Bombay HC Grants Default Bail: Non-Production of Accused While Extending Investigation Period Violates Mandatory Safeguard

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 07.10.2026

Bombay HC Grants Default Bail: Non-Production of Accused While Extending Investigation Period Violates Mandatory Safeguard

In a significant ruling on default bail, personal liberty and procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985, the Bombay High Court has granted statutory/default bail to eight accused after finding that the prosecution could not establish their production before the Special Court—either physically or through video conferencing—when the Court considered the prosecution’s request for extension of the investigation period beyond the statutory limit.

Justice Milind N. Jadhav held that production of the accused at the stage of considering an extension of time for investigation is a necessary safeguard and not an empty procedural formality. An order extending investigation directly affects personal liberty because it permits both continued investigation and continued detention beyond the period ordinarily prescribed by law.

The common order dated 5 October 2026 disposed of eight bail applications, including the lead application filed by Bhimaji Parshuram Sabale.

The Case: Over 1,837 Kg of Mephedrone Allegedly Recovered

• The case arose from a major narcotics investigation initially undertaken by Pune Police and subsequently taken over by the Narcotics Control Bureau (NCB).
• According to the prosecution case recorded in the judgment, police officers intercepted a vehicle near Mhasoba Temple, Somwar Peth, Pune, on 19 February 2024 and allegedly recovered 500 grams of Mephedrone (MD). Subsequent searches and disclosures led investigators to multiple locations.
• The investigation ultimately involved searches in Pune, Kurkumbh MIDC, Sangli and New Delhi. The order records that approximately 1,837 kilograms, 84 grams and 120 milligrams of MD were allegedly recovered during the entire operation, and 20 persons were arraigned as accused after the NCB took over the investigation.
• The enormous quantity involved made the prosecution’s case exceptionally serious. Yet, as the High Court emphasised, the gravity of an accusation cannot substitute compliance with the statutory safeguards governing continued detention.

Eight Accused Approach Bombay High Court

The common order dealt with bail applications filed by:

• Bhimaji Parshuram Sabale, Shoyeb Saeed Shaikh, Ayub Akbarsha Makandar, Cynthia @ Favour Ugababang Onyekpe, Ankita Narayanchandra Das, Sandeep Hanuman Singh Yadav, Devender Ramphool Yadav and Haider Noor Shaikh.
• Some applications invoked Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), while others invoked Section 167(2) of the Code of Criminal Procedure, 1973 or the relevant bail provisions, depending upon the applicant and procedural context.

At the heart of the dispute, however, was one common question:

• Was the extension of the statutory investigation period beyond 180 days legally valid when the accused were not shown to have been produced before the Special Court at the time the extension was considered?
• That question ultimately determined the fate of the applications.

Section 36-A(4) NDPS Act: 180 Days Is Not Automatically Extendable

• Section 36-A(4) of the NDPS Act modifies the ordinary period applicable to certain serious NDPS offences, including offences involving commercial quantity.

The provision permits investigation to continue for 180 days. If investigation cannot be completed within that period, the Special Court may extend the period up to one year, but only upon a report of the Public Prosecutor indicating:

• the progress of the investigation; and
• specific reasons for detention of the accused beyond 180 days.

The Bombay High Court stressed that the additional investigation period is not available to the prosecution as a matter of right.

An extension order is not merely an administrative continuation of the original period. It directly affects the accused’s personal liberty by authorising continued detention beyond the period fixed by the legislature.

Consequently, the statutory requirements governing extension must be strictly complied with.

What Happened With the Extension Application?

• The NCB’s Intelligence Officer filed an application on 29 July 2024 seeking an extension of six months beyond the initial period of 180 days.
• A communication was subsequently addressed by the Additional Sessions Judge, Pune, to the Superintendent of Yerawada Central Prison on 31 July 2024, directing that the accused be informed about the extension application and supplied with a copy so they could respond.
• The order records that the accused allegedly refused to accept copies.
• The Special Public Prosecutor’s report was thereafter filed on 13 August 2024, and on 14 August 2024, the Additional Sessions Judge allowed the application and granted an extension of another 180 days for investigation.
• The applicants challenged the legal efficacy of this extension.

