Extension of NDPS Investigation Without Producing the Accused is Void: Default Bail as an Article 21 Right under BNSS

I. Introduction

The Delhi High Court’s decision in Jaivardhan Dhawan v. Narcotics Control Bureau, 2025 DHC 11203, is a significant addition to the jurisprudence on default (statutory) bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The judgment squarely addresses a recurring but often under-litigated issue: What happens if a Special Court extends the time for investigation under Section 36A(4) NDPS Act without producing the accused or informing him that such an extension is being considered?

The Court holds in categorical terms that:

• Non-production of the accused and non-intimation to him at the time of considering the prosecution’s request for extension of the investigation period is not a mere procedural irregularity, but a “gross illegality” violating Article 21.
• An extension of time for investigation granted in such circumstances is invalid.
• Once the statutory period under Section 36A(4) NDPS Act (read with Section 187(3) BNSS) expires without a valid extension and before the filing of the chargesheet/complaint, the accused’s indefeasible right to default bail arises and must be honoured.

The decision thus operationalizes the Supreme Court’s rulings in Sanjay Dutt and especially Jigar v. State of Gujarat in the NDPS context under the new BNSS regime, and lays down a clear procedural safeguard that trial courts and investigative agencies must observe.

II. Factual Background and Procedural Timeline

1. The NDPS Case and Arrest

The prosecution case originates from a raid on 09.01.2025, when, acting on secret information, the Narcotics Control Bureau (NCB) examined a DHL parcel at Kirti Nagar, New Delhi, bearing AWB No. 2980318180. The parcel, allegedly containing muddas (stool chairs) destined for the United States, was found to conceal:

• 3.6 kg of Codeine Phosphate green-coloured tablets, which is a commercial quantity under the NDPS Act.

Subsequent investigation led to:

• Interception of the petitioner, Jaivardhan Dhawan, and co-accused Amarjeet Kumar Sinha on 14.05.2025.
• Issuance of notices under Section 67 NDPS Act.
• Search of the petitioner’s residence allegedly yielding 29.89 grams of suspected psychotropic/narcotic tablets on 14.05.2025.
• Formal arrest of the petitioner on 15.05.2025, after being taken into custody on 14.05.2025.

Further disclosures from other accused (Anu Singh, Gurmeet Singh, Ankul Kumar, and others) led to larger recoveries of white and green tablets, pseudoephedrine, and Tramadol from locations in Ghaziabad, Haridwar, and Dehradun, allegedly tracing back to a supplier, Anupam Shukla.

2. The 180-Day Period and Extension Applications

The crucial procedural dates are:

• 15.05.2025 – Petitioner formally arrested and remanded. The 180-day period under Section 36A(4) NDPS Act commences from this date.
• 11.11.2025 – Date of expiry of the 180-day statutory period, as per the petitioner’s calculation, and not disputed by the Court.

Events prior to expiry:

1. 30.10.2025: The Investigating Officer (IO) files an application directly seeking 120 days’ extension to complete the investigation and file complaint/chargesheet. This application is withdrawn on the same day due to “technical defects” because it was not filed through the Special Public Prosecutor (SPP) as mandated by Section 36A(4) NDPS Act.
2. 31.10.2025:
   • The Special Public Prosecutor files a Report under Section 36A(4) NDPS Act, seeking a further 120 days’ extension, even though 10 days still remained before the 180 days would expire.
   • The Special Judge (NDPS) allows the SPP’s report on the same day and grants the requested extension.
   • On this date, the petitioner is produced for the purpose of judicial custody extension up to 14.11.2025, but according to the petitioner, he is neither notified of nor present during the consideration of the extension report.

3. Default Bail Application and Rejection

• No chargesheet/complaint was filed up to 11.11.2025.
• 12.11.2025: The petitioner files an application for default bail under Section 187(3) read with Section 483 BNSS and Section 36A(4) NDPS Act, invoking the expiry of the 180-day period.
• 13.11.2025: The Trial Court dismisses the default bail application, relying on its earlier Order dated 31.10.2025 granting the 120-day extension.

