NDPS | Physical or Virtual Presence of Accused is Mandatory for Extension of Detention Beyond 180 Days: Andhra Pradesh HC

Andhra Pradesh High Court  granted bail to an accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, observing procedural irregularities in the extension of detention beyond the standard 180-day period. Justice Dr. V.R.K. Krupa Sagar noted that the Special Judge’s failure to secure the accused's physical or virtual presence during the hearing for extended detention rendered the extension legally deficient.

The case involved the seizure of 200 kilograms of ganja from the accused, who, along with others, was apprehended in January 2024 in Alluri Sitharama Raju District. Charged under Sections 20(b)(ii)(C) and 25 read with Section 8(c) of the NDPS Act, the accused was placed in judicial custody, which, under Section 36-A(4) of the NDPS Act, can extend up to 180 days for cases involving commercial quantities. However, when the investigation remained incomplete after 180 days, the prosecution filed a request to extend the detention period to one year.

The defense argued that the Special Judge erred by not ensuring the accused’s presence—either physical or virtual—during the hearing for detention extension, citing Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat (2022). The Supreme Court has held that the accused's physical or virtual presence is necessary when deciding on detention extension under Section 36-A(4). Furthermore, the defense pointed to violations of NDPS procedural safeguards regarding sample collection and inventory verification under Section 52A, which requires a Magistrate’s presence during sampling.

Justice Krupa Sagar emphasized the procedural lapses, particularly the absence of the accused's presence during the critical hearing on July 18, 2024, for extending detention, despite a mandatory provision requiring it. The judge found that the failure to adhere to this requirement invalidated the extension order. Additionally, the judge noted that both the bail petition under Section 167(2) (seeking default bail due to investigative delay) and the Public Prosecutor’s application for an extension were handled separately rather than concurrently, contravening the M. Ravindran v. Directorate of Revenue Intelligence (2021) ruling, which calls for simultaneous consideration.

The court also noted procedural irregularities in the handling of the seized ganja, specifically, the failure to prepare an inventory and conduct sample verification in the presence of a Magistrate. Justice Krupa Sagar remarked:

“Such procedural lapses in seizure and inventory preparation cast doubt on the case against the accused, thereby rebutting the presumption under Section 37 of the NDPS Act.”

In light of these procedural issues and prolonged detention without compliance to due process, the court granted bail to the accused, mandating a bond of Rs. 25,000 with two sureties. The accused must report to the investigating officer bi-monthly and avoid contact with case witnesses. The judgment underscores the judiciary’s commitment to procedural integrity, even in cases involving serious offenses under the NDPS Act.

Date of Decision: November 5, 2024