Accused Argue Violation of Mandatory Procedure and Article 21

• The applicants contended that there was nothing on record to show that they had been produced before the Sessions Court when the Public Prosecutor’s report was filed or when the application for extension was considered.
• They relied principally upon the Supreme Court’s rulings in Sanjay Dutt v. State through CBI, Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat, Hitendra Vishnu Thakur v. State of Maharashtra and other authorities.
• Their central argument was that failure to produce an accused—physically or virtually—when an extension of the investigation period is considered is not a minor procedural defect. Since extension of time simultaneously authorises continuation of detention, compliance with the safeguard is directly connected with Article 21 of the Constitution and the right to personal liberty.

NCB Opposes Default Bail

• The NCB strongly opposed the applications.
• It argued that the applications for default bail were not maintainable because the chargesheet had already been filed.
• According to the prosecution, the indefeasible right to default bail under Section 167(2) CrPC arises only where the statutory period expires and the accused avails of that right before filing of the chargesheet.
• NCB further submitted that the application seeking extension had been filed before expiry of the initial 180-day period; the Trial Court granted the extension on 14 August 2024; the chargesheet was subsequently filed within that extended period; and the accused had not separately challenged the extension order.
• The prosecution also stressed the magnitude and gravity of the alleged offence, particularly the enormous quantity of MD involved and its alleged societal impact.
• The High Court, however, distinguished the question of default bail from the considerations applicable to regular bail on merits.

Bombay HC: Filing Extension Application Before 180 Days Is Not Enough

• One of the important principles emerging from the judgment is that merely filing an application for extension before the statutory period expires does not automatically enlarge the investigation period.
• The Court explained that the Special Court must consider the application and grant the extension in accordance with Section 36-A(4) and the procedural safeguards laid down by the Supreme Court.
• Therefore, the fact that the NCB had moved its application on 29 July 2024 before expiry of 180 days did not, by itself, answer the question.
• The real issue was whether the order granting the extension on 14 August 2024 was legally valid.
• The Court observed that if the extension was valid, filing of the chargesheet within the extended period would be significant. But if the extension itself was not granted in accordance with law, the prosecution could not rely on it to defeat a statutory right that accrued after expiry of the valid investigation period.

Accused’s Presence Is a Necessary Safeguard

• The Bombay High Court extensively considered the Supreme Court’s Constitution Bench judgment in Sanjay Dutt.
• The Court explained an important distinction.
• A separate written notice giving detailed reasons for the proposed extension is not necessarily required. But that does not mean the accused’s presence before the Court is unnecessary.
• The safeguard lies in ensuring that the accused is before the Court and knows that an application seeking extension of the investigation period—and consequently his continued detention—is being considered.
• The High Court observed that the statutory safeguard is not based merely upon formal written notice but upon the accused being before the Court when an order affecting continued detention is considered.

Jigar Case: Non-Production Is More Than a Procedural Irregularity

• The High Court then examined the Supreme Court’s ruling in Jigar alias Jimmy Pravinchandra Adatiya v. State of Gujarat.
• It noted that the Supreme Court had emphasised the significance of producing the accused when an application for extension of investigation is considered.
• Failure to produce the accused physically or through video conferencing, coupled with failure to inform him that the Public Prosecutor’s extension request was being considered, was treated as more than a mere procedural irregularity.
• The Bombay High Court emphasised that the procedure for extending investigation cannot be divorced from the accused’s right to personal liberty.