4. Writ Petition Before the High Court

The petitioner approaches the Delhi High Court through a writ petition under Articles 226 and 227 of the Constitution read with Section 528 BNSS, seeking:

• Quashing of the Order dated 31.10.2025 granting extension of time to file the complaint/chargesheet; and
• Setting aside the Order dated 13.11.2025 rejecting his default bail application; and
• Grant of default/statutory bail.

III. Issues Before the Court

Justice Neena Bansal Krishna identifies the core legal question (para 32):

1. Validity of the Extension Order: Whether the Order dated 31.10.2025 extending the investigation period beyond 180 days under Section 36A(4) NDPS Act, without notice to or production of the petitioner, is legally valid.
2. Entitlement to Default Bail: If the extension is invalid, whether the petitioner acquired an indefeasible right to default bail upon expiry of 180 days on 11.11.2025, and whether the rejection of default bail on 13.11.2025 was illegal.

IV. Summary of the Judgment

The Court holds:

• The extension Order dated 31.10.2025 was passed without producing the accused and without informing him that an extension request was being heard.
• This omission violates the mandatory requirement, as explained by the Supreme Court in Sanjay Dutt and Jigar v. State of Gujarat, that an accused must be present (physically or virtually) and informed when extension of time for investigation is considered.
• Non-production and non-intimation in such a situation is not a mere procedural irregularity but a “gross illegality” infringing Article 21, which renders the extension Order invalid (paras 53–54).
• With no valid extension in place, and the 180-day period having expired on 11.11.2025 without a chargesheet/complaint, the petitioner’s indefeasible right to default bail had accrued when he applied on 12.11.2025.
• Therefore, the Order dated 13.11.2025 rejecting default bail was also unsustainable.

Consequently, the High Court:

• Sets aside both Orders dated 31.10.2025 and 13.11.2025 (paras 57–58).
• Grants default/statutory bail to the petitioner, subject to standard conditions such as furnishing a personal bond and surety, attending Court, not tampering with evidence or influencing witnesses, and intimating any change of address (para 59).

V. Legal Framework

1. Section 187 BNSS (Earlier Section 167 CrPC)

Section 187 BNSS governs remand and detention during investigation. Its core features, as reproduced in para 33, are:

• Initial detention up to 15 days in total custody (police and/or judicial).
• Beyond 15 days, total detention capped at:
  • 90 days – for offences punishable with death, life imprisonment, or imprisonment for not less than ten years.
  • 60 days – for other offences.
• On expiry of these periods, the accused “shall be released on bail” if he is prepared to and does furnish bail. This is the statutory basis for what is called default or statutory bail.

2. Section 36A(4) NDPS Act

Section 36A(4) is a special provision overriding the normal 60/90 day periods in serious NDPS cases. As set out in para 34:

• For offences under Sections 19, 24, 27A or involving commercial quantity:
  • The reference to “90 days” in Section 167(2) CrPC (now Section 187 BNSS) is to be read as “180 days”.
• Proviso: If investigation cannot be completed within 180 days, the Special Court may extend this period up to one year, but only:
  • “on the report of the Public Prosecutor”,
  • “indicating the progress of the investigation”, and
  • stating the “specific reasons for the detention of the accused beyond the said period of one hundred and eighty days”.

Thus, two preconditions emerge for a valid extension under Section 36A(4):

1. A proper report by the Public Prosecutor (not the IO), independently indicating progress and reasons; and
2. Compliance with fair procedure, including production/notice to the accused as required by Article 21 and interpreted by the Supreme Court.

3. Concept of “Default Bail”

The judgment (paras 35–40) explains that the term “default bail” is a judicially coined expression, not a statutory phrase. It refers to bail granted:

• Not on the merits of the accusation,
• But because the prosecution defaulted in completing investigation and filing the chargesheet/complaint within the prescribed period (60/90/180 days),
• Provided the accused applies for bail and is ready to furnish surety.

This right flows from the statutory mandate in Section 187(3) BNSS and from Article 21 of the Constitution, emphasizing that no person can be deprived of liberty except by a “fair, just and reasonable” procedure.

