the prosecution’s evidence:

“The Central and State Governments must set up proper vaults with double-locking systems... sampling must be under supervision of Magistrate.” [Para 12]

“No Gazetted Officer, No Magistrate Present During Search and Seizure”: Section 50 of NDPS Act Also Violated

The Court also found that search and recovery of contraband was not conducted in the presence of a Gazetted Officer or Magistrate, violating mandatory safeguards under Section 50 of the NDPS Act.

Quoting Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380, the Court held:

“Non-compliance with the mandatory procedure under Section 50 of the NDPS Act is fatal to the prosecution case... the appellant is entitled to claim its benefit.” [Para 14–15]

The High Court found no evidence to suggest the accused was informed of his right to be searched before a gazetted officer or Magistrate, rendering the search constitutionally invalid.

“Remand Extension Filed on 165th Day – Procedural Delay Strengthens Right to Bail”

The Court also flagged the delay in seeking remand extension. As per guidelines laid down in Suresh Shyamrao Pawar v. Union of India, 2022 (2) ALD (Crl.) 348 (TS), such applications must be filed no later than the 160th day.

In this case, the extension was sought on the 165th day, in clear violation of the directive:

“Procedural delay further reinforces right to bail.” [Para 17]

This, combined with the absence of physical or virtual production of the accused, made the remand order fundamentally unsustainable.

“Extended Remand Without Hearing Accused Is an Affront to Article 21”: High Court Reiterates Liberty Principles

The Court noted that procedural safeguards — especially under harsh statutes like the NDPS Act — exist to prevent abuse of liberty and ensure accountability in investigations. The petitioner had been remanded without appearance, without sample certification, and without proper procedural oversight.

“It is not a mere procedural irregularity... it is gross violation of the fundamental right of the accused.” [Para 16]

Justice Y. Lakshmana Rao underscored that even in NDPS cases, the rule of law and Article 21 protections cannot be compromised.

Bail Granted with Conditions After Setting Aside Remand

In conclusion, the Court allowed the Criminal Revision Case, set aside the order dated 08.09.2025 passed by the Special Judge, and directed release of the petitioner on bail of ₹25,000 with two sureties.

The bail was granted subject to the following key conditions:

• Weekly appearance before the Station House Officer, Pedabayalu Police Station.

• Bar on leaving Andhra Pradesh without permission.

• Full cooperation with investigation and no threats to witnesses.

• Surrender of passport or affidavit if no passport is held.

The Court made it clear that the remand order was fundamentally unconstitutional, and therefore the accused was entitled to release under Article 21 and relevant provisions of the BNSS and NDPS Act.

Date of Decision: 26th September 2025