Qamar Ghani Usmani Does Not Dilute the Safeguard

• The NCB relied heavily upon the Supreme Court’s decision in Qamar Ghani Usmani v. State of Gujarat.
• The Bombay High Court rejected the argument that this later decision had diluted the requirement recognised in Jigar.
• According to the High Court, Qamar Ghani Usmani reconciled the earlier authorities and reiterated that when an application seeking extension of investigation is considered, the accused must be given notice and/or kept present so that he has knowledge that extension is being sought and granted.
• The High Court also carefully distinguished the facts.
• In Qamar Ghani Usmani, although the accused was not present when the first extension was granted, he was informed the very next day, subsequently remained present when a second extension was granted, raised no objection and did not challenge the earlier extension.
• Those circumstances were absent in the present case.
• This distinction became crucial.

Written Reply Cannot Replace Production of Accused

• The prosecution relied upon the communication issued to the Jail Superintendent and the opportunity allegedly given to the accused to submit their responses.
• The High Court did not consider this sufficient.
• The Court found no material establishing that the applicants were actually produced before the Trial Court when the extension application was considered.

Importantly, it held that:

• directing the Jail Superintendent to inform the accused;
• attempting to supply copies of the extension application;
• refusal by some accused to submit their say; or
• appearance of advocates for some accused

could not, on the facts, be equated with actual production of the accused before the Court when the prayer for extension was considered.

This distinction goes to the heart of the judgment.

Failure to Separately Challenge Extension Order Does Not Defeat Default Bail Claim

• The NCB also argued that the applicants had never independently challenged the Trial Court’s extension order.
• The High Court rejected the suggestion that the bail proceedings amounted merely to a collateral attack on the extension.
• The validity of the extension, the Court reasoned, was directly connected to whether the applicants had acquired an indefeasible right to default bail.
• If the extension was legally valid, the applicants could not rely solely on expiry of the original 180-day period.
• But if the extension could not legally be relied upon because the prescribed safeguards were not followed, the prosecution could not use that defective extension to defeat the statutory right.

Subsequent Chargesheet Cannot Retrospectively Cure an Invalid Extension

• This is another particularly important aspect of the ruling.
• The prosecution complaint/chargesheet was ultimately filed on 5 February 2025.
• The Bombay High Court held that this subsequent filing could not retrospectively validate an extension that had not been validly granted in accordance with law.
• In substance, once the original statutory period expired without a legally sustainable extension, the right to default bail under Section 187(3) BNSS read with Section 36-A(4) NDPS Act operated in favour of the applicants, subject to the other requirements of law.
• This makes the ruling particularly relevant to cases where the investigating agency eventually files its complaint or chargesheet but seeks to rely upon an earlier procedurally defective extension of investigation.

Gravity of NDPS Allegations Cannot Cure Procedural Non-Compliance

• The magnitude of the alleged narcotics operation was substantial. The prosecution relied upon the huge quantity of contraband allegedly recovered and the seriousness of offences involving commercial quantities of narcotic substances.
• The High Court nevertheless drew a clear distinction between regular bail and default bail.
• Gravity of the offence, evidence against an accused and statutory restrictions under the NDPS Act may assume great significance when regular bail is considered on merits.
• Default bail raises a different question: Has the prosecution completed the investigation within the statutory period, or obtained a legally valid extension of that period?
• The Court held that the seriousness of the allegations could not cure failure to comply with the procedure governing extension of the investigation period.
• This is a significant reaffirmation that statutory/default bail is rooted in procedural legality and personal liberty rather than an assessment of the merits of the prosecution case.

Bombay HC Grants Default Bail to All Eight Applicants

• The High Court ultimately concluded that the material before it did not establish that the applicants had been produced before the Trial Court, either physically or through video conferencing, when the extension application was considered.
• The Court therefore found that the prosecution could not rely upon the 14 August 2024 extension order to defeat the applicants’ statutory right.
• Consequently, all eight bail applications were allowed for statutory/default bail.