VI. Precedents Cited and Their Influence

1. Default Bail as a Mandatory and Indefeasible Right

(a) Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC 77

Relied upon in para 37, this case reiterates that:

• After the statutory period (60/90 days) expires, the Magistrate has no authority to continue detention if the accused is ready to furnish bail.
• The expression “shall be released on bail” is mandatory.
• Detention beyond the statutory period is illegal if bail is sought and the accused is ready to furnish surety.

(b) Uday Mohanlal Acharya v. State Of Maharashtra, (2001) 5 SCC 453

Cited in para 38, Uday Acharya clarifies:

• The right to be released on default bail is an “indefeasible right” that accrues after the maximum permissible detention period.
• It can be denied only where the accused does not furnish bail or fails to exercise the right before the filing of the chargesheet.
• The proviso to Section 167(2) CrPC (now Section 187 BNSS) is a beneficial provision designed to prevent “indefinitely prolonging the investigation” and illegal custody.

(c) S. Kasi v. State, (2021) 12 SCC 1

In para 39, the Court cites S. Kasi for the proposition that Section 167 CrPC (now paralleled by Section 187 BNSS) gives primacy to personal liberty. The Supreme Court underlined that:

• If the chargesheet is not filed within 60 or 90 days, the accused cannot be kept in further custody under that provision.
• These time limits are not technicalities, but essential safeguards to protect personal liberty.

(d) Bikramjit Singh v. State Of Punjab, (2020) 10 SCC 616 and CBI v. Kapil Wadhawan, (2024) 3 SCC 734

As noted in para 40, these decisions reaffirm that:

• Default bail is intrinsically linked to Article 21; it is not a mere statutory concession.
• Any interpretation undermining default bail would be unconstitutional as it would dilute the protection of personal liberty.

2. Extinguishment of the Right Once Chargesheet is Filed

(e) Sanjay Dutt v. State through CBI, (1994) 5 SCC 410

In para 43, the Court relies on the Constitution Bench in Sanjay Dutt to explain:

• The right to default bail is indefeasible but time-bound:
  • It is enforceable only prior to the filing of the chargesheet/challan.
  • If not availed of before the chargesheet is filed, the right is extinguished.
• Once the chargesheet is filed, further custody is governed not by Section 167/187 but by other provisions, and bail must then be considered on merits.
• If an application for default bail and a prosecution request for extension (under a special law) are both pending, the Court must decide them together; bail can be granted only if the extension prayer is rejected.

This framework underpins the High Court’s finding that:

• The petitioner’s right to default bail arose on 11.11.2025 when no valid extension existed and no chargesheet was filed.
• He acted in time by filing the application on 12.11.2025, prior to any chargesheet.

3. Requirement of Notice/Production for Extension Orders

(f) Sanjay Dutt (on Notice under TADA)

Para 45 quotes Sanjay Dutt’s interpretation of Section 20(4)(bb) of TADA (a provision analogous in structure to Section 36A(4) NDPS Act):

• The requirement of “notice” to the accused before granting extension of time for investigation does not mean a formal written notice.
• What is essential is that the accused be:
  • Produced before the Court in terms of Section 167(1) CrPC; and
  • Informed that the Court is considering a request for extension.
• Thus, production and intimation function as the operative form of notice.

(g) Jigar v. State of Gujarat, (2023) 6 SCC 484

This is the key Supreme Court precedent, heavily relied upon in paras 46–47. The Court distils several crucial principles from Jigar:

• The accused must be produced (physically or virtually) when the Court considers an application for extension of time to file a chargesheet.
• Presence is not a mere formality; it:
  • Enables the accused to become aware of the extension application; and
  • Gives him the opportunity to oppose the extension.
• Because extension of time directly affects the accused’s right to default bail, which is “intrinsically connected” with Article 21:
  • Failure to produce the accused and inform him is not a procedural irregularity that can be cured later.
  • It is a “gross illegality” violating Article 21.

The Delhi High Court applies these principles directly to Section 36A(4) NDPS Act, concluding that the failure to produce the petitioner or inform him of the extension application renders the extension Order void.

4. Other Supreme Court Decisions Cited

The petitioner also relied on:

• Judgebir Singh v. NIA, (2023) 17 SCC 48 – generally on procedural safeguards in special statutes.
• M. Ravindran v. Intelligence Officer, DRI, (2021) 2 SCC 485 – on the nature and enforceability of the right to default bail and its linkage with Article 21.

While these are not elaborately discussed in the text, they fortify the Court’s approach of reading default bail as an enforceable constitutional safeguard rather than a technical entitlement.

VII. Court’s Legal Reasoning

1. Nature and Trigger of the Default Bail Right

The Court first reiterates (paras 35–44) the settled position:

• Section 36A(4) NDPS Act modifies Section 187(3) BNSS by substituting the 90-day period with 180 days in specified NDPS cases.
• Absent a valid extension, the statutory maximum detention is 180 days.
• On expiry of this period, if:
  • no chargesheet/complaint is filed; and
  • the accused is prepared to furnish bail and applies for it;
  the Court is under a mandatory duty to release him on default bail.
• This right is indefeasible until extinguished by either:
  • a valid extension order; or
  • the filing of the chargesheet before the accused has exercised the right.

2. Extension Under Section 36A(4) NDPS Act: More than a Formality

The Court emphasises that extension is an exception to the rule of maximum detention and must strictly comply with:

1. The textual statutory requirements:
   • Report by the Public Prosecutor;
   • Indication of progress of investigation;
   • Specific reasons for further detention.
2. The procedural safeguards mandated by Article 21 as explained in Sanjay Dutt and Jigar:
   • Accused must be produced; and
   • Accused must be informed that an extension application is being considered.

Thus, the Court treats extension of time as a substantive judicial act that has the effect of depriving the accused of default bail, and hence subject to strict scrutiny.

3. Determining Whether the Petitioner Was Present or Not

The NCB argued that:

• The extension application was filed and allowed within the 180-day period (on 31.10.2025);
• The accused were “present through video conferencing” when the extension request was considered;
• Therefore, no right to default bail accrued and Jigar was inapplicable as it concerned cases where the statutory period had already expired.

The Court rejects this on factual and legal grounds:

• It examines the Order dated 31.10.2025 itself (paras 51–52):
  • The attendance portion reads only that the “accused persons are stated to be in JC”.
  • Had they been produced, the Order would typically mention “produced from JC” or “produced through VC”.
  • No such note appears.
• Even if the accused were produced earlier that day for extension of judicial remand, that does not establish:
  • That they were produced when the SPP’s extension report was actually heard, or
  • That they were informed that the extension request was being considered.

This leads to the crucial finding (para 53):

“It may have been done on the same day, but not at the same time. Non presence and no Notice is not a mere procedural irregularity, but is gross illegality that violates the rights of the accused under Article 21, as held in the case of Jigar (supra).”

4. Legal Consequence: Invalidity of the Extension Order

Applying Jigar, the Court concludes (para 54):

• An extension order passed:
  • without producing the accused; and
  • without informing him that the extension report is under consideration;
  is unsustainable.
• Non-compliance is not a curable procedural defect but a “serious violation” of Article 21.
• Therefore, the extension Order dated 31.10.2025 is invalid in law.

5. Accrual of the Default Bail Right

Once the extension order is held invalid, the Court reasons as follows:

• The original 180-day period from 15.05.2025 expired on 11.11.2025 (para 32).
• No chargesheet/complaint was filed up to that date (para 30).
• There was no valid extension in place after 11.11.2025 (para 55).
• The petitioner filed his default bail application on 12.11.2025 (para 31).

Thus, on 12.11.2025:

• The statutory period had expired;
• No chargesheet had been filed;
• No legally valid extension existed;
• The petitioner had invoked his right and expressed readiness to furnish bail.

By direct application of Uday Acharya and Sanjay Dutt, the High Court holds that the petitioner’s indefeasible right to default bail had crystallised, and the Trial Court’s rejection of bail (relying on an invalid extension order) was erroneous (paras 55–56).

6. Final Relief

On this reasoning:

• The Order dated 31.10.2025 granting extension under Section 36A(4) NDPS Act is set aside (para 57).
• Consequently, the Order dated 13.11.2025 rejecting default bail is also set aside (paras 57–58).
• The petitioner is held entitled to default/statutory bail and is released subject to specified conditions (para 59).

VIII. Complex Concepts Simplified

1. What is “Default Bail”?

Default bail (also called statutory bail) is:

• A right that arises when the police/prosecution do not complete investigation and file a chargesheet within the statutory maximum period.
• In normal cases: 60 days or 90 days (Section 187(3) BNSS).
• In serious NDPS cases: 180 days, extendable up to one year (Section 36A(4) NDPS Act).
• It is not based on merits (guilt/innocence), but on the prosecution’s delay and the accused’s right to liberty.

Once the period expires:

• The accused can apply for bail;
• If he is ready to furnish sureties, the Court must release him.

2. “Indefeasible Right” – What Does it Mean?

When courts call default bail an indefeasible right, they mean:

• It is a strong, enforceable legal right that cannot be taken away arbitrarily once it has arisen.
• However, it is also time-sensitive:
  • If the accused does not seek bail before a chargesheet is filed, the right ceases to exist.

3. Extension of Time under Section 36A(4) NDPS Act

The prosecution can ask the Special Court to extend the investigation period from 180 days up to one year. But this is allowed only if:

1. A Public Prosecutor, not the IO, files a report.
2. The report clearly states:
   • How much progress has been made in investigation; and
   • Why it is necessary to keep the accused in custody beyond 180 days.
3. The accused is produced before the Court and informed that the extension is being considered, so that he can oppose it.

4. Why is Production/Notice So Important?

Under Article 21, any procedure that deprives a person of liberty must be:

• Fair – the person affected gets a chance to be heard.
• Just – the decision is taken according to law and reason.
• Reasonable – not arbitrary or secretive.

If the Court decides, in the accused’s absence and without informing him, to extend the investigation period, it effectively removes his right to default bail without giving him a chance to object. The Supreme Court in Jigar held this to be:

• A “gross illegality”, not a minor technical defect.
• A violation of the accused’s fundamental right under Article 21.

5. Default Bail vs. Regular Bail on Merits

It is important to distinguish:

• Default bail:
  • Triggered by passage of time without chargesheet (and no valid extension).
  • Granted even if allegations are serious.
  • Focus is on prosecution’s delay and procedure, not on evidence.
• Regular bail (merits):
  • Considered after chargesheet is filed.
  • Depends on factors like strength of evidence, possibility of tampering, flight risk, etc.

Once a valid chargesheet is filed before the default bail right is exercised, the Court can no longer grant default bail; it must examine bail on merits.

IX. Impact and Implications

1. Strengthening Procedural Safeguards in NDPS Cases

This judgment has a clear and immediate impact on how NDPS prosecutions are conducted, especially in Delhi:

• Production and Recording of Presence:
  • Trial Courts must ensure that accused persons are produced physically or virtually whenever an extension application is heard under Section 36A(4).
  • The order-sheet must explicitly record such presence; a vague reference that the accused are “in JC” is insufficient.
• Transparency in Extension Hearings:
  • Extension applications cannot be decided “behind the back” of the accused.
  • Accused and their counsel must have an actual opportunity to oppose the extension.

2. Responsibilities of the Prosecution and SPP

The decision reiterates and reinforces:

• Independence of the Public Prosecutor:
  • The IO’s initial attempt to apply for extension directly was correctly withdrawn as defective.
  • Under Section 36A(4), it is the Public Prosecutor who must independently assess and present the need for extension, not merely rubber-stamp the IO’s request.
• Quality of the SPP’s Report:
  • While the judgment notes the petitioner’s criticism that the SPP’s report was “cryptic” and mirrored the IO’s application (para 16), the extension order is ultimately struck down on the Article 21 violation regarding notice/presence, without undertaking a detailed qualitative scrutiny of the report.
  • Nevertheless, the case sends a clear message that SPP reports must demonstrate real application of mind and comply with statutory requirements.

3. Guidance for Trial Courts

The judgment implicitly lays down best practices for Special Courts dealing with NDPS extensions:

• Before granting an extension:
  • Confirm and record the presence of the accused.
  • Note that the accused has been informed about the extension application and that he has been given a chance to respond.
  • Assess whether the SPP’s report actually sets out progress and reasons for further detention.
• When an accused applies for default bail:
  • Verify:
    • whether the statutory period has genuinely expired;
    • whether any extension order was validly passed;
    • whether a chargesheet has been filed before the bail application.

4. Strategic Considerations for Defence Counsel

For the defence bar, this case underlines:

• Close scrutiny of orders granting extension:
  • Check whether the order-sheet records the accused’s presence.
  • Check whether the SPP’s report is validly filed and reasoned.
• Timely filing of default bail applications:
  • File the application immediately after the statutory period expires, before any chargesheet is filed.
• Challenging defective extension orders:
  • If extension was granted without production/notice, a writ petition (as here) can be a potent remedy to set aside the extension and secure default bail.

5. BNSS Transition and Harmonisation with Special Laws

The judgment also illustrates the seamless transplantation of CrPC case law into the BNSS framework:

• Section 187 BNSS is treated as the functional successor to Section 167 CrPC, with identical principles on default bail being applied.
• Special statutes like the NDPS Act continue to modify these default periods for serious offences, but the underlying Article 21 rationale and Supreme Court precedents remain fully applicable.

X. Critical Assessment

1. Fidelity to Supreme Court Precedent

The Delhi High Court’s analysis is firmly anchored in:

• Sanjay Dutt – on the nature and timing of the right to default bail, and the interpretation of “notice” as production and intimation.
• Jigar – on the non-curability of failure to produce the accused at the time of considering an extension request.

By treating non-production and non-intimation as a jurisdictional defect rendering the extension order invalid, the Court faithfully applies the Supreme Court’s characterisation of such failure as a “gross illegality” under Article 21.

2. The Role of the Order-Sheet as Evidence of Compliance

An important practical aspect is the Court’s reliance on the language of the order-sheet/roznama:

• The distinction between “accused are in JC” and “accused are produced from JC/through VC” becomes crucial.
• Where the record is silent on production, the Court is unwilling to presume compliance.

This standard incentivises:

• Better drafting and record-keeping by trial courts;
• Accurate reflection of the accused’s presence or absence at each hearing.

3. Limited Engagement with the Quality of the SPP’s Report

The petitioner also attacked the substance of the SPP’s report, calling it “cryptic” and a mirror of the withdrawn IO application. The High Court, however, does not enter into a detailed evaluation of whether the SPP genuinely demonstrated:

• Progress of investigation; and
• Specific reasons for continued detention.

Instead, it confines itself to the more fundamental Article 21 defect of non-production. This is sound judicial economy: once the extension is invalid for want of notice/presence, there is no need to test its substantive merits. However, future cases may require deeper scrutiny of how rigorously courts examine the content of SPP reports under Section 36A(4).

4. Broader Deterrent Effect

The judgment sends a clear signal to investigative agencies and courts that:

• Shortcutting procedural safeguards to retain an accused in custody is impermissible, however serious the allegations.
• Failure to comply with basic fairness requirements may result in release on default bail, even in high-stakes NDPS cases.

This may encourage:

• More diligent and timely investigation;
• More cautious and rights-compliant use of extension provisions.

XI. Conclusion

Jaivardhan Dhawan v. NCB is a significant decision in the evolving BNSS era, particularly in the NDPS context. It firmly establishes that:

• An order extending time for investigation under Section 36A(4) NDPS Act, which has the effect of denying default bail, can only be passed after:
  • A proper, reasoned report by the Public Prosecutor; and
  • Production of the accused and intimation that such extension is being considered.
• Non-production and non-intimation are not curable irregularities but a “gross illegality” violating Article 21, rendering the extension order void.
• Where the statutory period (180 days in NDPS cases) expires with no valid extension and no chargesheet, and the accused applies for bail, the Court must recognise and enforce his indefeasible right to default bail.

In aligning NDPS practice with the Supreme Court’s robust jurisprudence on default bail, the Delhi High Court reinforces a critical constitutional message: even in grave offences, the State’s power to investigate and prosecute is subordinate to the individual’s right to liberty and fair procedure. This decision will likely serve as a leading precedent in Delhi and beyond for ensuring strict compliance with procedural safeguards in all applications for extension of investigation periods in special statutes.