Section 187(3) BNSS | Extension Of Time Under Section 36-A(4) NDPS Act Without Notice To Accused Cannot Defeat Right To Default Bail: Punjab & Haryana High Court

"The safeguard embodied in Section 36-A(4) is not a mere procedural formality, but a substantive statutory protection before the period of detention beyond the prescribed period can lawfully be continued." Punjab and Haryana High Court, in a significant ruling dated 17 September 2026, held that an extension of the statutory period for filing a challan under Section 36-A(4) of the NDPS Act cannot be granted to the prosecution without affording the accused an effective opportunity of being heard.

A bench of Justice Virinder Aggarwal observed that once the statutory period expires, the indefeasible right to default bail under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, accrues to the accused, and any subsequent extension granted without compliance with mandatory procedural safeguards cannot efface such a right.

The petitioner was arrested on 22 January 2026 in connection with an FIR involving the recovery of 1 kilogram 523 grams of heroin. Following the expiry of the 180-day statutory period without the presentation of a challan, the petitioner filed for default bail. The trial court dismissed the application, noting that the prosecution had secured an extension for the presentation of the challan via an order dated 04 August 2026, leading the petitioner to approach the High Court.

The primary question before the court was whether an extension of time granted under Section 36-A(4) of the NDPS Act, without providing the accused with prior notice and an effective opportunity to represent their case, can legally operate to defeat the indefeasible right to default bail. The court was also called upon to determine whether such an extension order constitutes a valid procedural bar under Section 187(3) of the BNSS.

Nature of Statutory Safeguards

The court emphasized that the requirement of notice to the accused before extending the period of investigation is a mandatory statutory safeguard. The bench noted that the legislature, by incorporating such provisions, intended to balance the state’s investigative needs with the personal liberty of the accused.

"The safeguard embodied in Section 36-A(4) is not a mere procedural formality, but a substantive statutory protection before the period of detention beyond the prescribed period can lawfully be continued."

Invalidity of Ex-Parte Extensions

The court observed that the record clearly demonstrated the petitioner was not afforded any meaningful opportunity to oppose the prosecution's application for extension. Relying on the principles laid down in Sanjay Dutt v. State through CBI, the court reiterated that the right to default bail is an indefeasible right that matures upon the expiration of the statutory period if no challan is filed.

Extension Granted Without Compliance Cannot Defeat Bail

The bench held that an extension order secured behind the back of the accused is legally unsustainable and cannot retrospectively cure the failure of the prosecution to file the charge sheet within the time prescribed by law. The court held that the trial court committed a material jurisdictional error by relying on a flawed extension order to deny the petitioner his statutory remedy.

"The denial of statutory bail on the basis of an extension order passed without effective notice to the petitioner cannot be sustained merely by reference to the subsequent continuation of the prosecution proceedings."

The High Court allowed the revision petition and set aside the order of the Additional Sessions Judge. The petitioner was granted default bail under Section 187(3) of the BNSS, subject to stringent conditions, including the requirement that the petitioner shall not tamper with evidence, influence witnesses, or leave the country without judicial permission. The petitioner is also required to provide comprehensive details regarding their residence, bank accounts, and identification documents to ensure court appearance.

Date of Decision: 17 September 2026