The Court directed the immediate release of:

• Bhimaji Parshuram Sabale, Shoyeb Saeed Shaikh, Ayub Akbarsha Makandar, Cynthia @ Favour Ugababang Onyekpe, Ankita Narayanchandra Das, Sandeep Hanuman Singh Yadav, Devender Ramphool Yadav and Haider Noor Shaikh, subject to the conditions imposed by the Court.
• Among other conditions, each applicant was required to furnish a P.R. Bond of ₹1 lakh with one or two sureties in the like amount and report to the investigating officer once every month.
• Special directions were also issued in respect of Cynthia @ Favour Ugababang Onyekpe as a foreign national.

Key Legal Principles Emerging From the Judgment

The Bombay High Court’s decision establishes or reiterates several important principles for NDPS investigations and default-bail proceedings:

• First, extension beyond 180 days is not automatic. Section 36-A(4) empowers the Special Court to extend the investigation period, but only after statutory requirements are fulfilled.
• Second, production of the accused is a substantive safeguard. The accused must be produced before the Court—physically or through video conferencing—when the request for extension is considered.
• Third, written notice and physical/virtual production are distinct concepts. An opportunity to submit a written reply cannot automatically substitute the requirement of keeping the accused before the Court.
• Fourth, filing an extension application within 180 days does not itself extend the investigation period. A legally sustainable judicial order granting extension is required.
• Fifth, a later chargesheet cannot retrospectively cure an invalid extension. If the statutory period expires without a valid extension, the prosecution cannot rely on a subsequent chargesheet to erase the consequences.
• Sixth, gravity of the alleged NDPS offence does not cure procedural illegality. Seriousness and quantity may matter for regular bail, but they do not determine whether the statutory investigation period was lawfully extended.
• Seventh, default bail is closely connected with personal liberty. The procedural safeguards surrounding continued detention must therefore be strictly observed.

Significance for NDPS Investigations

• The ruling carries considerable practical significance for the NCB, police authorities, Special Public Prosecutors and NDPS Special Courts.
• Section 36-A(4) permits investigation beyond 180 days in qualifying NDPS cases, but the extension cannot be treated as a routine procedural exercise.
• Investigating agencies must ensure that the Public Prosecutor’s report satisfies the statutory requirements, while Special Courts must independently ensure compliance with the procedural safeguards applicable when continued detention is sought.
• Most importantly, the accused’s presence at the relevant stage must be demonstrable from the judicial record.
• The decision therefore places responsibility not merely upon the investigating agency but also upon the Court dealing with the extension request to ensure that a liberty-affecting order is made in accordance with law.

Default Bail Is Different From Regular Bail

• The judgment also provides an important conceptual distinction for criminal-law practice.
• A regular bail application ordinarily requires examination of matters such as the nature and gravity of allegations, evidence collected, possibility of tampering, flight risk and statutory restrictions—including Section 37 of the NDPS Act where applicable.
• Default bail is fundamentally different.
• It arises from the statutory limitation placed upon investigative detention. The question is whether the prosecution has completed investigation within the time permitted by law or secured a legally valid extension.
• Accordingly, even exceptionally serious allegations cannot substitute the procedural conditions prescribed for extending detention.

Conclusion

The Bombay High Court’s decision in Bhimaji Parshuram Sabale & connected matters is an important reaffirmation of procedural safeguards governing default bail under the NDPS Act.

Despite the extraordinary scale of the alleged narcotics recovery, the Court held that seriousness of allegations cannot cure non-compliance with the procedure governing extension of the statutory investigation period.

The decisive issue was not whether the allegations were grave, but whether the accused had been kept before the Court when an order authorising their continued detention beyond the statutory period was considered.

Finding no material establishing their physical or virtual production at that critical stage, the Bombay High Court held that the prosecution could not rely upon the extension order dated 14 August 2024 to defeat the applicants’ statutory right.

The decision consequently reinforces a fundamental proposition of criminal procedure: where continued detention depends upon a statutory extension, procedural safeguards affecting personal liberty are substantive requirements—not empty formalities.

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Source: Bombay High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi